Case 2:11-cv-02108 Document 1 Filed 12/15/11 Page 1 of 37

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

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A.B.T., K.M.-W., G.K., L.K.G., D.W.,

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Individually and on Behalf of All Others

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Similarly Situated,

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Plaintiffs,

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v.

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U.S. CITIZENSHIP AND IMMIGRATION

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SERVICES; EXECUTIVE OFFICE FOR

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IMMIGRATION REVIEW; Janet NAPOLITANO, )

Secretary, Department of Homeland Security;

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Alejandro MAYORKAS, Director, U.S.

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Citizenship and Immigration Services;

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Eric H. HOLDER, Jr., Attorney General of the )

United States; Juan OSUNA, Director, Executive )

Office for Immigration Review,

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Defendants.

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__________________________________________)

Civil Action No.
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
CLASS ACTION

Plaintiffs A.B.T., K.M.-W., G.K. and L.K.G. and D.W. bring this action on behalf of themselves and all similarly situated asylum applicants and allege as follows:

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INTRODUCTION 1. Plaintiffs and the class members that they seek to represent (“the class”) are asylum applicants in removal proceedings who challenge Defendants’ policies and practices that unlawfully prevent them from working even though their pending asylum claims have not been adjudicated within the six-month time period prescribed by statute. Plaintiffs and class members have applied for asylum because they have been persecuted or fear persecution in their home countries and seek safe haven in the United States. Most are in dire financial straits. Due to Defendants’ unlawful policies and practices preventing them from obtaining employment authorization, they have been forced to rely on the goodwill of others to support themselves and their families while they await decisions on their asylum applications. This process can take many months and sometimes years. 2. By statute, Congress directed Defendants to make a decision on asylum applications within six months. During this 180-day period, an asylum applicant is not eligible to work. Very often, however, asylum applications are not – and at times, cannot be – decided within six months. In recognition of the economic hardship asylum seekers generally face, asylum applicants have a right to obtain an Employment Authorization Document (EAD) if their asylum applications have been pending for more than 180 days and they have met all eligibility requirements. By regulation, the running of the 180-day waiting period for an EAD – referred to herein as “the asylum EAD clock” – may be suspended, but only for applicant-requested or caused delay of the adjudication of their asylum application.
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3. Defendants have adopted uniform nationwide policies and practices to administer the asylum EAD clock. However, these policies and practices are inadequate to ensure that the majority of asylum applicants are issued work authorization in a meaningful time and manner so as to support themselves and their families while their asylum applications are adjudicated. Numerous systemic problems have plagued the administration of the asylum EAD clock since its inception over a decade ago. While Defendant Executive Office for Immigration Review (EOIR) recently issued policy guidance that may resolve a limited number of asylum EAD clock problems, the systemic issues challenged in this lawsuit have not been resolved.
4. Plaintiffs and the class challenge several of Defendants’ policies and practices as violating the U.S. Constitution, the Immigration and Nationality Act (INA), the governing regulations, and the Administrative Procedure Act (APA). First, Plaintiffs and the class challenge the lack of meaningful notice about the status of their asylum EAD clocks. Defendants’ decisions to stop or not start or restart the asylum EAD clock are made without adequate notice, whether written or otherwise, to Plaintiffs and the class. There is no mandatory procedure in place to ensure that Plaintiffs and the class are informed that the asylum EAD clock is being stopped or not started or restarted or to inform asylum applicants in all instances of the reasons for taking these actions related to the asylum EAD clock. Often, asylum applicants do not learn of Defendants’ decisions to stop or not start or restart the asylum EAD clock until their applications for work authorization have been denied. Moreover, Plaintiffs and the class do not have a meaningful opportunity to contest or remedy Defendants’ improper asylum EAD clock determinations.
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5. Plaintiffs A.B.T., K.M.-W. and a subclass of similarly situated individuals challenge Defendants’ policy of not starting the asylum EAD clock upon the filing of a complete asylum application with the immigration court but instead starting it only at the first hearing before an immigration judge, whenever that might be scheduled.
6. Plaintiffs G.K., L.K.G., D.W. and a subclass of similarly situated individuals challenge Defendants’ policy and practice of not restarting the asylum EAD clock after an asylum case has been remanded by a federal court or the Board of Immigration Appeals (BIA) for further consideration of the asylum application.
7. As a direct result of these challenged policies and practices, Plaintiffs and the class have been or will be unlawfully deprived of timely, adequate notice of clock determinations and a meaningful opportunity to remedy these determinations. Plaintiffs and the subclasses have been or will be unlawfully denied work authorization due solely to an improper determination regarding the asylum EAD clock. In all cases, Plaintiffs and the class and subclasses have actively pursued their asylum applications beyond the 180-day waiting period excluding any periods of applicant-caused delay. In some cases, their asylum EAD clocks have been erroneously “permanently stopped.”
8. In August 2011, the U.S. Citizenship and Immigration Services’ (USCIS) Ombudsman issued recommendations acknowledging the existence of systemic asylum EAD clock problems, including the lack of a mechanism for an applicant to acquire accurate information about his or her asylum EAD clock and the lack of a standard procedure for correcting errors in the asylum EAD clock. See U.S. Citizenship and Immigration Services Ombudsman, Employment Authorization for Asylum Applicants: Recommendations to Improve Coordination and Communication (Aug. 26, 2011),
