From American Immigration Council's Legal Action Center

A.B.T. et al. v. U.S. Citizenship and Immigration Services et al., No. 11-2108 (W.D. Wash. filed December 15, 2011).

Last week, the American Immigration Council’s Legal Action Center (LAC) filed a nationwide class action complaint against U.S. Citizenship and Immigration Services (USCIS) and the Executive Office for Immigration Review (EOIR) alleging widespread problems with the asylum “clock”—the system used by immigration officials to determine when noncitizens with pending asylum applications become eligible to obtain work authorization in the United States.

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 unable to lawfully work in the United States due to unlawful agency policies and practices. The named plaintiffs include asylum seekers who cannot receive employment authorization until at least 2013.

With limited exceptions, federal law requires USCIS to grant work authorization to any person with an asylum application pending for 180 days. In calculating this period, however, USCIS relies on determinations made by immigration judges. As described in the class certification motion, arbitrary EOIR policies on when the “clock” should start and stop—combined with growing backlogs in U.S. immigration courts—have unlawfully prevented asylum seekers from working.

The complaint addresses three primary problems with the administration of the asylum clock. First, decisions to stop the clock—which regulations permit for any “delay caused by the applicant”—are made without notice to the asylum seeker and are not subject to appeal. Second, for asylum claims being raised in removal proceedings, the clock does not start until the first appearance before the immigration judge, rather than the filing of the application with the immigration court. And third, immigration courts refuse to restart the clock in cases that have been remanded for further consideration by federal courts to the Board of Immigration Appeals (BIA).

The complaint alleges that taken together, the problems with the asylum clock violate the Due Process Clause of the Fifth Amendment, as well as provisions of the Immigration and Nationality Act (INA), Administrative Procedure Act (APA), and federal regulations.

In connection with this lawsuit, the LAC would like to hear about certain problems stemming from specific asylum clock policies and practices (see “Requests for Evidence” below).