PRACTICE ADVISORY 1 December 2015

Transcription

1 PRACTICE ADVISORY 1 December 2015 PRESERVING THE ONE-YEAR FILING DEADLINE FOR ASYLUM CASES STUCK IN THE IMMIGRATION COURT BACKLOG By Sandra A. Grossman and Lindsay M. Harris 2 The immigration courts unprecedented backlogs are creating procedural and substantive challenges for attorneys trying to comply with the One-Year Filing Deadline (OYFD) in asylum cases. 3 These difficulties are most prevalent in scenarios where an asylum applicant is running up against the OYFD and Immigration and Customs Enforcement (ICE) has issued a charging document, but not yet filed it with the immigration court. Similar complications arise where a master calendar hearing is scheduled beyond the oneyear filing deadline. As practitioners know, failure to meet the OYFD can have severe and lasting repercussions for applicants and their families. What steps should a practitioner take to comply with the OYFD under these circumstances? How can a practitioner best create a record for appeal if an immigration judge denies asylum for failure to meet the OYFD due to circumstances beyond the respondent s control? This Practice Advisory answers these questions and discusses strategies and procedures for complying with the OYFD. What is the one-year filing deadline? In order to establish eligibility for asylum under the Immigration and Nationality Act (INA), the applicant must prove by clear and convincing evidence that the asylum application was filed within one year of the date of his or her last arrival in the United States unless one of two statutory exceptions, discussed below, applies. 4 Asylum applications may be filed either affirmatively with U.S. Citizenship and Immigration Services (USCIS) or, if the applicant is in removal proceedings, defensively 1 Copyright Click here for information on reprinting this Practice Advisory. This advisory does not substitute for individual legal advice supplied by a lawyer familiar with a client s case. 2 Sandra Grossman is the Founder and Managing Partner of Grossman Law, LLC in Bethesda, Maryland. Lindsay M. Harris is a Legal Fellow with the American Immigration Council. The authors wish to acknowledge the assistance of Dree Collopy, Melissa Crow, Lisa Green, Laura Lynch, Jennifer Rotman, and Kate Voigt who provided helpful comments and editing. 3 The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996 created the requirement that an asylum applicant must file their asylum application within one year of their last entry into the United States. 8 C.F.R (a)(2)(A). 4 See 8 C.F.R (a)(2)(i)(A).

2 with Executive Office of Immigration Review (EOIR). Affirmative filings are mailed to a USCIS Service Center. Applicants should then receive a USCIS receipt notice as well as a notice from an Application Support Center (ASC) instructing them to appear for an appointment for the collection of biometric information. Applicants should retain their ASC biometrics confirmation as proof that biometrics were taken. 5 Due to unprecedented backlogs in the processing of affirmative asylum claims, according to current processing times, USCIS may take up to four years to schedule an interview in an affirmative asylum case. 6 In defensive filings, asylum applications must be filed in open court at a master calendar hearing. 7 Attorneys also must comply with pre-filing instructions by sending the first three pages of the Form I-589, their Form G-28 Notice of Entry of Appearance, and a copy of DHS s pre-filing instructions to the USCIS Nebraska Service Center (NSC). Applicants will then receive a USCIS receipt notice as well as an ASC notice instructing them to appear for an appointment for collection of biometric information. Applicants should retain their ASC biometrics confirmation as proof that biometrics were taken, and should be ready to provide the proof at their removal hearings. Immigration judges may not grant asylum without valid, unexpired biometrics and a complete background check performed by the Department of Homeland Security (DHS). The clear and convincing evidence standard for showing compliance with the OYFD applies to both affirmative and defensive asylum filings. 8 Clear and convincing evidence falls somewhere between the preponderance of the evidence standard (51% or more) and the beyond a reasonable doubt standard. 9 Some ways to establish clear and convincing evidence that an application has been filed within the OYFD include: a certified mail receipt where the mailing date will be considered the filing date, 10 credible testimony, or documentary evidence that establishes when the applicant entered the 5 Due to extensive backlogs in processing asylum claims, biometrics are only valid for fifteen months. See DHS Procedures for Implementation of EOIR Background Check Regulations for Aliens Seeking Relief or Protection from Removal (August 22, 2011), available at AL.pdf (last visited Nov. 10, 2015). Following the expiration of biometrics, the applicant must request a second ASC appointment notice. In some jurisdictions, attorneys must proactively call ICE to request new ASC notices on their clients behalf. In other jurisdictions, respondents may simply appear at the local ASC with an immigration court hearing notice and will be allowed to have biometrics retaken. Practices to maintain current biometrics vary by jurisdiction. 6 See USCIS Affirmative Asylum Scheduling Bulletin, available at (last visited Nov. 10, 2015). 7 EOIR Practice Manual, Chapt See 8 C.F.R (a)(2)(i)(A). To satisfy the standard, an applicant must provide enough proof to produce in the mind of the court a firm belief or conviction that the claim was timely filed. See Matter of Carrubbam, 11 I&N Dec. 914, 917 (BIA 1966). 9 Asylum Officer Basic Training: One Year Filing Deadline, 6 (March 23, 2009), available at TC%20Lesson%20Plans/One-Year-Filing-Deadline-31aug10.pdf (last visited Nov. 10, 2015). 10 See 8 C.F.R (a)(2)(ii). 2