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available at http://www.dhs.gov/xlibrary/assets/cisomb-employment-authorization-forasylum-08262011.pdf [hereinafter USCIS Ombudsman Report]. Undersigned counsel and other organizations throughout the country have repeatedly requested that Defendants remedy their unlawful policies and practices. To date, however, Defendants have failed to do so.
JURISDICTION AND VENUE 9. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. § 1331, as a civil action arising under the Constitution and laws of the United States, and 5 U.S.C. § 701, et seq., as an action to set aside unlawful agency action or compel agency action unlawfully withheld or unreasonably delayed. Declaratory judgment is sought pursuant to 28 U.S.C. §§ 2201-02. 10. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(e)(1), (2) and (3) because Defendants are U.S. agencies and officers of the United States or agencies thereof acting in their official capacities. A substantial part of the events or omissions giving rise to the claims occurred in this district, Plaintiffs A.B.T. and K.M.W. reside in this district, and no real property is involved in this action.
PARTIES 11. Plaintiffs are all noncitizens in the United States who have been placed in removal proceedings, have filed complete Applications for Asylum and Withholding of Removal (Form I-589 or “asylum application”), have filed or will file an application for employment authorization (Form I-765) pursuant to 8 C.F.R. § 274a.12(c)(8), and would be eligible for employment authorization but for Defendants’ unlawful policies and practices.
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12. Plaintiff A.B.T. is a citizen of Eritrea who resides in Shoreline, Washington.
13. Plaintiff K.M.-W. is a citizen of Eritrea who resides in Seattle, Washington.
14. Plaintiff G.K. is a citizen of India who resides in Muttontown, New York. 15. Plaintiff L.K.G. is a citizen of Eritrea who resides in Dallas, Texas. 16. Plaintiff D.W. is a citizen of China who resides in Alhambra, California. 17. Defendant U.S. Citizenship and Immigration Services (USCIS), an agency of the Department of Homeland Security (DHS), is responsible for the timely and accurate processing and adjudication of applications for employment authorization. In making determinations to grant or deny applications for employment authorization, USCIS is responsible for the accurate calculation of the asylum EAD clock and for determining whether there has been delay requested or caused by the applicant for purposes of the asylum EAD clock. 18. Defendant Alejandro Mayorkas is the Director of USCIS and has ultimate responsibility for the timely and accurate processing and adjudication of applications for employment authorization and for the accurate calculation of the asylum EAD clock. He is sued in his official capacity. 19. Defendant Janet Napolitano is the Secretary of DHS and has ultimate responsibility for the administration and enforcement of the INA and all other laws relating to the immigration of noncitizens. She is sued in her official capacity. 20. Defendant Executive Office for Immigration Review (EOIR) is a component agency of the Department of Justice responsible for conducting removal
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hearings of noncitizens, i.e., proceedings to remove or deport them from the United States. Asylum applications are filed with EOIR, in the immigration court having jurisdiction over the case, when an applicant has been placed in removal proceedings. With respect to asylum cases over which it has jurisdiction, EOIR has responsibility for the accurate calculation of the asylum EAD clock and for determining whether there has been delay requested or caused by the applicant for purposes of the asylum EAD clock.
21. Defendant Eric Holder, Jr. is the Attorney General of the United States and is responsible for the Department of Justice and its component agencies, including EOIR. Under delegated authority from the Attorney General, EOIR administers the U.S. immigration court system. Attorney General Holder is sued in his official capacity.
22. Defendant Juan Osuna is the Director of EOIR and has ultimate responsibility for overseeing immigration court proceedings, appellate reviews, and administrative hearings. He is sued in his official capacity.
LEGAL AND FACTUAL BACKGROUND Asylum Application Process
23. Any noncitizen who is in the United States or seeking admission at a port of entry may apply for asylum. 8 U.S.C. § 1158(a)(1). An asylum applicant must demonstrate either past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B)(i). With limited exceptions, an asylum application must be filed within one year of an applicant’s arrival in the United States. 8 U.S.C. § 1158(a)(2)(B).
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24. Generally, an asylum application must be adjudicated within 180 days after it is filed. USCIS and EOIR are jointly responsible for calculating this 180-day period. 8 C.F.R. §§ 208.7(a)(2), 1208.7(a)(2). Delay requested or caused by the applicant will toll this period. Id. For asylum applications heard during removal proceedings, EOIR has adopted an asylum adjudications clock to track the 180-day waiting period.
25. Noncitizens who are not in removal proceedings may file “affirmative” asylum applications with USCIS. They must attend an interview with a USCIS asylum officer, who may grant, deny, refer, or dismiss the application. 8 C.F.R. §§ 208.9(b), 208.14(c), 1208.9(b), and 1208.14(c).
26. In some cases, after a noncitizen files an “affirmative” asylum application, an asylum officer may “refer” the case to EOIR, thus initiating removal proceedings. 8 C.F.R. §§ 208.14(c), 1208.14(c). The asylum application is then considered a “defensive” asylum application. A referral to an immigration judge is not a final decision in the case and does not constitute a denial of the asylum application. Id. Instead, an immigration judge reviews the previously filed asylum application de novo without the applicant having to file a new asylum application.
27. In other defensive cases, the noncitizen will file the application directly with EOIR. In these cases, the regulations require that the asylum application be filed with the “immigration court.” 8 C.F.R. § 1208.4(b)(3). Unlike other pleadings which may be filed with the immigration court at any time, EOIR’s sub-regulatory policy and practice permits asylum applications to be filed only at a hearing before an immigration judge. Memorandum from Chief Immigration Judge, Brian O’Leary, Operating Policies
