The Executive Office for Immigration Review (EOIR) issued an updated memorandum – Operating Policies and Procedures Memorandum 11-02: The Asylum Clock – to provide uniform policies regarding the EOIR asylum clock for all immigration courts. The memorandum goes into effect on Dec. 19, 2011. In addition to increasing efficiency by reducing the time that immigration judges and court staff spend on administering the asylum clock, the new guidance addresses concerns expressed by members of the public. This information is very useful for applicants taking note of the clock for work permit purposes.
The EOIR asylum clock is an administrative tool that measures the length of time an asylum application has been pending for each asylum applicant in removal proceedings, not including any delays requested or caused by the applicant. The EOIR tracks the time an asylum application has been pending to implement the asylum adjudication goal of the Immigration and Nationality Act. Generally, the asylum clock calculates a mandatory 180-day waiting period before an asylum applicant can receive work authorization. Any delay caused by the asylum applicant will stop the clock and prolong the waiting period for work authorization. For example, if the hearing was adjourned because of an applicant/respondent-caused delay, the clock stops until the next hearing.
The new memorandum clarifies certain longstanding problems regarding the EOIR asylum clock calculation. The new guidelines clarify several issues that affect how the asylum clock runs including the starting, stopping, and restarting of the asylum clock; the one-year asylum application filing deadline (the asylum clock runs, except during applicant-caused delays, until the immigration judge has adjudicated whether the asylum application was filed within 1 year after the date of the applicant’s arrival in the United States); and the rescheduling of hearings. In particular, it clarifies that the asylum clock should not stop in the event of a delay caused by a government attorney or the court, and that immigration judges must indicate on the record the reason for postponing a case.
However, there are still existing unclear problems. According to Legal Action Center (American Immigration Council)’s Press Release, the organization thinks that EOIR fails to resolve more systemic problems through its new guidance including:
• It does not require the judge to state whether the clock has started or stopped or how many days are on the clock. In addition, it does nothing to improve the existing review process for applicants who seek to resolve mistakes with their asylum clocks.�
• It reaffirms the policy that the asylum clock will begin to run only when the asylum application is accepted by an immigration judge at an initial hearing, despite the fact that applications can be filed months in advance of an initial hearing.
• It reaffirms the policy that, even after an applicant-caused delay has been resolved, the asylum clock cannot start running until the next scheduled hearing date. Due to congested court dockets, hearing dates may be months or even years apart.
• It restates they will not start or restart the asylum clock when, after an appeal, a case is sent back to the immigration judge to revisit the asylum claim. This wrongly prevents asylum applicants from seeking work authorization after a lengthy appeal process and after an initial decision denying asylum has been vacated.
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