3 United States. 11 Attorneys should gather all available documentary and testimonial evidence to demonstrate compliance with the OYFD. What are the exceptions to the OYFD? The one-year filing deadline is subject to two statutory exceptions. An applicant may apply for asylum more than one year after entry by demonstrating either the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application. 12 An applicant demonstrating changed circumstances must also demonstrate that the application was filed within a reasonable period given those changed circumstances. 13 Similarly, an applicant demonstrating extraordinary circumstances must show that the application was filed within a reasonable period given those circumstances. 14 Depending on the procedural posture of the claim and whether it is a defensive or affirmative filing, the asylum officer, the immigration judge (IJ), or the Board of Immigration Appeals (Board or BIA) will determine whether the applicant qualifies for an exception to the OYFD. 15 Changed circumstances must have a material effect on an applicant s eligibility for asylum. They include but are not limited to: changes in the applicant s country of nationality or country of last habitual residence (for stateless individuals), changes in U.S. law, changes in activities in which an applicant has become involved outside his country of nationality, and the loss of a child-parent or spousal relationship to a principal asylum applicant via marriage, divorce, death, or attaining the age of Extraordinary circumstances are defined as events or factors directly related to the failure to meet the one-year deadline and are especially relevant in the context of the immigration court backlogs. 17 Extraordinary circumstances may include but are not limited to: serious illness or mental or physical disability; legal disability (such as being an unaccompanied minor); ineffective assistance of counsel; maintaining Temporary Protected Status or other lawful immigrant or nonimmigrant status until a reasonable period of time before filing the asylum application; having timely filed an application that has been rejected for the applicant to make corrections; or the death or serious illness of an applicant s legal representative or immediate family member. 18 Because problems 11 See Asylum Officer Basic Training Participant Workbook, pt. IV (March 23, 2009), available at TC%20Lesson%20Plans/One-Year-Filing-Deadline-31aug10.pdf (last visited Nov. 10, 2015) U.S.C. 1158(a)(2)(D) C.F.R (a)(4)(ii) C.F.R (a)(5). 15 See 8 C.F.R (a)(2)(ii). 16 See 8 C.F.R (a)(4)(i) C.F.R (a)(5). 18 Id. 3

4 stemming from backlogs before the immigration courts are beyond the applicant s control, they should similarly constitute an extraordinary circumstance that excuses the OYFD. The USCIS Asylum Office s Lesson Plan on the OYFD explains that other types of circumstances might also justify an extension if the applicant can show that they were extraordinary and directly related to the failure to timely file. 19 These circumstances include: severe family or spousal opposition, extreme isolation within a refugee community, profound language barriers, or profound difficulties in cultural acclimatization. 20 Any such factor or combination of factors must have compromised the applicant s functioning severely enough to have generated a significant barrier to timely filing. 21 Attorneys should carefully review their client s cases to determine if any such factors, other than the EOIR backlog, played an outcome-determinative role in the failure to timely file. Applicants bear the burden of convincing the IJ or asylum officer that the failure to timely file was not their fault. 22 The BIA has set forth a three-part test to determine whether an applicant s failure to file within the OYFD was due to an extraordinary circumstance. 23 First, the applicant must establish that an extraordinary circumstance actually exists. Second, the applicant must demonstrate how those circumstances directly relate to his or her failure to timely file the application. Third and finally, the applicant must prove that the delayed filing was reasonable under the circumstances. 24 These criteria should be easily satisfied where failure to comply with the OYFD is due to immigration court backlogs, as long as the asylum application has been submitted in a timely manner and the applicant (or the applicant s attorney) presents evidence of other good faith efforts to file. Timing plays an important role in arguing exceptions to the OYFD. Both extraordinary and changed circumstances may excuse an applicant from meeting the OYFD only if the asylum application is filed within a reasonable period of time. 25 However, unlike changed circumstances, extraordinary circumstances must occur during the OYFD period, as they must directly relate to the applicant s failure to timely file. 26 The BIA examines reasonable time disputes on a case-by-case basis but has found that waiting six months or longer after expiration or termination of status would not be considered 19 Asylum Officer Basic Training: One Year Filing Deadline 13, (March 23, 2009), available at C%20Lesson%20Plans/One-Year-Filing-Deadline-31aug10.pdf (last visited Nov. 10, 2015). 20 Id. at Id. at Id. 23 Matter of Y-C-, 23 I&N Dec. 286 (BIA 2002). 24 Id. at C.F.R (a)(5) 26 See e.g., Dree K. Collopy, AILA s Asylum Primer: A Practical Guide to U.S. Asylum Law and Procedure (7th ed. 2015), pp

5 reasonable. 27 Attorneys should review the specific facts of their clients cases to determine whether, taking into account the totality of the circumstances, a bona fide argument exists for timely filing. 28 What is the difference between lodging an asylum application and filing it in court? Asylum applicants are eligible to receive employment authorization documents (EAD) from USCIS 180 days after their asylum applications are filed in both affirmative and defensive cases. The 180-day waiting period is calculated according to the asylum EAD clock, which tracks the number of days since an asylum application has been filed. To facilitate USCIS s adjudication of EAD applications, EOIR provides USCIS with access to the clock for cases pending before the immigration courts. 29 USCIS will consider an application filed only when it has been submitted in open court. However, the asylum EAD clock starts after an application has been lodged with the immigration court. An application is lodged for purposes of determining eligibility for employment authorization, when an applicant or attorney submits an asylum application to the court clerk either in person or by mail. 30 Pursuant to the ABT Settlement Agreement, 31 EOIR accepts defensive filings at the immigration court window and stamps these applications lodged not filed. 32 EOIR then transmits the lodged not filed date to USCIS. 33 For detailed guidance on lodging an asylum application for employment authorization purposes, see Employment Authorization and Asylum: Strategies to Avoid Stopping the Asylum EAD Clock, American Immigration Council Practice Advisory (last updated February 5, 2014). 27 Matter of T-M-H- & S-W-C-, 25 I&N Dec. 193, 193 (BIA 2010) (noting [s]horter periods of time would be considered on a case-by-case basis, with the decision-maker taking into account the totality of the circumstances ); but see Taslimi v. Holder, 590 F.3d 981 (9th Cir. 2010) (finding that asylum application filed nearly seven months after circumstances changed to be within a reasonable time). 28 Alternatively, some practitioners have also argued that the regulations providing applicants with a reasonable time to file after the changed circumstances occur are ultra vires. The statute only requires that that the application has been filed within 1 year after the date of the alien s arrival in the United States. See INA 208(a)(2)(B) The Act then allows for the changed and extraordinary circumstances exception. See INA 208(a)(2)(D). Nowhere does the statute provide temporal limits on filing once an exception is met. 29 See EOIR Practice Manual, Chapt. 4(l), citing INA 208(d)(2), 208(d)(5)(A)(iii); 8 CFR See EOIR Practice Manual, Chapt. 4(i). 31 As part of a settlement of a nationwide class action lawsuit, B.H., et al. v. USCIS, et al., No. CV RAJ (W.D. Wash.), EOIR and USCIS established certain procedures that affect the eligibility of some asylum applicants for employment authorization. The settlement agreement and other documents pertaining to and interpreting the agreement can be found here: 32 See EOIR Practice Manual, Chapt. 4(i). 33 Id. 5

