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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On November 7, 2011, the USCIS published a policy memorandum regarding the priorities that they will follow in placing certain immigrants in removal proceedings through the Notice to Appear).

This newly issued policy memo provides guidance to USCIS officers on how to initially issue the NTA.  The policy memo states that cases involving fraud, serious crimes, categorized as aggravated felonies under the Immigration and Nationality Act, (murder, rape, sexual abuse of minors, possession and/or trafficking in illicit firearms and explosives, crimes of violence, ransom, child porn, human trafficking, drug trafficking, alien smuggling, human rights violators, gang members, and re-entry after a prior deportation), and threats to national security will be the top immigration enforcement priority. Other cases are categorized as “non-egregious public safety” cases. Depending on the circumstances of each case, the policy memo requires the USCIS to follow a complicated referral procedure where USCIS will refer the case to ICE first and let ICE decide whether it is worth their while to pursue. Absent a finding by ICE, USCIS will not issue an NTA in those cases. In other cases, USCIS may automatically refer the cases for an NTA.

Also, under this new policy, USCIS will issue NTAs where required by statute or regulation.  For example, such cases include termination of conditional permanent resident status, denials of form I-751 petitions, denials of form I-829 petitions by entrepreneurs to remove conditions, termination of refugee status, denials of NACARA 202 and HRIFA adjustments, referrals of asylum cases to immigration court, and when an asylum applicant withdraws his/her application.  USCIS will also issue an NTA if a Statement of Findings substantiating fraud is part of the record.

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The Obama Administration and the Department of Homeland Security established a high-level joint DHS and Department of Justice (DOJ) working group to conduct a case-by-case review of approximately 300,000 cases pending before the immigration courts, Board of Immigration Appeals (BIA), and the federal court of appeals. Those cases that are identified as “low priority” will be administratively closed and the respondents will be eligible to apply for work authorization with the United States Citizenship and Immigration Service (“USCIS”). Because of this policy, additional resources can be focused on “high priority “ cases such as those individuals who pose a threat to public safety.

The DHS has stated that its enforcement priorities are national security, public safety, border security, and repeat immigration law violators. As to what constitutes “low priority cases, the DHS has made clear that no category of cases will receive a blanket exercise of favorable discretion, but they have identified certain categories of individuals that may receive particular attention. These include: veterans, long-time permanent residents, minors and the elderly, individuals who have been present since childhood, individuals with serious disabilities or health issues, women who are nursing or pregnant, and victims of domestic violence or other serious crimes. As to negative factors, serious felons, repeat offenders, and individuals with a lengthy criminal record would most likely not be given prosecutorial discretion.

Administrative closure is a procedural convenience used to temporarily remove a case from the immigration court’s docket. The case remains pending, though inactive. Immigration and Customs Enforcement (ICE) attorneys and officers have been asked to consider all cases in light of the DHS enforcement priorities. These requests should be made in writing and should include as much supporting documentation as possible.

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On August 8, 2011, the Board of Immigration Appeals (BIA) held that an Immigration Judge may in appropriate circumstances require the  Department of Homeland Security “DHS” to provide the Temporary Protected Status (“TPS”) application that the applicant filed with the United States Citizenship and Immigration Service (“USCIS”).

The respondent in Matter of Henriquez is a native and citizen of El Salvador. He was not admitted or paroled. He filed for TPS with the CIS and the application got denied. At a hearing before the Immigration Court, Respondent renewed his TPS application. The Immigration Judge asked the DHS to provide Respondent’s administrative records, but the DHS submitted a copy of the denial letter and not the TPS application. The Immigration Judge terminated proceedings due to the DHS’s failure to prosecute.

The issue was whether the DHS is required to provide the IJ with the TPS application. The Board mentioned that they have not addressed the issue of what responsibilities, if any, the applicant or the DHS has concerning the production of the application or other documents with respect to the renewed TPS application. The Board also stated that regulations on TPS renewals do not specify whether the DHS or the applicant bears the responsibility of producing these documents.