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and Procedures Memorandum 11-02: The Asylum Clock (Nov, 15, 2011) 5-6, available at http://www.justice.gov/eoir/efoia/ocij/oppm11/11-02.pdf [hereinafter OPPM 11-02]. This precludes the asylum EAD clock from starting until the date of such a hearing even though a complete asylum application has been filed with the immigration court. This policy and practice is inconsistent with the statutory and regulatory framework, under which the waiting period should begin when a complete asylum application is filed with the immigration court.
28. All defensive asylum applications are adjudicated by immigration judges following a staggered series of hearings, which — due to congested court calendars — may span months or even years after the initial hearing. 8 C.F.R. §§ 208.14(a), 1208.14(a). If the immigration judge denies an asylum application, the applicant may appeal to the BIA. 8 U.S.C. § 1158(d)(5)(A)(iv). If the BIA affirms the denial, the applicant may appeal to the relevant federal court of appeals. 8 U.S.C. § 1252(a). EAD Application Process for Applicants in Removal Proceedings
29. The INA authorizes DHS to adopt regulations authorizing employment for asylum applicants. 8 U.S.C. § 1158(d)(2). While regulations prescribe that USCIS has discretion to grant or deny EAD applications to well over a dozen categories of immigrants and nonimmigrants, the regulations afford USCIS no such discretion with respect to EAD applications filed by asylum applicants. See 8 C.F.R. § 274a.13(a)(1) and (2). Thus, an asylum applicant who has met the regulatory requirements has a right to work authorization. Id.
30. The only regulatory eligibility requirements for an EAD are that the asylum applicant is not an aggravated felon; that the applicant has filed a complete
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asylum application; that the asylum application has not been denied at the time the EAD application is decided; and that, absent exceptional circumstances, the asylum applicant has not failed to appear for an interview or hearing. 8 C.F.R. §§ 208.7(a), 1208.7(a). An asylum application is complete for purposes of the 180-day asylum EAD clock when it contains answers to all of the questions on the application form, is signed, and is accompanied by the materials specified in the regulations and the instructions to the application form. 8 C.F.R. §§ 208.3(c)(3), 1208.3(c)(3). If a defensive asylum application is not adjudicated by an immigration judge within 180 days of its filing (not including periods of applicant-caused delay), an applicant who has satisfied these eligibility requirements has a right to an EAD.
31. USCIS is responsible for deciding all EAD applications for asylum applicants, including those in removal proceedings. An application for employment authorization, Form I-765, may be filed with USCIS at any time after the first 150 days of the waiting period for an EAD. 8 C.F.R. § 208.7.
32. Defendants have adopted regulatory requirements governing USCIS adjudication of EAD applications filed by asylum applicants. 8 C.F.R. §§ 208.7, 274a.12(c)(8), 274a.13(a), and 1208.7. When an asylum applicant is in removal proceedings, EOIR’s policies and practices, adopted for its calculation of the asylum adjudications clock, are applied by both Defendant agencies to the asylum EAD clock.
33. Once an EAD has been granted, the applicant remains eligible for it throughout the adjudication of the asylum application, including administrative and judicial appeals. 8 C.F.R. §§ 208.7(b)(1), 1208.7(b)(1). The Asylum EAD Clock
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34. For both affirmative and defensive asylum applicants, the 180-day asylum EAD clock begins to run on the date the applicant files a complete asylum application. 8 C.F.R. §§ 208.7(a)(1), 1208.7(a)(1), 208.3-4, 1208.3-4.
35. The asylum EAD clock continues to run unless there is a “delay requested or caused by the applicant,” 8 C.F.R. § 208.7(a)(2), 8 C.F.R. § 1208.7(a)(2), or unless the asylum application is denied before the EAD application is adjudicated. 8 C.F.R. §§ 208.7(a)(1); 1208.7(a)(1). Applicant-caused delays include an applicant’s “failure without good cause to follow the requirements for fingerprint processing,” and any period during which an asylum applicant fails to appear to receive and acknowledge receipt of a USCIS asylum officer’s decision. 8 C.F.R. §§ 208.7(a)(2), 208.9(d), 1208.7(a)(2), 1208.9(d).
36. Defendants USCIS and EOIR are jointly responsible for calculating the 180-day waiting period for EAD eligibility for asylum applicants. 8 C.F.R. §§ 208.7(a)(2), 1208.7(a)(2). For EAD applications filed in connection with affirmative asylum cases, USCIS tracks the 180-day period and relies upon its own calculations to decide if this waiting period is satisfied when it decides an EAD application. In contrast, for EAD applications filed in connection with defensive asylum applications – whether referred from USCIS or filed directly with the immigration court – USCIS relies upon EOIR’s calculation of the 180-day waiting period.
37. Defendant EOIR purports to only administer an asylum clock to track the statutory 180-day adjudication period and not to track the 180-day period for EAD eligibility for asylum applicants. Because the same applicant-requested or caused delay regulation applies to both 180-day periods, EOIR’s asylum adjudication clock is, de
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facto, an asylum EAD clock and is relied upon by Defendant USCIS for this purpose. Moreover, USCIS has stated as much, confirming that it relies on EOIR’s 180-day asylum clock to make determinations about employment authorization and that it has no authority or ability to alter EOIR’s asylum clock. Moreover, USCIS relies upon the 180day clock maintained by EOIR to make determinations about employment eligibility and states that it has no authority or ability to alter EOIR’s 180-day asylum clock.
38. Immigration courts across the country are overwhelmed with their caseloads and are under intense pressure to meet their own statutory 180-day adjudication deadline. EOIR evaluates immigration judges based on their ability to meet this case completion requirement and holds them accountable for the length of time asylum applications are pending on their dockets. By creating the applicant-caused delay regulatory and sub-regulatory exemptions to the 180-day statutory adjudication period, EOIR limits its own accountability for adjudication delays. However, since Defendants use EOIR’s 180-day clock to make determinations about employment authorization, these exemptions, related solely to EOIR’s caseload management, are applied to systemically disqualify applicants from work authorization. See, e.g., paragraphs 46-48 below regarding the challenged Hearing Policy and Practice.
39. When an immigration judge adjourns a case, the reason must be entered into EOIR’s database using a specific adjournment code. OPPM 11-02, at 7. Certain adjournment codes are intended to reflect “applicant-caused delay.” An immigration judge’s entry of an adjournment code that is intended to reflect applicant-caused delay will toll the 180-day EAD waiting period. The asylum EAD clock will remain tolled