6 For purposes of the OYFD, a lodged asylum application is not considered filed. 34 The asylum application must still be filed with an immigration judge at a master calendar hearing. 35 Nevertheless, as explained below, lodging is one of several actions attorneys may utilize in seeking to comply with the OYFD. How can I preserve the OYFD where the immigration court does not schedule my client s master calendar hearing or schedules it beyond the OYFD? Many practitioners face the scenario where a client has been served with a Notice to Appear (NTA) but the NTA has not been filed with the immigration court. Alternatively, even if is the NTA has been filed, an initial master calendar hearing may not be scheduled until after the OYFD has passed. In these situations, clients are best served by a multi-pronged strategy demonstrating that their failure to meet the OYFD is due to circumstances beyond their control. This strategy may include some or all of the steps discussed below. Filing the I-589 Application for Asylum with USCIS In cases where an NTA has been served on a client but not filed with the immigration court, attorneys should file the asylum application with the relevant USCIS Service Center. At a recent USCIS Asylum Division Quarterly Stakeholder Meeting, John Lafferty, Chief of the Asylum Division, indicated that asylum applications (Form I-589) sent to USCIS Service Centers will be rejected only if internal databases show that the NTA has been filed with the immigration court, thereby establishing jurisdiction with EOIR. 36 Thus, the Service Center will accept the application if an NTA has not yet been filed with the court. If accepted, the application will be forwarded, along with the applicant s A-file, to the relevant USCIS Asylum Office, which will then determine whether to adjudicate the case. Filing before USCIS may also constitute evidence of good faith efforts to meet the OYFD. In some jurisdictions, submission of an application to USCIS may not excuse a late filing. In the Houston immigration court, for example, an IJ found that the extraordinary circumstances exception did not apply where the respondent had timely filed his application and biometrics request with USCIS, but the first available master calendar hearing date fell beyond the OYFD. The IJ found that counsel s failure to file a Motion to Advance the Hearing date precluded a finding of extraordinary circumstances. As of November 2015, the case was pending before the Fifth Circuit Court of Appeals. 34 Id. Please note that some judges and immigration court jurisdictions do accept lodged applications as filed for the purposes of the OYFD. Please see footnote 38 below describing local practices across the nation. 35 U.S. Department of Justice, EOIR, Memorandum from Chief Immigration Judge O Leary, Operating Policies and Procedures Memorandum 13-03: Guidelines for the Implementation of the ABT Settlement Agreement, Dec. 2, 2013; see also, EOIR Practice Manual, Chapter 3.1(b)(III)(A). 36 USCIS Asylum Division, Quarterly Stakeholder Meeting Agenda and Unofficial Notes, August 7, 2015, AILA Doc. No , available at (last visited Nov. 23, 2015). 6

7 Decisions such as these are prime example of the need for attorneys to follow a multipronged approach, combining many efforts, to preserve the OYFD. Lodging an asylum application with EOIR In cases where the NTA has been filed with the immigration court but the master calendar hearing is scheduled beyond the OYFD, the lodging procedure described above may constitute additional evidence of good faith efforts to meet the filing requirements. Indeed, the EOIR guidelines under the ABT Settlement Agreement specifically permit judges to consider the legal effect of lodging an asylum application when considering whether an exception to the one-year bar applies. 37 Policies and practices regarding whether lodging is in fact accepted as filing vary widely nationwide. 38 If pursuing a lodging strategy, practitioners should comply with the requirements for lodging set forth in the EOIR Practice Manual. 39 Additionally, given the firm deadlines involved, there is little room for error. EOIR rejects defective filings where for example, the I-589 is not signed by the applicant, the I-589 is not filed at the correct court location, or where the case is not pending before EOIR, among numerous other reasons. 40 Similarly, an application that is submitted by mail or courier for lodging purposes may be rejected if it is not accompanied by a self-addressed, stamped, envelope; does not include a cover page; or does not include a prominent annotation on the top of the front page stating that is being submitted for the purpose of lodging. 41 Filing a Motion to Advance the Hearing Date In cases where an NTA has been filed with the immigration court but the master calendar hearing is scheduled beyond the OYFD, attorneys should also consider filing a Motion to 37 U.S. Department of Justice, EOIR, Memorandum from Chief Immigration Judge O Leary, Operating Policies and Procedures Memorandum 13-03: Guidelines for the Implementation of the ABT Settlement Agreement, Dec. 2, 2013 at AILA asylum liaison contacts across the country shared the lodging and filing practices at their local courts with the authors of this Practice Advisory. This informal polling yielded the following information which is provided for informational purposes only, is subject to change, and should not be relied upon as established practice in any matter or proceeding before EOIR: Judges at the immigration court in Arlington, VA have agreed (and communicated their agreement to local attorneys through pro bono liaison meetings with the court) that lodging constitutes filing for the purpose of meeting the OYFD and routinely permit an exception to the deadline where an applicant has lodged the I-589 within one year of his or her last entry into the United States. Judges in some courts, including Omaha, NE, Los Angeles, CA, New Orleans, LA, and Seattle, WA, accept lodging as filing but have not made any formal policy announcement to that effect. In other courts, including Denver, CO, Judges do not consider lodging as filing for the purposes of the OYFD. In Houston, TX court personnel informed practitioners that each immigration judge has discretion to determine whether lodging constitutes filing and that there is no official guidance. In Portland, OR, practitioners similarly report that there is no official rule regarding lodging as filing, but that Judges seem to often accept the lodged date as filed for the purposes of the OYFD. 39 See EOIR Practice Manual Chapter 4(i)(A). 40 Id. 41 Id. 7

