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Class Action Lawsuit Alleges Asylum EAD Clock is Unfair

December 22, 2011

ClockA class action lawsuit was filed last week against US immigration agencies on behalf of many asylum applicants who were wrongly denied work authorization, A.B.T., K.M.-W., G.K., L.K.G., D.W. v. USCIS; EOIR (Case No. 2:11-cv-02108 A.B.T). The nationwide lawsuit was filed by the American Immigration Council’s Legal Action Center (LAC) against the U.S. Citizenship and Immigration Services (USCIS) and the Executive Office for Immigration Review (EOIR) in the United States District Court in Seattle. The suit alleges that the USCIS and EOIR delays violate the Constitution, federal statutes, and governing regulations.

Asylum seekers are not eligible for work authorization during the 180-day period after the application is filed. But according to federal law, asylum applicants are to be granted work authorization after the application has been pending for 180 days. Due to unlawful and unfair practices and policies, U.S. immigration agencies have prevented asylum seekers from obtaining work authorization after the 180-day waiting period has elapsed. For example, one named plaintiff in the lawsuit is a man from China who filed his asylum application in 2003, and he has been pursuing work authorization for years without success.

In calculating the 180-day period, the USCIS relies on immigration judge determinations who work for the EOIR, which results in arbitrary policies on when the 180-day “clock” should start and stop. This, along with the increasing backlog in U.S. immigration courts, has unlawfully prevented asylum seekers from working. According to the lawsuit, these unlawful policies and practices prevented asylum applicants from obtaining work authorization and forced them to rely on the goodwill of others to support themselves and their families while they await decisions on their asylum applications, and this process can take many months and sometimes years.

The 180-day period (or “asylum EAD clock”) may be suspended, but only for applicant-requested or caused delay of the adjudication of their asylum application, according to the lawsuit. USCIS and EOIR policies result in EAD clocks being arbitrarily started and stopped, and even permanently stopped in some cases. Many asylum seekers have not received adequate notice that their EAD asylum clocks have stopped, and they are consequently deprived of a meaningful opportunity to remedy these determinations.

The lawsuit seeks a permanent injunction ordering that if an asylum applicant is in removal proceedings before an immigration judge, any decision to stop or not start the asylum EAD clock must be made on the record, and only after the applicant has been notified of the consequences or requesting or causing a delay and given an opportunity to respond. The suit also seeks a permanent injunction ordering immigration agencies to establish an adequate process for an asylum applicant to contest an erroneous asylum EAD decision, an order to start the asylum EAD clock when a complete asylum application is filed, an order to start or restart the asylum EAD clock following a remand of an asylum case by either the Board of Immigration Appeals or a federal court of appeals, and a permanent injunction ordering the USCIS to readjudicate asylum applications in accordingly.

Attorney Gus Shihab has more than 18 years of experience fiercely defdending the rights of immigrants. For more information, please contact him for a free initial consultation.

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