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until Defendant EOIR makes another entry in the EOIR database that indicates that the clock has resumed.
40. EOIR’s Operating Policies and Procedures Memoranda (OPPMs) reiterate that only applicant-caused delays prevent the asylum clock from running and that, in such circumstances, the clock is stopped only for the number of days during which the delay continues. OPPM 11-02, at 7-10; Memorandum from Office of the Chief Immigration Judge, Operating Policies and Procedures Memorandum (OPPM) 05-07: Definitions and Use of Adjournment, Call-up and Case Identification Codes, available at http://www.justice.gov/eoir/efoia/ocij/oppm05/05-07.pdf. Defendants’ Unlawful Policies and Practices
41. Plaintiffs and class members challenge three specific policies and practices that Defendants have adopted with respect to the asylum EAD clock. For convenience, these are identified as “Notice and Review Policy and Practice,” “Hearing Policy and Practice,” and “Remand Policy and Practice.” These policies and practices conflict with the U.S. Constitution, the INA, governing regulations, and the Administrative Procedure Act (APA).
42. Notice and Review Policy and Practice. Defendants’ decisions to stop or not start or restart the asylum EAD clock are made without written notice or explanation and often off the record. While EOIR’s most recent operating guidance indicates that an immigration judge should state on the record the reason why a case is being adjourned, OPPM 11-02, the judge is not required to inform the asylum applicant if the adjournment will stop or not start or restart the asylum EAD clock. Applicants often do not learn of asylum EAD clock determinations unless and until they inquire about the status of their
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asylum EAD clocks or after their applications for work authorization have been denied. They also are not informed of the reasons that the asylum EAD clock was stopped or not started or restarted unless they make a specific inquiry. The written decisions from USCIS denying EAD applications do not include this information on any routine or systematic basis. Moreover, Plaintiffs do not have a meaningful opportunity to contest or remedy improper asylum EAD clock determinations nor is there any administrative mechanism to compel Defendants to issue work authorization after the 180-day waiting period has expired.
43. The USCIS Ombudsman recognized that the lack of a mechanism for asylum seekers to acquire accurate information about the amount of time accrued on their asylum EAD clocks creates confusion about employment eligibility. See USCIS Ombudsman Report, at 1, 5-6.
44. To contest a miscalculation of the asylum EAD clock, applicants must resort to an informal review process that is inadequate to timely remedy legal and factual errors. The USCIS Ombudsman has recognized the problems created by the lack of any standard procedure for correcting errors relating to asylum EAD clock determinations, which prevent Plaintiffs from establishing their eligibility for work authorization: “Ensuring that a delay is correctly identified as attributable either to the applicant or to the Federal Government is critical. Problems occur when delays are incorrectly attributed to the asylum applicant in circumstances that are actually caused by EOIR or USCIS. Additionally, when a delay that was caused by or requested by the applicant comes to an end, there is no easy way for the applicant to work with the Federal Government to restart the clock.” Id. at 2. The recent OPPM from Defendant EOIR
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merely reiterates the existing procedure and does not resolve these problems. OPPM 1102.
45. By failing to provide applicants with legally sufficient notice of decisions on their asylum EAD clocks and an adequate opportunity to challenge improper asylum EAD clock determinations, Defendants violate their rights under the Due Process Clause of the Fifth Amendment and the APA.
46. Hearing Policy and Practice. Defendants have a nationwide policy and practice of starting the asylum EAD clock only at a hearing before an immigration judge. Consequently, even when an asylum applicant has filed a complete asylum application with the “immigration court,” as the regulations require, the asylum EAD clock will not start until the applicant’s next court appearance, which – due to court backlogs and other reasons not attributable to the applicant – may be many months and often more than a year after the applicant filed the asylum application. OPPM 11-02. This illustrates a conflict in the system by which Defendants have chosen to implement the EOIR adjudication mandate at the expense of applicants’ asylum EAD clocks. In many cases, individuals who would otherwise file a complete asylum application prior to a hearing before an immigration judge are deterred by Defendants’ Hearing Policy and Practice.
47. Defendants’ Hearing Policy and Practice, articulated in OPPM 11-02 and EOIR’s Immigration Court Practice Manual Chapter 3 (2009), at 3.1(b)(iii)(A), is binding on all EOIR personnel, including immigration judges, who must enter an adjournment code in the EOIR database in accord with this policy and practice. Defendant USCIS relies upon these entries by immigration judges in the database when it determines
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whether the 180-day waiting period for EAD eligibility has been met for purposes of deciding an EAD application.
48. By refusing to start the asylum EAD clocks of applicants who have filed complete asylum applications until the next court hearing, Defendants unlawfully prevent applicants from accruing time towards the 180-day waiting period for purposes of employment eligibility.
49. Remand Policy and Practice. Defendants have a nationwide policy and practice of not starting or restarting the asylum EAD clock after a previously denied asylum case has been remanded for adjudication. OPPM 11-2 at 16. The asylum EAD clock stops running when an asylum application is denied before an EAD has been issued. 8 C.F.R. §§ 208.7(a)(1), 1208.7(a)(1). However, when, upon appeal to either the BIA or a federal appeals court, the asylum case is remanded for further adjudication of the asylum application, the denial necessarily is vacated. Because there no longer is a denial of the asylum application when a remand order is entered, there also no longer is a basis under the statute and regulations for the asylum EAD clock to remain stopped. Instead, the asylum EAD clock should start or restart as of the point at which it had previously stopped. In violation of the statute and regulations, however, Defendants policy and practice is to permanently stop the asylum EAD clock upon the denial of an EAD application and to refuse to start or restart it upon a remand.