8 Advance the Master Calendar Hearing Date. Such a motion may constitute further evidence of good faith efforts to meet the OYFD and will preserve a record for appeal should an IJ find there are no extraordinary circumstances. A Motion to Advance should completely articulate the reasons for advancing the hearing date, the negative consequences of not doing so, and the relief or remedy sought. 42 Attorneys should explicitly state that the purpose of the motion is to enable the respondent to meet the OYFD. Motions should be accompanied by the respondent s written pleadings, a copy of the asylum application (as well as any additional copies for family members included in the application), and supporting documentation. The motion must be filed with a cover page labeled MOTION TO ADVANCE and include a proposed order for the IJ to sign. 43 While not required by the regulations or the EOIR Practice Manual, a Motion to Advance may help preserve arguments for appeal should an IJ refuse to accept an asylum application due to issues relating to the OYFD. After filing a Motion to Advance the Hearing Date, an attorney should be ready to proceed if the motion is granted. Attorneys should prepare the asylum application and supporting documents for submission to the immigration court, along with evidence of their attempts to timely file. Such evidence may include a copy of the cover page with the lodged not filed stamp, the USCIS receipt and ASC notices, and a copy of the Motion to Advance. Arguing that a Request for a Credible Fear Interview is an Application for Asylum In a situation where a client has undergone or requested a credible fear interview, and then failed to file within one year of entry into the United States, the following argument may be made. Paragraph (1) of INA 208 provides that an application for asylum can be made in accordance with this section or, where applicable, section 235(b) of this title. 44 The OYFD rule provides, of course, that subject to certain exceptions described in the statute, paragraph 208(1) shall not apply unless the application for asylum is made within one year of the applicant s entry into the United States. 45 INA 235(b), in turn, provides that when an inadmissible alien seeking admission indicates either an intention to apply for asylum under INA 208 of this title or a fear of persecution, the officer shall refer the alien for an interview by an asylum officer under subparagraph (B). 46 INA 235(b) provides the process for consideration and review of the credible fear interview for applicants for admission. No particular form is required. Once an applicant states that he or she is afraid to return, the applicant is deemed an applicant for asylum. The argument should be made that under the plain language of the 42 See EOIR Practice Manual Chapter 5.10(b). 43 See Id. at Chapter 5.2(b). 44 INA 208(a)(1) (emphasis added). 45 INA 208(a)(2)(B). 46 INA 235(b)(1)(A)(ii). 8

9 statute, a request for a credible fear interview under INA Section 235(b), made within one year of entry, constitutes an application for asylum. As such, practitioners should argue that any individual who has undergone or even simply requested a credible fear interview, is not subject to a bar to asylum raised by the OYFD. Again, practitioners and their clients are best served by a multi-faceted approach that, when applicable, incorporates this argument, as well as the other strategies cited herein. Under what circumstances should I appeal a denial of an asylum application based on failure to meet the OYFD? If an IJ denies asylum based on a failure to meet the OYFD, attorneys should consider appealing the decision to the Board and, if necessary, to the relevant court of appeals. The REAL ID Act limits judicial review of legal claims, with the exception of constitutional claims or questions of law. 47 Courts have generally considered questions of timeliness and changed or extraordinary circumstances to be questions of fact, and therefore unreviewable. 48 Nevertheless, attorneys may argue that an IJ s refusal to accept an asylum application is not a pure question of fact, but also an error of law that deprives an asylum applicant of his statutory and due process right to seek asylum. 49 The Ninth Circuit has found jurisdiction to review the Board s extraordinary and changed circumstances determinations. In Husyev v. Mukasey, for example, the Ninth Circuit concluded that EOIR had established a meaningful standard by which it could review the BIA's extraordinary circumstances determinations, including review of the 47 See 8 U.S.C. 1252(a) ( [n]othing... in any... provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section. ). 48 See e.g., Diallo v. Gonzales, 447 F.3d 1274, (10th Cir. 2006); Sukwanputra v. Gonzales, 434 F.3d 627, (3d Cir. 2006); Chen v. Gonzales, 434 F.3d 144, 154 (2nd Cir. 2006); Mehilli v. Gonzales, 433 F.3d 86, (1st Cir. 2005); Vasile v. Gonzales, 417 F.3d 766, (7th Cir. 2005); see also Chacon-Botero v. U.S. Attorney Gen., 427 F.3d 954, 957 (11th Cir. 2005) (holding that the REAL ID Act did not confer jurisdiction to review an IJ s untimeliness ruling); Bosung v. Gonzales, No , 2006 WL , at *1 (4th Cir. 2006) (unpublished opinion) (per curiam) (same). 49 See e.g., Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006) (modifying a previous holding to bar review of asylum applications denied for untimeliness only when the appeal seeks review of discretionary or factual questions, but not when the appeal seeks review of constitutional claims or matters of statutory construction. ); Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir. 2007) (holding that jurisdiction over questions of law as defined in the Real ID Act includes not only pure issues of statutory interpretation, but also application of law to undisputed facts, sometimes referred to as mixed questions of law and fact. ); Nakimbugwe v. Gonzales, 475 F.3d 281, 284 (5th Cir. 2007) ( finding that the IJ's determination was based entirely on his construction of a federal regulation, which is a question of law over which we now have jurisdiction. ); Lumataw v. Holder, 582 F.3d 78 (1st Cir. 2009) (holding that the question of whether the IJ and BIA applied the correct filing deadline in assessing the timeliness of his asylum application, constitutes a question of law underlying the agency's timeliness determinations. ); Mabasa v. Gonzales, 455 F.3d 740, 744 (7th Cir. 2006) (finding jurisdiction over Petitioners claims under the REAL ID Act on the basis that they were not afforded a meaningful opportunity to be heard since the BIA wrongly analyzed their claim as one of extraordinary circumstances ); see also Dree K. Collopy, AILA s Asylum Primer: A Practical Guide to U.S. Asylum Law and Procedure Ch. 12 (7th ed. 2015). 9