The Board found that no language in the applicable TPS regulations could be construed to require the applicant to file a new application before the Immigration Judge rather than rely on the application filed with the USCIS. The Board said that the very term “renew” implies a procedure that contemplates production of the previous application. So they will not impose the burden of filing a new application on the applicant. The Board said that they may be cases where the applicant may not have copies of the TPS application and the supporting documents submitted with the CIS. In such case, the only recourse is to ask for a copy of the application form the DHS.

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On June 23, 2011, the Board of Immigration Appeals (BIA) concluded that the derivative child of a finacee visa holder is not ineligible for adjustment of status simply by virtue of having turned 21 after admission to the United States on a K-2 visa.

In Matter of Le, the respondent came to the U.S. with his mother, who became engaged to a U.S. citizen. The K visa petition was approved for the respondent’s mother and respondent, and they subsequently applied for adjustment of status in the United States.  Respondent was 19 years old when he filed his adjustment application.  Eventually, his mother’s adjustment application was approved, however, respondent’s application was denied since he had already reached the age of 18 at the time of his mother’s marriage.  He was therefore determined to be ineligible to adjust status.

The issue was whether a fiancé derivative child who accompanied or followed to join his alien fiancé parent to the United States remains eligible to adjust status, if after satisfying the other statutory requirements, he attains the age of 18 or 21.  The BIA conclude that to adjust based on a K-2 visa, an alien derivative child must establish that he or she was under 21 years of age at the time of admission to the United States.  In this case, the Respondent was 19 years old at the time of admission to the United States, thus, he was allowed to renew his application for adjustment of status.

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According to 8 C.F.R 1.1, the term arriving alien means “an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry. An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked.”  Under the current regulations, the USCIS can adjudicate an adjustment of status application of a parolee with a final order. Under the amended jurisdictional provisions of the interim regulations, USCIS has been given jurisdiction over the adjustment applications of all arriving aliens regardless of whether they are in removal proceedings, with a limited exception for certain advance parolees not relevant to this practice advisory. Specifically, the amended regulations grant USCIS “jurisdiction to adjudicate an application for adjustment of status filed by any alien, unless the immigration judge has jurisdiction to adjudicate the application under 8 C.F.R. § 1245.2(a)(1).” 8 C.F.R. § 245.2(a)(1). The regulations strip an immigration judge of jurisdiction over the adjustment application of an “arriving alien” in proceedings. 8 C.F.R. § 1245.2(a)(1). Consequently, since the immigration judge does not have jurisdiction over such applications, USCIS does, in accord with this regulation. See also 92 Fed. Reg. at 27587 (explaining that one purpose of the amendments to the regulations is to make clear that USCIS has jurisdiction over the adjustment applications of “arriving aliens” in proceedings).

The main issue in Freire case is whether the BIA abused its discretion in denying Freire’s Motion for Remand or Continuance while he sought adjustment of status before the USCIS.  The Second Circuit held that although IJs and the BIA do not have jurisdiction to adjudicate most arriving aliens’ applications for adjustment of status, it does not prevent IJs or the BIA from adjudicating motions for continuance in removal proceedings over which they already have jurisdiction. Though the Second Circuit finds no reason why the request was not granted, it remanded the case to the BIA to at least provide adequate reasons for their refusal. The Second Circuit vacated the decision, and the case is remanded to the BIA.

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The Adam Walsh Child Protection and Safety Act is a federal statute that was signed into law by President George W. Bush on July 27, 2006 to protect children from sexual exploitation and violent crime and to prevent child abuse and child pornography.  Section 402 of the Adam Walsh Act amends section 204 of the INA to prohibit U.S. citizens and lawful permanent resident aliens who have been convicted of any “specified offense against a minor” from filing a family-based immigration petition on behalf of any beneficiary, unless the Secretary of Homeland Security determines in his sole and unreviewable discretion that the petitioner poses no risk to the beneficiary.  The “specific offense against a minor” includes the following:

• An offense (unless committed by a parent or guardian) involving kidnapping;

• An offense (unless committed by a parent or guardian) involving false imprisonment;

• Solicitation to engage in sexual conduct;

• Use in a sexual performance;

• Solicitation to practice prostitution;

• Video voyeurism as described in section 1801 of Title 18, United States Code;

• Possession, production, or distribution of child pornography;

• Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct; or

• Any conduct that by its nature is a sex offense against a minor.