50. Defendants’ Remand Policy and Practice, articulated in OPPM 11-02, is binding on all EOIR personnel, including immigration judges and thus adversely impacts asylum EAD clock determinations. Defendant USCIS relies upon EOIR’s determinations of the asylum EAD clock, as reflected in the EOIR database, when it determines whether
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the 180-day waiting period for EAD eligibility has been met for purposes of deciding an EAD application.
51. By refusing to start or restart the asylum EAD clocks of applicants whose asylum cases have been remanded for further adjudication, Defendants’ Remand Policy and Practice unlawfully prevents applicants from accruing time for purposes of employment eligibility. Application of Defendants’ Policies and Practices to Plaintiffs
52. A.B.T.. Plaintiff A.B.T. first arrived in the United States on September 14, 2010, after fleeing Eritrea to escape past persecution and threats of future persecution due to her political opinion and membership in the social group of Eritrean women who have been subjected to gender-based violence. Following her entry into the United States she was apprehended by DHS agents, placed in removal proceedings and detained. Based on an interview with a DHS officer, she was released from detention after being found to have a credible fear of persecution if she returned to Eritrea. Her initial hearing was scheduled for March 13, 2012.
53. Because she would face a statutory bar on asylum for filing the application more than a year after her arrival in the United States if she waited to file her asylum application at her 2012 hearing, Ms. A.B.T. filed a complete asylum application with the Seattle immigration court on June 14, 2011. Her application was stamped as “lodged but not filed.”
54. Ms. A.B.T. applied for work authorization on or around November 15, 2011, by which date her complete asylum application had been pending for more than 150 days, exclusive of any period of applicant-caused delay. Due to Defendants’ policy
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of filing defensive asylum applications only in open court at a hearing, and due to the absence of legally sufficient procedures through which Ms. A.B.T. can address this issue, her asylum EAD clock never started and her EAD application will be improperly denied.
55. Ms. A.B.T. did not receive notice from the immigration court or USCIS that her asylum EAD clock did not start when she filed her asylum application with the immigration court.
56. Without the ability to work, Ms. A.B.T. relies on her cousin to provide her with housing and basic needs such as food and clothing. Ms. A.B.T. also relies entirely on her cousin to pay for her medical expenses and thus, is unable to visit the doctor as often as she feels is necessary.
57. Ms. A.B.T. is expected to reimburse her cousin for all of her living expenses. Because Ms. A.B.T. is not authorized to work, she has no ability to pay off this debt and each day grows more indebted.
58. Due to Defendants’ polices and practices, Ms. A.B.T. will not be granted employment authorization for at least 180 days after her initial hearing on March 13, 2012. But for Defendants’ Hearing Policy and Practice, Ms. A.B.T. would be eligible for an EAD at this time.
59. K.M.-W.. Plaintiff K.M.-W. arrived in the United States on December 17, 2009, after fleeing Eritrea to escape past persecution and threats of future persecution due to his political opinion. Following his entry into the United States, he was placed in removal proceedings and detained. Based on an interview with a DHS officer, he was found to have a credible fear of persecution if he returned to Eritrea. As a result, he was released on bond and, following a change of venue to the immigration court in Seattle,
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Washington, given notice that a hearing was scheduled for December 7, 2010 at the Seattle immigration court.
60. Two months before the scheduled hearing, the immigration court notified him that the hearing had been postponed to November 29, 2011 due to unforeseen circumstances.
61. Because he would face a statutory bar on asylum for filing the application more than a year after his arrival in the United States if he waited to file his asylum application at the postponed hearing, Mr. K.M.-W. moved to request an earlier hearing date. The immigration judge denied the motion but instead directed him to tender an asylum application to the immigration court, where it would be stamped with the date and marked as “lodged” but not filed. The immigration judge stated that this would satisfy the statutory one-year filing deadline and thus protect Mr. K.M.-W.’ right to proceed with his asylum application. However, the immigration judge also stated that the application would not be “formally received” by the immigration court until the next hearing.
62. Mr. K.M.-W. filed a complete asylum application with the Seattle immigration court on December 13, 2010 that was stamped as “lodged but not filed.”
63. Mr. K.M.-W. applied for work authorization on or around October 26, 2011, by which date his complete asylum application had been pending for more than 180 days based upon his filing date of December 13, 2010 and exclusive of any period of applicant-caused delay. Due to Defendants’ policy of filing defensive asylum applications only in open court at a hearing, and due to the absence of legally sufficient procedures through which Mr. K.M.-W. can address this issue, his asylum EAD clock never started and as a result, his EAD application was denied on December 8, 2011.
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64. Mr. K.M.-W. has never received notice from the immigration court or USCIS that his asylum EAD clock did not start when he filed the application with the immigration court.
65. At the November 29, 2011, Mr. K.M.-W.’s asylum EAD clock started at day one. His asylum EAD clock does not reflect the 11 month period between the filing of the asylum application with the immigration court on December 13, 2010 and the hearing on November 29, 2011.
66. Without the ability to work, Mr. K.M.-W. relies entirely upon the generosity of his cousin to meet his basic needs. He lives with his cousin and his cousin pays for his clothing and food. Mr. K.M.-W. also is dependent on his cousin to pay for medical care and thus, does not have regular access to a doctor.
67. Mr. K.M.-W. is 23 years old and worked as a farmer in Eritrea. He hoped to attend classes to pursue a nursing profession in the United States as a means of supporting himself, but because he is not lawfully able to work, he cannot begin to save money to attend classes.
68. Mr. K.M.-W. considers himself to be a burden on his family as he is unable to contribute to the household income and to support himself.
69. Due to Defendants’ polices and practices, Mr. K.M.-W. will not be granted employment authorization before his individual hearing on February 7, 2012. But for Defendants’ Hearing Policy and Practice, Mr. K.M.-W. would be eligible for an EAD at this time.
