Stopping the Clock. What does it
mean?
Question: I have applied for
asylum over two years ago and my work-permit has still not arrived. I am
desperate and cannot get a job. The Court says that the ‘clock has stopped’ and
I am not eligible. What exactly is the ‘clock’ and how does it affect me?
Answer: Applicants for asylum in
the
A general lack of transparency
plagues the administration of the asylum clock. Immigration judges (IJ’s) and
asylum officers (AO’s) often fail to inform the noncitizen of the determination
to stop the clock. Asylum applicants who are unaware that the IJ has stopped
the clock may discover these fact weeks or sometimes months later when the DHS
denies their application for employment authorization.
Sometimes the Immigration Court
(EOIR) improperly determines that the applicant for asylum caused the delay. Another
problem involves restarting the asylum clock. The regulations require that the
IJ restart an asylum clock when a delay no longer exists, but in practice, the
asylum clock is often improperly permanently stopped. For example, EOIR’s
interpretation implies that once there is a denial of asylum, the EAD clock is
permanently stopped. However, the only time the asylum EAD clock is permanently
stopped is when the applicant does not show exceptional circumstances for
failing to attend an interview at the asylum office or the hearing at
immigration court.
Implementation problems occur
when the IJ stops the clock contrary to EOIR policy. A common problem occurs
when testimony at the asylum hearing could not be completed in the allotted
time. EOIR policy states that adjourning because the case could not be
completed in the time allotted should not stop the clock. However, IJ’s are
improperly stopping the clock, finding that the applicant for asylum is the
cause for the delay. This is incorrect. It is important that arguments be made
at
Question: Is there only one
asylum clock?
Answer: No. There are actually
two asylum clocks. 1) The Asylum Adjudication clock: The asylum adjudication
clock measures the number of days an asylum application has been pending
adjudication. 2) The Asylum EAD clock: The asylum EAD clock also measures the
number of days after submission of an asylum application that must elapse
before the applicant may be provided an EAD. “An applicant for asylum is not
entitled to employment authorization, but such authorization may be provided
under regulation by the Attorney General. An applicant who is not otherwise
eligible for employment authorization shall not be granted such authorization
prior to 180 days after the date of filing of the application for asylum.”
Different events may stop either
the asylum adjudications clock or both the asylum adjudications clock and
asylum EAD clock.
Question: How does the Asylum EAD
Clock affect work authorization?
Answer: The clock starts on the date that the
applicant submits a complete asylum application. Once the asylum EAD clock
reaches 150 days, the asylum applicant may apply for an EAD. An asylum officer
may grant, deny, refer or dismiss an asylum application. Only a denial of an
asylum application makes the applicant ineligible for an EAD. A referral to the
immigration court by an asylum officer is not a denial.
After the applicant has filed an
application for an EAD, the U.S. Citizenship and Immigration Services (CIS) has
30 days from the date of the filing to grant or deny the EAD application. CIS
cannot grant the application before the asylum clock has reached 180 days after
the initial filing of the asylum application. The regulations state that “(a) n
applicant whose asylum application has been denied by an asylum officer or by
an immigration judge within the 150-day period shall not be eligible to apply
for employment authorization.” In addition, the regulations say that if an
asylum application is denied while an application for employment authorization
is pending with the CIS, the employment authorization application will be
denied. However, respondents who have received an EAD and later appeal a denial
of asylum may continue to renew their EAD throughout administrative and
judicial review. The EAD is renewable during the appeals process, including
judicial review. When all appeals and judicial review have been exhausted, if
the asylum application has been denied, work authorization terminates on the
expiration date of the EAD.
Question: How is the asylum EAD
clock stopped?
Answer: A delay in the
adjudication “caused” by the asylum applicant will stop the clock only during
the time the delay exists. The regulations provide only a limited number of
examples of what constitutes an applicant caused delay. By regulation, “delays
caused by failure without good cause to follow the requirements for fingerprint
processing” stop the clock. The time between the issuance of a request for
evidence and the receipt of a response to that request also is excluded. Additionally,
the period during which the applicant fails to appear to receive the decision
of the asylum officer will not be counted towards the 180 days. The asylum
clock restarts when the applicant “does appear to receive and acknowledge
receipt of the decision or until the applicant appears before an immigration
judge in response to the issuance of a charging document. The clock permanently
stops if an asylum applicant fails to appear for an interview with an asylum
officer or for a hearing before an IJ unless the applicant demonstrates that
the failure to appear was due to exceptional circumstances.
Therefore, while IJ’s in most
instances ‘stop the clock’, it is done improperly and against the regulations. Arguments
should be made to get clock moving again so that you can get your work-permit.
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