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Friday, October 9, 2015
- Asylum seekers who travel to the United States to escape persecution in their home countries receive no assistance from the U.S. government and are not allowed to work for months, which activists say lead many to live on the streets or work illegally.
And despite a recent high-level judicial decision on the issue, many say only action by Congress will be able to fix the problem permanently.
Current U.S. law bars asylum-seekers entering the United States from applying for work authorisation for at least six months, a timeframe that is often only a minimum. In fact, waiting times can typically extend for several additional months due to what is known as the “asylum clock”, a term used to describe the six-month period during which asylum-seekers wait for their claims to be adjudicated by U.S. immigration laws.
“The problem, however, is that this is actually not a real clock,” Bill Frelick, the director of the refugee programme at Human Rights Watch, a global watchdog group, told IPS. “It’s a clock that stops and starts when a delay in the proceedings is caused by the applicant. But when it stops, sometimes it takes years to restart it again.”
The issue is discussed at length in a new report from Human Rights Watch, which notes that the main feature of the clock is its ability to start and stop because of what are also called “applicant-caused delays” (ACD). These can range from an applicant’s inability to find an attorney, to his or her decision to postpone a hearing.
“The [ACD] provisions are actually a result of regulations implemented by the two main federal agencies that deal with asylum-seekers,” Mary Kenney, a senior attorney at the American Immigration Council (AIC), a non-profit here, told IPS.
The two federal agencies Kenney refers to are the U.S. Citizens and Immigration Services (USCIS), which is a part of the U.S. Department of Homeland Security (DHS), and the Executive Office for Immigration Review (EOIR), an agency of the U.S. Department of Justice (DOJ) that adjudicates immigration cases.
“It is important to distinguish between the [ACD] provisions from the 180-day waiting period,” Kenney says. “The 180-day waiting period is the result of legislation passed by Congress, which didn’t mention anything about the clock’s start and stop rules.”
On the other hand, the asylum clock regulation is a result of the way the legislation was implemented by the USCIS and the EOIR, she notes.
Although it declined to comment on the report itself, a USCIS spokesman told IPS that the recommendations brought forward by HRW, which include legislative amendments to two U.S. statutes, would require legislative action, a process which USCIS, as a federal agency that implements congressional legislation, is not a part of.
Nevertheless, things seem to be moving in the right direction for asylum seekers. In light of the difficulties of going through the legislative process, some have opted for a less direct approach by attempting to change some of the regulations that implement current U.S. law.
Last week, a judge in the state of Washington ordered the approval of a nationwide class action settlement agreement, which originated from a case filed in 2011 by the AIC and the Northwest Immigrant Rights Project (NWIRP), an organisation based in Seattle that assists immigrants and refugees.
Due to this settlement, beginning Dec. 3 some of the “clock” hurdles currently faced by asylum seekers are going to give way to a fairer and more transparent process, advocates say.
“Up until the settlement, courts had a policy according to which the clock wouldn’t start until the applicant actually appeared for his or her first hearing in court, which obviously could take several months,” Chris Strawn, an attorney at NWIRP Seattle’s office, told IPS. “Now, thanks to the settlement, the clock starts from the moment in which the application is filed, regardless of the time it’s going to take for the applicant to appear in court.”
Another major improvement has to do with those instances in which a judge denies the application and the applicant appeals to the Board of Immigration Appeals (BIA), the highest administrative body that interprets and applies immigration law. Prior to the recent settlement, handed down Nov. 4, an appeal immediately brought the asylum clock to a halt, even if the BIA later reversed the judge’s decision and sent the case back down for consideration.
“With the old rule, the judge’s denial meant that the clock would stop, and it would stop permanently,” the AIC’s Kenney says. “Now, however, if the [BIA] remands the case, the clock will restart and the applicant will be credited with the time lost during the appeal.”
This is a major change, she says.
The settlement contains other improvements, as well, including more flexible and transparent USCIS practices likely to contribute to fewer bureaucratic problems for people who apply for asylum status in the United States.
The Nov. 4 settlement will make it easier for asylum seekers to obtain work authorisation within a reasonable time. But according to Human Rights Watch, much remains to be done to permanently rectify this issue.
“As we were working on the report, we also noticed that other developed countries had individualised procedures for asylum seekers, and provided them with food and housing,” Frelick says. “But in the United States, there are no such safety nets.”
Often, he says, asylum-seekers find themselves with no work and are forced to live on the streets, subsisting off of food provided by charities.
The report calls on the U.S. Congress to repeal the provisions concerning work authorisation in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), and amend Section 208 of the Immigration and Nationality Act (INA), by allowing asylum seekers to apply for work authorisation as early as 30 days after filing their application.
For now, the settlement amends some of the regulations, but the IIRIRA and INA have remained untouched.
The EOIR declined to comment on these recommendations, but told IPS that the agency stands by the Nov. 4 settlement agreement. On Nov. 21, the EOIR will hold a teleconference to assist stakeholders in understanding the terms of the settlement, with more information available here.