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70. G.K.. Plaintiff G.K. arrived in the United States on April 17, 2001, after fleeing India to escape past persecution and threats of future persecution due to her religion and political opinion.
71. She filed a complete asylum application with USCIS on April 18, 2002. USCIS referred her case to the San Francisco immigration court on May 29, 2002. At an October 7, 2002 hearing, the immigration judge denied her application for asylum. At that time, her asylum EAD clock was at 172 days. On appeal, the BIA and the Ninth Circuit both affirmed the denial of her asylum application.
72. New counsel filed a motion to reopen the case at the BIA, arguing that prior counsel was ineffective and had prejudiced her case. The BIA denied the motion to reopen, but on appeal the Ninth Circuit granted her petition for review. The court found that former counsel’s failure to effectively document and present the asylum claim rendered the removal proceedings so fundamentally unfair that Ms. G.K. was prevented from reasonably presenting her case. The court remanded the case to the BIA on August 31, 2009.
73. Pursuant to this Ninth Circuit decision, on February 26, 2010, the BIA vacated its denial of Ms. G.K.’s motion to reopen, reopened the removal proceedings, and remanded the case to the immigration judge for further consideration of the asylum application. The immigration judge then scheduled a hearing in her case for April 29, 2013.
74. Ms. G.K. intends to apply for work authorization on or around December 16, 2011, by which date her complete asylum application will have been pending for more than 180 days, exclusive of any period of applicant-caused delay or period of
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denial. Due to Defendants’ policy of failing to restart an asylum EAD clock following a remand, Ms. G.K.’s asylum EAD clock has remained permanently stopped at 172 days and her EAD application will be improperly denied.
75. Ms. G.K. never received notice from the immigration court or USCIS that her asylum EAD clock was not restarted following the BIA’s decision to reopen her case and remand it to the immigration court. To date, she has been unable to correct the problems with her asylum EAD clock.
76. Without the ability to work, Ms. G.K. has never been able to use the skills she developed as a fashion merchandiser working for an Indian company with international clients, nor her advanced culinary degree. She has long hoped to use her college degree in home science as a chef in the United States. Though she has been offered opportunities to work, she has been unable to pursue these opportunities without work authorization.
77. Ms. G.K. lives with her husband and their 12 year old daughter and nine year old son. Because she is unable to work, the family relies entirely on her husband to provide for them.
78. Due to Defendants’ Remand Policy and Practice, Ms. G.K.’s asylum EAD clock is permanently stopped. But for Defendants’ Remand Policy and Practice, Ms. G.K. would be eligible for an EAD at this time.
79. L.K.G.. Plaintiff L.K.G. first arrived in the United States on January 11, 2007, after fleeing Eritrea to escape past persecution and threats of future persecution due to her political opinion. On January 23, 2007, after determining that Ms. L.K.G. credibly feared persecution in her native Eritrea, USCIS issued her a Notice to Appear.
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80. Ms. L.K.G. filed a complete asylum application with the Dallas immigration court at her hearing on September 10, 2007, and was denied asylum on October 19, 2007. At the time of this denial, Ms. L.K.G.’s asylum EAD clock was at 39 days. Ms. L.K.G. appealed this decision to the BIA, which dismissed her appeal on August 19, 2008.
81. On November 19, 2008, after retaining new counsel, Ms. L.K.G. moved to reopen her case before the BIA based on ineffective assistance of former counsel and the existence of previously unavailable material evidence. On May 29, 2009, the BIA granted her motion, reopened her removal proceedings, and remanded the case to the immigration judge for further consideration of the asylum application. She attended her first hearing after remand on August 16, 2010. Her next hearing was then scheduled for April 20, 2011. On March 15, 2011, her attorney sought a continuance of the April 20, 2011 hearing due to a simultaneously scheduled court hearing. The court rescheduled the hearing for October 19, 2011, but later, on its own motion, postponed it until August 20, 2013.
82. Ms. L.K.G. previously applied for and was granted an EAD on December 4, 2008, but this EAD expired on December 11, 2009. Ms. L.K.G. applied to renew her work authorization on or about October 26, 2009. But for Defendants’ Remand Policy and Practice, Ms. L.K.G. would have had more than 180 days on her asylum EAD clock at the time of this October 2009 EAD application and thus would have been eligible for an EAD.
83. Ms. L.K.G.’s EAD application was denied on January 19, 2010. Following this denial, she discovered for the first time that her asylum EAD clock was
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Case 2:11-cv-02108 Document 1 Filed 12/15/11 Page 24 of 37
stopped at 39 days and that none of the period since the BIA remand had been applied to her asylum EAD clock.
84. Without the ability to work, Ms. L.K.G. has relied entirely on the generosity of her cousin, her church and friends to meet her basic needs, including a place to stay, food and clothing. In addition, she has had to rely on the generosity of others to pay for over $1,000 of medical expenses.
85. The emotional strain of her situation has caused her to seek counseling at her church, where she receives emotional support.
86. Ms. L.K.G.’s prior work experience involved taking and developing photographs. She is 33 years old and would like to be able to support herself. Because she does not have work authorization, she cannot apply for jobs where she could use her skills.
87. Due to Defendants’ Remand Policy and Practice, Ms. L.K.G.’s asylum EAD clock is permanently stopped at 39 days. But for Defendants’ Remand Policy and Practice, Ms. L.K.G. would be eligible for an EAD at this time.
88. D.W.. Plaintiff D.W. first arrived in the United States on September 21, 2002, after fleeing China to escape past persecution and threats of future persecution due to his religion. On February 10, 2003, Mr. D.W. filed a complete asylum application with the Los Angeles Asylum Office. On June 6, 2003, Mr. D.W.’s case was referred by USCIS to the Los Angeles Immigration Court. At the time Mr. D.W.’s asylum application was referred to the immigration court, his asylum clock was at 122 days.
89. Mr. D.W. attended his initial hearing on July 8, 2003. His asylum EAD clock was set at 148 days on this date. Mr. D.W.’s asylum application was denied by an
