Is the Asylum "clock" Broken?

Here is an interesting article published by Marcia Coyle
'Asylum clock' broken, say immigration advocates
Marcia Coyle

February 11, 2010


Immigrants seeking asylum in the United States often face excessive delays in getting authorization to work and, in some cases, are forced to work illegally out of desperation because of government mismanagement of their work applications under federal laws and regulations, according to a report being released Feb. 12 by two advocacy groups.

The problems center around the so-called asylum clock, which potentially affects more than 50,000 asylum applicants per year, according to the report by the Center for Immigrants' Rights at the Penn State Dickinson School of Law and the American Immigration Council's Legal Action Center.

The clock, officially known as the Employment Authorization Asylum Clock, is "a less known but critically important component" of the immigration adjudicatory process, said the report's authors. It measures the number of days after an asylum application is filed before the applicant is eligible for work authorization.

The law's waiting period for work authorization is 180 days. There is also a 180-day case completion deadline for immigration judges to rule on asylum applications. The law allows asylum officers and immigration judges to stop the work clock for delays in the adjudication process caused by the applicant.

In practice, however, applicants wait much longer than the legally permitted time frame, and sometimes never receive a work permit, the report found.

"We are interested in the practices in immigration proceedings — in what works and doesn't work," said Emily Creighton, staff attorney at the American Immigration Council. "We became sort of a clearinghouse for immigration attorneys who are coming up against this unexpected problem when representing asylum applicants. It's such an important issue for applicants. They would like to work and already are waiting six months."

The Council and the Center found some of the following problems with the administration of the work clock by both the U.S. Citizenship and Immigration Services (USCIS), which acts on the work permits, and the Executive Office of Immigration Review, which oversees immigration courts:

Lack of transparency. Immigration judges often do not inform asylum applicants that their work clock is running, or that they have stopped the clock, and there are no findings on the record. Practitioner interviews revealed that applicants frequently learn that the clock has been stopped only when USCIS rejects their application for work authorization. At that point, the applicants may never get a work permit before the final adjudication of their asylum application.

Clerical errors. According to the government's own estimates, errors in stopping the work clock are due to coding mistakes in the computer tracking system and the error rate is 60/40, meaning the government is wrong 40% of the time.

Lack of clarity. In some immigration courts, it is not clear who controls the clock. Attorneys have asked on the record to have the clock re-started after an improper stoppage, only to have the judge say she had no authority to do so and that the attorney should speak to the court administrator. In turn, court administrators have refused to correct clock information that was entered incorrectly, stating that it is "impossible" to re-start or correct the work clock.

Interpretation problems. Immigration courts and judges have wide discretion to define "delay requested or caused by the applicant." Different judges will rule differently on what a delay is in order to determine whether to stop the clock. And some judges stop clock whenever delay benefits the application, even where the continuance was requested by the government.

Case completion goals. The adjudication clock for deciding asylum cases is different from the work clock. But case completion goals have led immigration judges to treat the two clocks as one and to find ways to stop the asylum clock to take pressure off of their dockets.

The report offers recommendations on how to fix the problems, which, it says, are extensive but can be resolved.

"We've had government involvement on this issue," said Creighton. "Everyone would like to fix it, but there's sort of passing the buck among the agencies."

Work authorizations are decided by USCIS and the work clock is being stopped by asylum officers and the Executive Office of Immigration Review, she explained. Immigration judges are making decisions on the ground on why the clock should stop and USCIS is listening to them.

"Immigration judges say, `The clock is not our problem; we're not in charge of granting work authorizations,'" she added. "USCIS is saying, `We're looking at what is happening in the asylum proceedings.'"

The report gives the government "practical solutions for fixing the asylum clock and ensuring that genuine asylum seekers have the ability to earn a livelihood while their applications are pending," said Shoba Sivaprasad Wadhia, director of Penn State Law's Center for Immigrants' Rights.

Marcia Coyle can be contacted at mcoyle@alm.com.