Asylum Clock

Attorneys and asylum applicants across the country regularly experience problems with the “asylum clock” — a clock which measures the 150 days after an applicant files an asylum application before the applicant can apply for an employment authorization document (EAD). These problems include a lack of clear guidance about how immigration agencies should interpret and implement the law governing the clock, the lack of a formal review process when an EAD is denied, and a general lack of transparency in USCIS’ administration of the clock. As a result of these problems and increasing court backlogs, asylum applicants often wait much longer than the legally permitted timeframe to receive a work permit and are thus unable to support themselves and their families while their applications are pending.

The LAC has long advised attorneys about methods for addressing asylum clock problems and advocated for systemic change in the current asylum clock process. These efforts included the issuance, in 2010, of a comprehensive report on the asylum clock, Up Against the Clock:  Fixing the Broken Employment Authorization Asylum Clock, with Penn State Law School’s Center for Immigrants’ Rights. The report recommends solutions to asylum clock problems intended to ensure that asylum applicants become eligible for employment authorization without unnecessary delays and closer to the timeframe outlined in the INA.

On December 15, 2011, after advocacy efforts proved unsuccessful, the LAC and litigation partners filed A.B.T. et al v. U.S. Citizenship and Immigration Services, a class action lawsuit against USCIS and EOIR challenging asylum clock policies and practices.

CASES | ADVOCACY | RESOURCES

CASES

A.B.T. et al. v. U.S. Citizenship and Immigration Services, No. 11-02108 (W.D. Wash. filed December 15, 2011)

The complaint, co-filed with the Northwest Immigrants Rights Project, Gibbs Houston Pauw, and the Massachusetts Law Reform Institute, was submitted on behalf of untold numbers of asylum applicants wrongfully denied work authorization due to unlawful agency policies and practices. The named plaintiffs include asylum seekers who have pursued their cases for years without work authorization—including a man from China who initially filed his asylum application in 2003.

Plaintiffs and the class challenge several of defendants’ policies and practices. First, decisions related to the clock are made without notice to the asylum seeker and are not subject to sufficient review. Second, the clock does not start until the first hearing before an immigration judge, even if the asylum application has been filed with the immigration court and the first available hearing date is many months in the future. And third, immigration judges refuse to start or restart the clock in cases that the Board of Immigration Appeals or federal courts of appeals remand for a new decision on the asylum application. Plaintiffs allege defendants’ policies and practices violate the U.S. Constitution, the Immigration and Nationality Act (INA), the governing regulations, and the Administrative Procedure Act (APA).

On March 12, 2011, defendants filed oppositions to plaintiffs’ motions to certify a class and for a protective order for redaction of plaintiffs’ names in court filings. Plaintiffs’ responses are due on March 23, 2011. On March 9, 2011, the parties filed a joint motion requesting that the court grant their request to enter into the Court’s mediation program on or near May 1, 2012. The parties additionally stipulated to an extension of 60 days, until May 14, 2012, of the deadline for defendants to respond to the complaint and to file the Administrative Record. The parties stated in their motion that they hope that the mediation program might lead to a resolution of this matter without further involvement of the Court.

On July 20, 2012, the court granted plaintiffs’ motion for a protective order and the parties’ stipulated motion to stay proceedings to pursue mediation.  The parties participated in two rounds of mediation – in June and October of 2012.  On February 11, 2013, after prolonged settlement negotiations, the court ordered the parties to provide a notice of settlement and dismissal to the court by March 29, 2013, or the court would lift the stay and issue an amended case schedule. On March 29, the parties issued a joint motion to stay proceedings for two additional weeks for defendants to finalize the settlement agreement.

