The Asylum Clock &Employment Authorization by Marshall H. Hong, J.D. www.Hong-Immigration.com www.ImmigrationInfoSite.com
(Disclaimer)This presentation is intended only as an overview of the AsylumClock and its relevance to Employment Authorization eligibility.The information presented is based on EOIR Memorandumdated November 15, 2011, setting forth policy and procedure tobe followed by the Immigration Court.If you have questions regarding your particular situation, youshould consult with a qualified immigration attorney.At the conclusion of this slideshow you will find contactinformation for the author – please feel free to contact theauthor if you have specific questions or would like additionalinformation on this topic.
Some Definitions & AcronymsThe following terms will be used in this presentation: DHS – Department of Homeland Security (may also used to refer to the government’s attorneys in a Removal Proceeding) EOIR – Executive Office for Immigration Review (the Immigration Court is a part of the EOIR) IJ – Immigration Judge USCIS – U.S. Citizenship and Immigration Services The terms “Applicant” and “Respondent” may be used interchangeably
What is the Asylum Clock?The “asylum clock” measures the length of time that anasylum application has been pending, tracking thenumber of days elapsed beginning on the date acompleted asylum application is properly filed, but notincluding delays caused by the asylum applicant. please note this presentation will not discuss general principles of asylum or removal (deportation) – please look for articles on asylum, removal, & related topics at: www.ImmigrationInfoSite.com
Eligibility for Employment AuthorizationIn general, once an individual files an application forasylum with U.S. Citizenship and Immigration Services,the government’s goal is to issue a decision on theapplication within 180 days after the date on which theapplication was filed.In the event the application remains pending for morethan 180 days after it was filed, an applicant may beeligible for employment authorization – except that“any delay requested or caused by the Applicant shallnot be counted as part of these time periods.”
Asylum Applications with USCIS or before the Immigration JudgeAn Applicant may file an “affirmative” asylum applicationwith USCIS or, if the individual is already in a Removal(Deportation) Proceeding, he may file a “defensive”asylum application with the Immigration Court, where anImmigration Judge will adjudicate the application.If USCIS does not approve the affirmative application, itwill refer the Applicant to Immigration Court, where theImmigration Judge will review the application for possibleapproval.
Starting and Stopping the Asylum ClockThe asylum clock begins to run on the date on whichthe Applicant properly files a complete asylumapplication, either affirmatively with USCIS, ordefensively at the Immigration Court.If USCIS does not approve the affirmative application,but refers the Applicant to the Immigration Court, theclock will continue to run, including the days duringwhich the application was pending with USCIS.
ExampleAn Applicant files an “affirmative” asylum applicationwith USCIS. The asylum clock begins to run on the dateon which the completed asylum application wasproperly filed with USCIS. If the USCIS Asylum Officerefers the case to the Immigration Court after the clockhas been running for 60 days, then the ImmigrationCourt’s clock begins running at 60 days, on the date onwhich it was referred to the Court.
Starting and Stopping the Clock during Removal ProceedingsAs stated above, the asylum clock will continue to run whilethe case is pending before an Immigration Judge, except fordelays requested or caused by the Applicant. Therefore, eachtime an Applicant appears before the Immigration Judge,when the case is adjourned, the clock will either run or stopdepending on the reason for which the case was adjourned: If the hearing was adjourned because of a delay requested or caused by the Applicant, the asylum clock will stop. If the hearing was adjourned because of a delay requested or caused by the government attorneys or the Immigration Judge, the clock will run until the next hearing date.
Fewer than 75 Days at Time of ReferralIf fewer than 75 days are on the clock as of the date onwhich it is referred to the Immigration Court, the case istreated as an “expedited asylum case”, and the Courtshould complete the case within 180 days after the dateon which the application was originally filed – notincluding delays requested or caused by the Applicant.(Note: once the Applicant is referred to the ImmigrationCourt, he will be referred to as a “Respondent” forpurposes of the Removal Proceeding.)
Fewer than 75 Days at Time of Referral (continued)When the asylum case is treated as an “expedited asylumcase”, the Immigration Court should attempt toadjudicate the case within 180 days. If the Applicant/Respondent waives the expedited hearing, the delay willbe considered to have been “requested or caused by” theApplicant, and therefore the asylum clock will stop as ofthe date on which the Applicant waives the expeditedhearing. If there are fewer than 180 days on the asylumclock on the date on which it is stopped, the Applicant willnot be eligible for employment authorization.
More than 75 Days at Time of ReferralIf more than 75 days are on the clock as of the date onwhich it is referred to the Immigration Court, the casewill not be treated as an “expedited asylum case” andwill not be subject to the 180-day adjudication deadline.The asylum clock will run and stop as usual.
Withholding of Removal & the Convention Against TortureIf an Applicant is not eligible for Asylum (for example, wherethe Applicant failed to file his application for asylum within12 months after entering the U.S.), he may still be eligible forRelief from Removal in the form of Withholding of Removalor protection under the Convention Against Torture(“CAT”)*.In these cases, there is no asylum clock, and therefore noeligibility for employment authorization. for more on these topics, please visit: www.ImmigrationInfoSite.com
Rescheduled Hearing DatesOnce a future hearing date has been scheduled by theImmigration Judge, it may be cancelled and rescheduled to alater date, either at the request of one of the parties (theApplicant or the DHS attorneys), or by the Immigration Courtwithout the request of either party: If the case is rescheduled at the request of the Applicant, the clock will stop (or remain stopped) as of the date on which the hearing was originally scheduled to take place. If the case is rescheduled at the request of the DHS, or by the Immigration Court on its own motion, the clock will begin to run (or continue to run) as of the date on which the hearing was originally scheduled to take place.
Change of Venue to Another Immigration Court LocationUnder certain circumstances, and Applicant/Respondent may filea motion with the Immigration Court for a “Change of Venue”,requesting that the case be transferred from an ImmigrationCourt in one city to an Immigration Court in a different city. Ifthe IJ grants the motion, then the asylum clock will stop running(or remain stopped) from the date the motion is granted untilthe next hearing (in the new location).On the other hand, if the DHS attorneys request the Change ofVenue, and the IJ grants the motion, the asylum clock willcontinue to run (or begin to run) from the date the motion isgranted until the next hearing (in the new location).
Cases on AppealOnce an Immigration Judge issues a final decision on aRespondent’s asylum application, either party mayappeal the IJ’s decision. However, the asylum clockpermanently stops once the IJ issues his or her decision.Accordingly, if a decision is entered before 180 dayshave elapsed, the Applicant will not be eligible foremployment authorization during the time the appeal ispending.
ConclusionThe asylum clock will determine whether, and when, anasylum applicant may be eligible for employmentauthorization. This presentation is intended only as abrief overview of how the asylum clock works, includingwhen and why it starts and stops. For a more in-depthdiscussion of the asylum clock, please look for articlesand other materials on this topic at: www.ImmigrationInfoSite.com
More on Refugees, Asylees, and other Immigration Law IssuesFor more information on Refugee and Asylum Law,and related issues such as Relief from Removal andTemporary Protected Status, please look for articles,videos, slideshows, and other materials at: www.ImmigrationInfoSite.com Thank you!!
For More Information, visit us at:www.ImmigrationInfoSite.com www.Hong-Immigration.com or contact Marshall Hong by email at: Marshall@Hong-Immigration.com