New Memo Thwarts Common Immigration Judge Ploy To Stop The Asylum Clock.
After changes in immigration law in 1995, when an alien applies for asylum, he or she can only obtain a document from USCIS authorizing him or her to work if his or her asylum case is pending more than 180 days. The immigration court maintains an “asylum clock” to calculate how long a case has been pending. Like everything else in the law, the issue becomes the definition of the words, in this case, “pending,” and like everything else in the law, it gets complicated. The rules of the asylum clock were shrouded in mystery. The rules were designed to prevent an asylum applicant from delaying his or her case so it would be pending more than 180 days. People seeking asylum need to feed themselves and without receiving permission to work, it is a very difficult thing to do. Should the clock stop in a case before 180 days has passed, an asylum applicant may have to wait years for the resolution of his or her case without having the right to work. Thus, making sure the clock does not stop is a matter of great importance.
For reasons I do not know, many immigration judges, at least in San Diego, where I practice, delight in stopping the asylum clock. Because the procedures for stopping and starting the clock were veiled in secrecy, clients’ clocks have been stopped with little or know understanding by attorneys of why. Rules about re-starting the clock were also hidden, leaving attorneys with little ability to help their clients with clock issues. One seasoned practitioner once told me that she does not even bother with clock issues because the immigration judges are going to stop it one way or the other.
Fortunately for those who favor transparency, on November 15, 2011, the Office of Chief Immigration Judge released a memo available to the public revealing the rules of the clock for the benefit of immigration judges, asylum applicants, and attorneys. It is a memo of such importance that I predict it will be dubbed the”O’Leary Memo,” after its author, Chief Immigration Judge Brian M. O’Leary.
The memo explains many interesting things heretofore shrouded in mystery, such as various circumstances under which the asylum clock is stopped and how and when it can be re-started. The most interesting detail in the O’Leary Memo is that it suggests that the immigration judges’ most used ploy to stop the clock is now disallowed. Here is how immigration judges did it. The asylum clock starts to run when an asylum application is filed with the USCIS Asylum Office or when an asylum application is filed in immigration court. In either case, an applicant appears in immigration court for a scheduling hearing. At this hearing, the immigration judge nonchalantly and without any warning of the consequences, asks if the alien would like an opportunity to supplement the asylum application. Ordinarily, no sensible person would waive the opportunity to supplement the record. If additional proof of an asylum claim is obtained, of course the applicant would want to submit it. However, by indicating a willingness to supplement the record, the immigration judge considered this a delay in the proceedings caused by the alien and stopped the asylum clock. The result of the mere expression of willingness to reserve the right to supplement the record is rendering the applicant ineligible to ever receive a permit to work.
The O’Leary memo indicates that this gambit is improper. It states at Page 13 of the O’Leary Memo:
If the applicant accepts the initial hearing date offered and will be able to timely file any supplements to the application before the hearing, the clock should run until that hearing. Code 21 (Supplement Asylum Application), which stops the clock, is the appropriate adjournment code only if the applicant requests a delay to supplement the application.
According to immigration court rules as found in the Immigration Court Practice Manual, ”filings (in non-detained cases) must be submitted at least fifteen (15) days in advance of the (individual) hearing.” Rule 3.1(b)(ii)(A). Thus, an asylum applicant can file supplemental material up until fifteen days before hearing and the clock remains running.
Immigration judges determined to stop the clock may try to set a deadline sooner than 15 days before the hearing to make timely filing impossible, but this would be counter to the spirit of the O’Leary Memo and explicit discussion in the Immigration Court Practice Manual that amendments to an asylum application can be filed as late as 15 days before the hearing. Rule 3.1(b)(iii)(B). Thus, the O’Leary Memo allows an alien to preserve the right to supplement the record and not stop the clock. This is an important positive change in the law and good news for asylum applicants who will either get a speedy hearing or the right to support themselves while waiting for their hearing without waiving their right to present evidence in support of their asylum claim. Judge O’Leary did a great thing.Posted November 26, 2011.
Jonathan D. Montag is a State Bar of California certified Immigration and Nationality Law Specialist. He is a former chairman of the State of California Immigration and Nationality Law Advisory Commission of the Board of Legal Specialization. He was an AILA San Diego Chapter Chair. Mr. Montag has successfully argued cases before the District Court for the Southern District of California and the Ninth Circuit Court of Appeals and testified as an expert in the District Court for the Southern District of California and the California State Bar Court. Mr. Montag was named a 2005 Attorney of the Year by California Lawyer Magazine and has been named to the San Diego Super Lawyers list for immigration in 2007-2011.
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