10 reasonable period prong in particular. 50 In Taslimi v. Holder, the court applied similar reasoning to find it had jurisdiction to review whether the respondent had filed her asylum application within a reasonable period of time given the changed circumstances presented by her religious conversion. 51 These cases suggest an argument that, given existing backlogs in the immigration courts, an IJ s refusal to accept an asylum application under one of the exceptions to the OYFD constitutes an error of law that is subject to judicial review. What other arguments can I make to appeal a denial of an asylum application based on failure to meet the OYFD? Attorneys may also argue that denials of asylum applications for failure to meet the OYFD for purely technical reasons are too stringent and beyond the scope of Congressional intent. The exceptions to the OYFD were intended to be flexible and broad. 52 At the time of enactment, Congress paramount objective was to prevent fraudulent claims. 53 Wide concern existed that undocumented immigrants were abusing the asylum process in order to obtain permission to work and access other societal benefits. 54 Nevertheless, even with these concerns, Congress sought to ensure that the U.S. remain a safe haven for legitimate asylum seekers fleeing persecution in their home countries. 55 Recognizing this overriding goal, Senator Orrin Hatch, a proponent for the one-year bar, stated that he too was committed to ensuring that those with legitimate claims for asylum are not returned to persecution, particularly for technical deficiencies. 56 Where asylum applicants have made good faith efforts to file asylum applications within a reasonable period of time, for example, by lodging, by filing a motion to advance the hearing date, filing an application with USCIS where possible, and other such strategies, it would be contrary to Congressional intent to reject such claims for failure to file within the OYFD. Strict application of the OYFD in this manner is rigid, does not prevent fraud, and denies protection to legitimate asylum seekers. The American Immigration Council and AILA are interested in tracking and potentially intervening as amicus in cases where immigration judges or the Board of Immigration Appeals have declined to find an exception to the OYFD even though a respondent s F.3d 1172, 1181 (9th Cir. 2008) F.3d 981, 985 (9th Cir. 2010). 52 See Vahora v. Holder, 641 F.3d 1038, 1045 (9th Cir. 2011); see also, Karen Musalo and Marcelle Rice, The Implementation of the One-Year Bar to Asylum, 31 Hastings Int l & Comp. L. Rev. 693, 696 (2008) [Hereinafter Musalo, Implementation of the One-Year Bar to Asylum. ] 53 Vahora, 641 F.3d at Musalo, Implementation of the One-Year Bar to Asylum at Vahora, 641 F.3d at See 142 Cong. Rec. S (daily ed. Sept. 30, 1996) (statement of Sen. Orrin Hatch) cited in Vahora, 641 F.3d at

11 master calendar hearing was scheduled beyond the deadline. Please submit your case via our online form. 57 Conclusion The immigration court backlogs present serious challenges for asylum seekers. By pursuing the type of multi-pronged, proactive strategy described above, attorneys can assist their clients in complying with the OYFD and thereby safeguard their ability to apply for asylum Call for Examples: Denial of Asylum Based on Master Calendar Hearing Scheduled After One-Year Filing Deadline, August 4, 2015, AILA Doc. No , available at 58 For additional practice pointers regarding the OYFD, see e.g., Dree K. Collopy, AILA s Asylum Primer: A Practical Guide to U.S. Asylum Law and Procedure (7th ed. 2015), pp

12 U.S. Department of Justice Executive Office for Immigration Review Office of the Chief Immigration Judge Chief Immigation Judge 5107 Leesburg Pike. Suite 2500 Falls Church. Virginia MEMORANDUM December 2, 2013 TO: FROM: All Immigration Judges All Court Administrators All Attorney Advisors and Judicial Law Clerks All Immigration Court Staff Brian M. O'Leary Chief Immigration Judge rti SUBJECT: Operating Policies and Procedures Memorandum 13-03: Guidelines for Implementation of the ABT Settlement Agreement I. II. III. Introduction The ABT Settlement Table of Contends Lodging Asylum Applications 2 A. Meaning of the Term "Lodged" 3 B. "Lodged not Filed" Process 3 1. Defensive Asylum Applications Only 3 2. Court Staff Responsibilities 3 a. General Process 3 b. Applications Lodged by Mail or Courier 4 c. Transmission of "Lodged not Filed" Date to USCIS 5 3. Filing the Defensive Asylum Application 5 C. Addressing ABT Implementation Issues 5 IV. The Immigration Judges' Responsibilities 6 A. Reasons for Adjournments 6 B. Offering Future Hearing Dates 6 C. Providing the 180-Day Asylum EAD Clock Notice 6 D. Consideration of an Exception to the One-Year Bar 6 V. Cases on Appeal or Remand 6 VI. Conclusion 7 Attachments: A. ABT Settlement Agreement B. 180-Day Asylum EAD Clock Notice 2 2