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immigration judge on February 24, 2005. Because scheduling delays between July 8, 2003 and February 24, 2005 were at the request of Mr. D.W.’s attorneys, Mr. D.W.’s asylum EAD clock remained at 148 days at the time of the immigration judge’s decision.
90. Mr. D.W. appealed the immigration judge decision to the BIA and the BIA affirmed the denial on May 4, 2006. On August 17, 2007, following a subsequent appeal, the Ninth Circuit granted a joint motion to remand the case to the BIA to consider whether the immigration judge may have misconstrued some of the record evidence in reaching her adverse credibility determination.
91. On March 7, 2008, the BIA remanded Mr. D.W.’s case to the immigration judge for reconsideration of his eligibility for asylum and entry of a new decision. Following this remand, hearings in Mr. D.W.’s case were postponed by the immigration court numerous times, during the period June 26, 2008 to January 26, 2011. None of these postponements were at the request of Mr. D.W.. Consequently, but for Defendants’ Remand Policy and Practice, Mr. D.W.’s asylum EAD clock should have exceeded 180 days during this time. His next hearing is scheduled for April 30, 2012.
92. Mr. D.W. previously applied for and was granted an EAD in 2003. His most recent request to renew his employment authorization, filed on March 28, 2011, was denied on May 24, 2011. Defendants applied their Remand Policy and Practice to Mr. D.W. in reaching this decision and failed to apply any of the time since the remand in his case to his asylum EAD clock.
93. Mr. D.W. had to leave his job after his EAD expired. He initially relied on his savings to pay for food, rent and other expenses. His savings have run out and he now is borrowing money from a friend to pay for all of his living expenses.
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94. Mr. D.W. is not sure that he will be able to borrow money to continue to pay for an attorney to represent him in his asylum proceedings.
95. Due to Defendants’ Remand Policy and Practice, Mr. D.W.’s asylum EAD clock is permanently stopped at 148 days. But for Defendants’ Remand Policy and Practice, Mr. D.W. would be eligible for an EAD at this time.
CLASS ALLEGATIONS 96. Plaintiffs bring this action on behalf of themselves and all other persons who are similarly situated, pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2). A class action is proper because this action involves questions of law and fact common to the class, the class is so numerous that joinder of all members is impractical, the claims of the Plaintiffs are typical of the claims of the class, the Plaintiffs will fairly and adequately protect the interests of the class, and Defendants have acted on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate with respect to the class as a whole. 97. All Plaintiffs seek to represent a “Notice and Review class” consisting of:
All noncitizens in the United States who have filed or will file with Defendants a complete I-589 (Application for Asylum and Withholding of Removal); who have been or will be issued a Notice to Appear or Notice of Referral for removal proceedings; whose applications for employment authorization have been or will be denied; and whose asylum EAD clock determinations have been or will be made without legally sufficient notice or a meaningful opportunity to challenge such determinations. 98. The Notice and Review class is so numerous that joinder of all members is impracticable. Plaintiffs are not aware of the exact number of potential class members. Upon information and belief, there are thousands of asylum applicants to whom Defendants have failed or will fail to provide legally sufficient notice of the status of their
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asylum EAD clocks and a meaningful opportunity to challenge improper asylum EAD clock determinations.
99. A question of law common to the Notice and Review class is whether Defendants’ Notice and Review Policies and Practices violate the U.S. Constitution, the INA, the governing regulations, and the APA. Hearing Subclass
100. Plaintiffs A.B.T. and K.M.-W. seek to represent a subclass, entitled “Hearing Subclass,” consisting of:
Individuals who have been or will be issued a Notice to Appear or Notice of Referral for removal proceedings; who have filed or sought to file or who will file or seek to file a complete asylum application with the immigration court; but whose asylum EAD clocks did not start or will not start on the date that this application was or will be filed because of Defendants’ policy requiring asylum applications to be filed at a hearing before an immigration judge. 101. Plaintiffs filed their complete asylum applications with the immigration court more than 180 days ago, exclusive of any period of applicant-caused delay. Defendants have denied or will deny their applications for work authorization based on their Hearing Policy and Practice, which dictates that an EAD asylum clock can start or restart only at a hearing before an immigration judge. Consequently, Plaintiffs’ asylum EAD clocks do not reflect periods following the filing or attempted filing of a complete asylum application with the immigration court but prior to their next hearing. 102. The Hearing subclass is so numerous that joinder of all members is impracticable. Upon information and belief, there are hundreds of asylum applicants who are unable to obtain employment authorization because Defendants have refused or will refuse to start their asylum EAD clocks until a hearing before an immigration judge even
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though they already have filed or will file a complete asylum application with the immigration court prior to that hearing.
103. A question of law common to Hearing subclass is whether Defendants’ Hearing Policy and Practice violates the INA, the regulations, and/or the APA. Remand Subclass
104. Plaintiffs G.K., L.K.G. and D.W. seek to represent a subclass, entitled “Remand subclass,” consisting of:
Asylum applicants whose asylum EAD clocks were or will be stopped following the denial of their asylum applications by the immigration court, and whose asylum EAD clocks are not or will not be started or restarted subsequent to an appeal in which either the BIA or a federal court of appeals remands their case for further adjudication of their asylum claims 105. Plaintiffs filed complete asylum applications with the immigration court and their applications have been pending for more than 180 days, exclusive of any period of applicant-caused delay. Defendants have denied or will deny their applications for work authorization based on their Remand Policy and Practice, which dictates that an asylum EAD clock cannot be started or restarted following remand. 106. The Remand subclass is so numerous that joinder of all members is impracticable. Plaintiffs are not aware of the exact number of potential class members because Defendants are in the best position to identify such persons. However, upon information and belief, there are hundreds of asylum applicants who have been or will be denied employment authorization because Defendants unlawfully failed to start or restart their asylum EAD clocks following remand.