On April 12, 2013, the parties submitted a Joint Motion for Preliminary Approval of the Settlement Agreement and Setting of a Fairness Hearing, as well as a Joint Motion for Class Certification. In April, 2013, the parties signed a comprehensive settlement of the entire lawsuit which included a stipulation to class certification. In addition, the parties agreed to a proposed Notice to Class Members that would explain the terms of the settlement agreement

• Press Release
• Class Action Complaint
• Motion for Class Certification
• Frequently Asked Questions about A.B.T. et al. v. USCIS, et al.
• Call For Plaintiffs: Asylum EAD Clock Class Action
• Asylum Clock Plaintiff Questionnaire
• First Amended Complaint
• Order Granting Plaintiff’s Motion For A Protective Order For Redaction Of Their Names Except For First Initials
• Order granting parties until March 29, 2013 to file a notice of settlement and dismissal
• Joint Status Report
• Joint Motion for Preliminary Approval of the Settlement Agreement
• Joint Motion for Class Certification
• Settlement Agreement
• Notice to Class Members
• Order

ADVOCACY

Testimony to the Senate Committee on the Judiciary Hearing on “Improving Efficiency and Ensuring Justice in the Immigration Court System” (May 25, 2011 ) (highlighting problems with the current asylum clock system and referring the Committee to the recommendations in the report, Up Against the Clock: Fixing the Broken Employment Authorization Asylum Clock)

Response to the Department of Homeland Security’s request for comments in connection with a review of existing regulations: Docket No. DHS-2011-0015 - Reducing Regulatory Burden; Retrospective Review Under Executive Order 13563, 76 Fed. Reg. 13526 (Mar. 14, 2011) (submitted April 13, 2011) (requesting that DHS expand existing regulations to clarify the types of delays that justify stopping the asylum clock and to distinguish the asylum clock from EOIR’s asylum adjudication clock)

Response to the Department of Justice’s request for comments in connection with a review of existing regulations: OLP Docket No. 150 - Reducing Regulatory Burden; Retrospective Review under Executive Order 13563, 76 Fed. Reg. 11163 (Mar. 1, 2011) (submitted March 31, 2011) (requesting that DOJ consider regulatory amendments that would remedy EAD asylum clock problems)

LAC and Penn State Law School’s Center for Immigrants’ Rights Report: Up Against the Clock: Fixing the Broken Employment Authorization Asylum Clock (Feb. 2010)

LAC and Penn State Law School’s Center for Immigrants’ Rights Press Release: New Report on Asylum Work Authorization “Clock” Released: Broken Asylum Clock Prevents Asylum Applicants from Working

American Immigration Council’s Immigration Impact Blog: New Report Provides Solutions to Broken Asylum Employment Authorization Clock

RESOURCES

LAC practice advisory: Employment Authorization and Asylum: Strategies to Avoid Stopping the Asylum Clock (October 2012). This practice advisory provides an overview of the work authorization process for asylum applicants, addresses the operation of the “asylum clock,” which is used to track the 180-day waiting period during which an applicant cannot apply for work authorization, and discusses possible solutions to several common asylum clock problems.

The Legal Action Center's comments on EOIR's new guidance on Asylum Clock:  New Asylum Clock Policies Provide No Significant Systemic Change (Nov. 21, 2011)

U.S. Citizenship and Immigration Services Ombudsman, Employment Authorization for Asylum Applicants: Recommendations to Improve Coordination and Communication (Aug. 26, 2011)

National Law Journal: 'Asylum Clock' Broken, Say Immigration Advocates ( Feb. 12, 2010) by Marcia Coyle.

Memorandum from Chief Immigration Judge, Brian O’Leary, Operating Policies and Procedures Memorandum 11-02: The Asylum Clock (Nov, 15, 2011)

Memorandum from the Office of the Chief Immigration Judge, Operating Policies and Procedures Memorandum 05-07: Definitions and Use of Adjournment, Call-up and Case Identification Codes (June 16, 2005)

Memorandum from Chief Immigration Judge, Michael J. Creppy, Revised Operating Policy and Procedures Memorandum No. 00-01, Asylum Request Processing (August 4, 2000)