13 OPPM 13-03: Guidelines for Implementation of the ABT Settlement Agreement Page 2 C. Rejected Lodging Notice I. Introduction As part of a settlement of the nationwide class-action lawsuit B.H., et al. v. U.S. Citizenship and Immigration Services, et al., No. CV RAJ (W.D. Wash.) (referred to as the ABT Settlement Agreement ), the Executive Office for Immigration Review ( EOIR ) and the U.S. Citizenship and Immigration Services ( USCIS ) agreed to change certain procedures that will affect the eligibility of some asylum applicants for employment authorization documents ( EAD ). This Operating Policies and Procedures Memorandum ( OPPM ) provides guidance on the implementation of the terms of the ABT Settlement Agreement, a copy of which is provided as Attachment A. II. The ABT Settlement The ABT Settlement Agreement resulted from a class action complaint challenging the Federal Government s practices with respect to EADs for applicants for asylum. The suit was filed in the U.S. District Court for the Western District of Washington in The plaintiff class consisted of all noncitizens in the United States who have been placed in removal proceedings, have filed a complete Form I-589, Application for Asylum and Withholding of Removal, andhave filed or will file a Form I-765, Application for Employment Authorization,pursuantto8C.F.R. 274a.12(c)(8). EOIR is required to implement certain interim provisions of the agreement on December 3, These interim provisions include: (1) making the 180-Day Asylum EAD Clock Notice (a copy of which is provided as Attachment B) available at hearings; (2) providing the 180-Day Asylum EAD Clock Notice to an asylum applicant when the applicant lodges or files an asylum application; (3) stamping defensive asylum applications as lodged not filed at the immigration court filing window and entering the lodged date into CASE, to be transmitted to USCIS; and (4) making certain amendments to OPPM 11-02: The Asylum Clock. These changes have been made and the OPPM has been reissued as OPPM 13-02: The Asylum Clock. III. Lodging Asylum Applications Pursuant to the ABT Settlement Agreement, EOIR will accept defensive asylum applications at the immigration court filing window as lodged not filed and will transmit the lodged not filed date to USCIS.

14 OPPM 13-03: Guidelines for Implementation of the ABT Settlement Agreement Page 3 A. Meaning of the Term Lodged If a defensive asylum application is submitted outside of a hearing for the purpose of lodging the application, the asylum application will be stamped lodged not filed and returned to the applicant, following the process laid out below. The lodged date is not the filing date and a lodged asylum application is not considered filed. The requirement that an asylum application be filed before an Immigration Judge at a master calendar hearing will not change. See OPPM 13-02: The Asylum Clock; Revised OPPM 00-01: Asylum Request Processing. A respondent who lodges an asylum application at an immigration court filing window must still file the application before an Immigration Judge at a master calendar hearing. However, USCIS will consider the date on which an asylum application is lodged not filed for the purpose of calculating the time period for EAD eligibility. B. Lodged not Filed Process 1. Defensive Asylum Applications Only An asylum application that is first filed before an Immigration Judge at a master calendar hearing is known as a defensive application. Only a respondent who plans to file a defensive asylum application, but has not yet done so, may lodge an asylum application. An asylum applicant may only lodge an asylum application once. If an asylum application is lodged, it must be lodged before that application is filed before an Immigration Judge at a master calendar hearing. An applicant who already has an asylum application pending with the court may not lodge an asylum application. Accordingly, if a respondent filed an application with USCIS and USCIS referred that application to the court, the respondent may not lodge an asylum application. 2. Court Staff Responsibilities a. General Process If a respondent submits an asylum application at the immigration court filing window for the purpose of lodging the application, court staff should make an initial determination as to whether the application may be lodged. In the following situations, court staff should reject the application: o o o o o o o o o the Form I-589 does not have the applicant s name; the Form I-589 does not have the A-number; the Form I-589 is not signed by the applicant (Part D on page 9 of the Form I-589); the Form I-589 has already been lodged with the court; the Form I-589 has already been filed with the court; the Form I-589 was referred to the court from USCIS; the Form I-589 is being submitted for lodging at the incorrect court location; the case is pending before the Board of Immigration Appeals ( BIA ); or the case is not pending before EOIR. Such an application should not be stamped with the lodged not filed stamp or the court date stamp. Rather, the application should be rejected, and a copy of the 180-Day Asylum EAD Clock Notice need not be provided.

15 OPPM 13-03: Guidelines for Implementation of the ABT Settlement Agreement Page 4 Note that a Proof of Service is not required to lodge an application. Accordingly, staff should not reject an application for lack of a Proof of Service. After determining that the asylum application may be lodged, court staff should stamp the application with the lodged not filed stamp and with the court date stamp. Court staff will then update the field lodged not filed date in CASE. Court staff should not place the lodged application or a copy of it in the Record of Proceeding. The original stamped application should be returned to the respondent along with a copy of the attached 180-Day Asylum EAD Clock Notice. Once a lodged not filed date is entered into CASE, it should not be changed except in unusual circumstances, such as to correct a data entry error. The lodged not filed date should not be changed when the asylum application is filed or when the Immigration Judge issues a decision on the asylum application. In addition, court staff should ensure that the 180-Day Asylum EAD Clock Notice is available in all courtrooms during hearings. b. Applications Lodged by Mail or Courier A respondent may submit an asylum application by mail or courier for the purpose of lodging the application. Court staff should make an initial determination as to whether the application may be lodged. If the application has any of the defects described in subsection (a), above, it should be rejected using the Rejected Lodging Notice, a copy of which is provided as Attachment C. The Rejected Lodging Notice should be processed in the same manner as any other rejection notice. If the application is rejected, a copy of the 180-Day Asylum EAD Clock Notice need not be included with the rejection notice. In addition to the defects described in subsection (a) above, court staff should also reject the application in the following situations: o o The application is not accompanied by a self-addressed stamped envelope or comparable return delivery packaging. In this situation the application should be rejected using the Rejected Lodging Notice, a copy of which is provided as Attachment C. The Rejected Lodging Notice should be processed in the same manner as any other rejection notice. If the application is rejected, a copy of the 180-Day Asylum EAD Clock Notice need not be included with the rejection notice. The asylum application is not accompanied by a cover page or does not include a prominent annotation on the top of the front page of the form stating that it is being submitted for the purpose of lodging. In this situation the application should be rejected using a regular Rejected Filing Notice, not the Rejected Lodging Notice. If the application is rejected, a copy of the 180-Day Asylum EAD Clock Notice need not be included with the rejection notice. If an asylum application submitted by mail or courier meets the requirements for lodging, court staff should process the application as described in subsection (a), above.