If a person is subject to the act, he or she must demonstrate to the USCIS that there is no risk to the beneficiary.  Also, this Act removes spouses or fiancés of U.S. citizens convicted of those offenses above from eligibility for the “K” non-immigrant status.

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On May 4, 2011, the Board of Immigration Appeals (BIA) set forth a framework for the Immigration Judge to assess the competency of respondents in removal proceedings and remanded the case, finding good cause to believe the respondent was not sufficiently competent to proceed with the hearing.

Respondent in this case came from Jamaica and was removable on the basis of his conviction for two or more crimes involving moral turpitude.  Respondent had been diagnosed with schizophrenia, and indicated that he needed medication. At the individual hearing, the Immigration Judge denied Respondent’s asylum relief and summarized the respondent’s mental health history.  However, Immigration Judge did not make an explicit finding regarding respondent’s mental competency.

The BIA remanded the case to the Immigration Judge for further proceedings because the Board concluded that the respondent lacked sufficient competency to proceed with the hearing. According to the BIA, the record includes several psychiatric reports that diagnose him with mental illness, and during criminal proceedings, the respondent was found to be unfit to proceed with a trial.  More importantly, the BIA set forth a framework for the IJ to assess the competency of respondents in removal proceedings as below:

• Aliens in immigration proceedings are presumed to be competent and, if there are no indicia of incompetency in a case, no further inquiry regarding competency is required.
• The test for determining whether an alien is competent to participate in immigration proceedings is whether he or she has a rational and factual understanding of the nature and object of the proceedings, can consult with the attorney or representative if there is one, and has a reasonable opportunity to examine and present evidence and cross-examine witnesses.
• If there are indicia of incompetency, the Immigration Judge must make further inquiry to determine whether the alien is competent for purposes of immigration proceedings.
• If the alien lacks sufficient competency to proceed, the Immigration Judge will evaluate appropriate safeguards.
• Immigration Judges must articulate the rationale for their decisions regarding competency issues.

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On April 29, 2011, the Board of Immigration held that service of an NTA on a minor 14 years of age or older at the time of service is effective, even though notice was not also served on an adult with responsibility for the minor. In Matter of Cubor-Cruz, the Respondent was 17 years old at the time of entry to the United States, and was subject to removal proceedings. He was served in person with an NTA, and he failed to appear for his scheduled hearing before the Immigration Judge.  He argued that he did not receive proper notice of the hearing because the notice should have been given to his step-father or a legal guardian since he was only 17 years old at the time.

The BIA rejected Respondent’s contention and held that nothing in the regulations or precedents precludes the Department of Homeland Security, as a matter of policy or practice, from also serving an adult when a minor is between the ages of 14 and 18.  Hence, in this case, the BIA concluded that the service of the Notice to Appear on the respondent’s step-father or another legal guardian was not required under the regulations.

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On April 19, 2011, President Obama hosted a White House Meeting with 70 national leaders—including Mayor Bloomberg, former Governor Arnold Schwarzenegger, among others—to discuss the challenge of fixing our broken immigration system.

According to the press, the President expressed disappointment over Congress’s failure to produce comprehensive immigration reform (CIR), or even components of CIR like the DREAM Act, and enumerated the many problems resulting from our broken system—families torn apart, shipping talent overseas, wage equity and work eligibility issues, etc. In the same meeting, the President also stated that the “Administration continues to improve our legal immigration system, secure our borders, and enhance our immigration enforcement so that it is more effectively and sensibly focusing on criminals.” Many reports, however, argue that administrative reforms thus far have not been ambitious enough, or as effective as the White House claims.

Moreover, the President seems to be pinning all future immigration relief on Congressional action—stating that “the only way to fix what’s broken about our immigration system is through legislative action in Congress.”

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