16 OPPM 13-03: Guidelines for Implementation of the ABT Settlement Agreement Page 5 c. Transmission of Lodged not Filed Date to USCIS Once a date is entered into the lodged not filed field in CASE, it will be provided to USCIS electronically. No additional action is necessary by court staff. 3. Filing the Defensive Asylum Application As noted above, even if a respondent lodges an asylum application at an immigration court filing window or by mail or courier, the respondent still must file the application before an Immigration Judge at a master calendar hearing in order to apply for asylum. See section III(A) (Meaning of the Term Lodged ), above. Whether or not a respondent lodged an asylum application does not affect the respondent s eligibility to file a defensive asylum application at a master calendar hearing. When a respondent files an asylum application, the judge should make sure the respondent receives a copy of the 180-Day Asylum EAD Clock Notice. See section IV (The Immigration Judges Responsibilities), below. In addition to providing the 180-Day Asylum EAD Clock Notice, the judge and court staff should follow the existing process for reviewing and accepting a complete asylum application as filed. See Revised OPPM 00-01: Asylum Request Processing; OPPM 13-02: The Asylum Clock. C. Addressing ABT Implementation Issues Under the terms of the ABT Settlement Agreement, there is a separate Individual ABT Claim Review process for asylum applicants who believe they have not received the relief described in the Agreement. Applicants will have access to the Individual ABT Claim Review process before EOIR for the following claims only: o o The lodging claim The clerk at the immigration court filing window refused to either 1) stamp a respondent s asylum application lodged not filed, or 2) after properly stamping a respondent s asylum application lodged not filed, return the stamped application to the respondent. The notice claim The respondent did not receive the 180-Day Asylum EAD Clock Notice when he or she lodged or filed a defensive asylum application, or the notice was not made available at all hearings before the Immigration Court. To submit a complaint under the Individual ABT Claim Review process, an asylum applicant must complete an ABT Claim Form and send it to EOIR s Office of General Counsel. Asylum applicants requesting review of an asylum clock issue outside of the Individual ABT Claim Review process should follow the administrative procedures set forth in section VII (Addressing Asylum Clock Requests) of OPPM 13-02: The Asylum Clock. Applicants claiming that USCIS failed to fulfill one of its obligations under the ABT Settlement Agreement should file an ABT Claim Form with USCIS, following the instructions on the form.

17 OPPM 13-03: Guidelines for Implementation of the ABT Settlement Agreement Page 6 IV. The Immigration Judges Responsibilities This section describes the responsibilities of the Immigration Judges. A. Reasons for Adjournments The judge is responsible for deciding the reason for each adjournment. If at a hearing, the judge must make the reason(s) for the case adjournment clear on the record. See OPPM 13-02: The Asylum Clock. B. Offering Future Hearing Dates Judges should follow the guidelines set forth in OPPM 13-02: The Asylum Clock when offering future hearing dates. Generally, when setting a non-detained case from a master calendar hearing to an individual calendar hearing, a minimum of 45 days must be allowed, even if the 180-day adjudications deadline is imminent. Generally, when setting a detained case from a master calendar hearing to an individual calendar hearing, a minimum of 14 days should be allowed. These time periods may be shortened if requested by the applicant. C. Providing the 180-Day Asylum EAD Clock Notice When the applicant files a defensive asylum application in court, the judge must make it clear on the record that the applicant received a copy of the 180-Day Asylum EAD Clock Notice. See section III(B)(3) (Filing the Defensive Asylum Application), above. D. Consideration of an Exception to the One-Year Bar The Immigration Judge adjudicates whether an asylum application was filed within one year after the date of the applicant=s arrival in the United States and, if not, whether an exception to this filing deadline applies. See INA 208(a)(2)(B); 8 C.F.R Legal determinations regarding the effect of lodging an asylum application are within the province of the presiding Immigration Judge. For example, judges may consider the legal effect of lodging an asylum application when considering whether an exception to the one-year bar applies. V. Cases on Appeal or Remand As discussed in OPPM 13-02: The Asylum Clock, EOIR=s asylum adjudications clock permanently stops when the judge issues a decision granting or denying the asylum application, as the decision constitutes final administrative adjudication of the asylum application, not including administrative appeal under section 208(d)(5)(A)(iii) of the Immigration and Nationality Act. Therefore, EOIR s asylum adjudications clock does not run during any appeal of the decision to the BIA, during judicial review before the Federal courts, or if a case has been remanded to the Immigration Court. However, if an applicant is applying for asylum for the first time during a remanded proceeding, then the clock starts and stops as usual. The ABT Settlement Agreement does not require any change in EOIR s procedures relating to cases during any appeal of a decision to the BIA, during judicial review before the

18 OPPM 13-03: Guidelines for Implementation of the ABT Settlement Agreement Page 7 Federal courts, or if a case has been remanded to the Immigration Court. However, immigration court staff should be aware that USCIS s procedures relating to calculation of work authorization eligibility after a remand have changed. Pursuant to the ABT Settlement Agreement, if a decision is appealed to the BIA and the BIA remands it to a judge for adjudication of an asylum claim, USCIS will include the total number of days between the Immigration Judge s initial decision on the asylum application and the date of the BIA s remand order in determining the applicant s eligibility for work authorization. USCIS will also include the total number of days accrued following the remand order, excluding any delays requested or caused by the applicant, in determining the applicant s eligibility for work authorization. Accordingly, if an asylum applicant believes that he or she is eligible for work authorization after his or her case is remanded to the Immigration Court, the applicant should contact USCIS. VI. Conclusion This OPPM provides guidance on the implementation of ABT Settlement Agreement in proceedings before EOIR. If you have any questions, please contact your Assistant Chief Immigration Judge or Mark Pasierb, Chief Clerk, Office of the Chief Immigration Judge.

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23 Office of the Chief Counsel U.S. Department of Homeland Security Immigration and Customs Enforcement New York, NY OFFICE OF THE CHIEF COUNSEL, NEW YORK ELECTRONIC SERVICE FACT SHEET The Office of the Chief Counsel, New York, will begin the use of electronic service (E-Service) effective May 31, Participation is voluntary and is a substitute for in-person service and service through regular mail. Addresses: The following existing box addresses will continue to be operational: For Requests for Prosecutorial Discretion: OPLA-PD-NYC-OCC@ice.dhs.gov For Joint Motions to Reopen (non-detained): NONDETAINED.NYC_JMTR@ice.dhs.gov For Joint Motions to Reopen (detained): DETAINED.NYC_JMTR@ice.dhs.gov Please direct other E-Service filings to the following box addresses: For 26 Federal Plaza Court Cases: OPLA-NYC-eService@ice.dhs.gov For Varick Street Court Cases: OPLA-NYC-VRK-eService@ice.dhs.gov For Ulster/Downstate Court Cases: OPLA-NYC-IHP-eService@ice.dhs.gov Terms and Conditions of Use: 1. E-Service is limited to the following types of documents filed with either the Immigration Judge or the Board of Immigration Appeals: a. Requests for Prosecutorial Discretion b. Motions b. Briefs c. Applications d. Exhibits in Support of Relief Applications e. EOIR and DHS Forms (EOIR-28, EOIR-26, etc.) 2. General inquiries and specific questions should be directed to the duty attorney at: (212) All messages delivered to the E-Service mailbox other than those including documents for service will be deleted without being read. 4. Attachments cannot exceed 10 Megabytes (MB) of data storage. 5. All pages must be clearly scanned. E-Service Fact Sheet (Rev. 7/15/15) Page 1

24 6. Subject lines/document names. a. The subject line must include (in this order): A-number; document type/s; Immigration Judge; and next hearing date (if available). Do not include any other information in the subject line. i. Examples: 1. A ; MTR and G-28; IJ Morace; NHD unassigned 2. A ; EOIR-28; IJ unknown; NHD A , Evidence Packet, IJ Sichel, NHD b. Documents must be named (in this order): A-number, document type. i. Examples: 1. A MTR 2. A EOIR A Evidence 7. Documents must be saved as standard Portable Document Format (PDF) files only, and must be attached to the correspondence. OCC will not access documents through hyperlinks to storage servers, file drop-boxes, cloud servers, or other sources. 8. The body of the must include the following information: a. Alien's A-Number b. The full title of the document being filed c. Attorney's Name, Mailing Address, Telephone Number and address Note: Electronic correspondence containing only attachments and without text in the body of the will not be opened by OCC and will be deemed improperly served. 9. Within 5 business days, an will be sent to the sender if the filing is rejected. Otherwise, the auto-reply will serve as your receipt of filing. 10. By serving documents electronically through this system, the alien and his representative consent to receipt of service of ICE submissions by electronic service in accordance with DHS policies. 11. Acceptance of electronic correspondence in compliance with this agreement constitutes proper service as required under 8 C.F.R and waives objections relating to service requirements under Immigration Court Practice Manual Chapter 3.2(c). 12. By serving documents electronically through this system, the alien and his representatives consent to these Terms and Conditions of Use. 13. Participants in E-Service acknowledge and agree to a limited waiver of data security that shall only attach to the electronic service and transmittal of documents that may contain sensitive personally identifiable information (SPII). Participants in E-Service should be aware however that U.S. Immigration and Customs Enforcement (ICE) cannot ensure that information transmitted outside of the DHS network will remain secure during transmission. Please be E-Service Fact Sheet (Rev. 7/15/15) Page 2

25 advised that this waiver applies to both your receipt of information transmitted by ICE and the transmission of information from you to ICE. Please also be advised that 1) from the time information leaves the DHS network until receipt by your system and 2) during the time that information is being transmitted by your system to the DHS network, the information contained within the , including but not limited to SPII, is not necessarily secure against interception. You are strongly encouraged to encrypt any documents containing SPII prior to sending to OCC via and to send passwords under separate cover. By participating in E-Service you expressly agree to assume the risk that SPII might be intercepted during transmission to or from the DHS network and as a result be obtained by or disclosed to third-parties s that do not comply with the Terms and Conditions of Use may be rejected and ICE may object to the admission of the documents into the record. Violation of the Terms and Conditions of Use or misuse of the E-Service mailbox will result in suspension of E-Service access and rejection of future E-Service filings. E-Service Fact Sheet (Rev. 7/15/15) Page 3

26 Office of the Chief Counsel U.S. Department of Homeland Security Immigration and Customs Enforcement New York, NY Q1: What is E-Service? Frequently Asked Questions E-Service A1: E-Service is the electronic service of documents between the OCCs and the private bar and respondents through a dedicated OCC address. Q2: Does E-Service allow for the electronic filing of documents on the immigration court? A2: No. Although the Executive Office for Immigration Review (EOIR) is working on a plan to allow for electronic filing of documents in the future, currently EOIR accepts only EOIR Form 27 (Notice of Entry of Appearance before the Board) and EOIR Form 28 (Notice of Entry of Appearance before the Immigration Court) electronically. EOIR s Office of the Chief Administrative Hearing Officer (OCAHO), is also conducting a voluntary pilot program to test an electronic filing system in cases filed with OCAHO. Q3: How will the public be made aware of E-Service? A3: Each OCC has created a local OCC E-Service Fact Sheet to be distributed to the local chapter of the American Immigration Lawyers Association (AILA), NGOs, and made available in immigration court. This OCC E-Service Fact Sheet will provide all the details necessary for serving documents electronically on the local OCC. Q4: What types of documents will be accepted through E-Service? A4: OPLA s goal is to accept all documents through E-Service that are filed with the EOIR and served on the OCCs; however, due to varied local resource constraints, each OCC will determine the documents they are able to accept electronically during this initial roll out. Please consult the local OCC E-Service Fact Sheet for a list of documents that will be accepted. Q5: What format should documents be sent? A5: Documents being served must be in either Adobe Acrobat (PDF) or Microsoft Word format, and must be attached to the correspondence. OCCs cannot access documents through hyperlinks to storage servers, file drop-boxes, cloud servers, or other non-attachment sources. Q6: Is E-Service of documents filed with EOIR mandatory? A6: No. E-Service is a voluntary option for those individuals who would like to take advantage of E-Service Fact Sheet (Rev. 7/15/15) Page 4