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107. A question of law common to the Remand subclass is whether the Defendants’ Remand Policy and Practice violates the INA, the immigration regulations, and/or the APA.
108. The claims of all the named Plaintiffs are typical of the Notice and Review class. The claims of Plaintiffs seeking to represent each proposed subclass are typical of the members of each respective proposed subclass.
109. The Plaintiffs will fairly and adequately represent and protect the interests of the members of the proposed Notice and Review class. The Plaintiffs seeking to represent each proposed subclass will fairly and adequately represent the interests of each respective proposed subclass.
110. Plaintiffs are represented by competent counsel with extensive experience in complex class actions and immigration law.
DECLARATORY AND INJUNCTIVE RELIEF ALLEGATIONS 111. Defendants have acted on grounds generally applicable to the proposed class and subclasses, thereby making appropriate final declaratory and injunctive relief with respect to the class and each subclass. 112. An actual and substantial controversy exists between the class and each subclass and the Defendants as to their respective legal rights and duties. Plaintiffs contend that Defendants’ actions violate Plaintiffs’ rights and the rights of proposed class and subclass members. 113. Defendants’ miscalculations of Plaintiffs and proposed class and subclass members’ asylum EAD clocks based upon their policies and practices has caused and
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will continue to cause irreparable injury to Plaintiffs and proposed class and subclass members. Plaintiffs have no plain, speedy, and adequate remedy at law.
114. The EAD applications of Plaintiffs and the class and subclasses have been or will be denied due to Defendants’ policies and practices challenged herein. Defendants’ actions constitute final agency action for the purpose of the APA, 5 U.S.C. § 701, et seq.
115. The INA and applicable regulations provide for no administrative appeal from a denial of an EAD application. Accordingly, Plaintiffs have exhausted their administrative remedies.
116. Under 5 U.S.C. §§ 702 and 704, Plaintiffs and proposed class and subclass members have suffered a “legal wrong” and have been “adversely affected or aggrieved” by agency action for which there is no other adequate remedy in a court of law.
117. Based on the foregoing, the Court should grant declaratory and injunctive relief under 28 U.S.C. §§ 2201, 2202 and 5 U.S.C. § 702.
First Cause of Action Violation of the Immigration and Nationality Act and Regulations and
the Due Process Clause of Fifth Amendment: Lack of Notice and Meaningful Opportunity to Contest (on Behalf of All Plaintiffs
and the Notice and Review Class) 118. Plaintiffs incorporate by reference the allegations of fact set forth in the previous paragraphs. 119. Defendants have a nationwide Notice and Review Policy and Practice of not providing legally sufficient notice to asylum applicants when their asylum EAD clocks are stopped or not started or restarted during removal proceedings and when their EAD applications are denied, and of failing to provide a meaningful opportunity to
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contest asylum EAD clock determinations and EAD application denials. This policy and practice deprives Plaintiffs and the class of the opportunity to make informed decisions concerning whether to request a rescheduled hearing, continuance or delay in the adjudication of their asylum applications; the opportunity to address or cure any applicant-caused delay; and the opportunity to respond to and contest an incorrect decision concerning their asylum EAD clocks and EAD applications, including whether a rescheduled hearing, continuance, or delay was caused by the applicant.
120. Through this policy and practice, Defendants violate regulations governing the issuance of employment authorization documents, including inter alia, 8 C.F.R. §§ 274a.12(c)(8), 274a.13(a), 208.7, and 1208.7, and deprive Plaintiffs and the Notice and Review class of an opportunity to apply for a benefit provided under law without due process, in violation of the Fifth Amendment of the Constitution.
Second Cause of Action Violation of Administrative Procedure Act: Lack of Notice and Meaningful Opportunity to Contest (on Behalf of All Plaintiffs
and the Notice and Review Class) 121. Plaintiffs incorporate by reference the allegations of fact set forth in the previous paragraphs. 122. Defendants’ failure to provide asylum applicants with legally sufficient notice of or an opportunity to contest asylum EAD clock determinations and EAD denials is arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with the law. As such, it violates the Administrative Procedure Act, 5 U.S.C. § 701, et seq.
Third Cause of Action Violation of the Immigration and Nationality Act, Regulations and Due Process Clause of Fifth Amendment: Refusal to Start Asylum EAD Clock except at Hearing (on Behalf of Plaintiffs A.B.T. and
K.M.-W. and the Hearing Subclass)
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123. Plaintiffs incorporate by reference the allegations of fact set forth in the previous paragraphs.
124. Defendants have a nationwide Hearing Policy and Practice dictating that asylum EAD clocks can start only at a hearing. This policy and practice prevents some asylum applicants from filing an application with the immigration court at a time other than a scheduled hearing before an immigration judge. For those applicants who are able to file an asylum application with the immigration court prior to a hearing, this policy and practice prevents Defendants from immediately starting the asylum EAD clock upon the filing of the application. The clock does not start before the next scheduled hearing.
125. Through this policy and practice, which has prevented or will prevent Plaintiffs A.B.T. and K.M.-W. and the Hearing subclass from receiving work authorization during the legally permitted timeframe, Defendants violate the INA, including, inter alia, 8 U.S.C. §1158(d)(2), and its implementing regulations, including, inter alia, 8 C.F.R. §§ 208.3(c), 208.4(b), 208.7(a), 274a.12(c)(8), 274a.13(a), 1208.3(c), 1208.4(b), and 1208.7(a), and deprive the Plaintiffs and Hearing subclass of an opportunity to apply for a benefit provided under law without due process, in violation of the Fifth Amendment of the Constitution.
Fourth Cause of Action Violation of Administrative Procedure Act: Refusal to Start Asylum
EAD Clock except at Hearing (on Behalf of Plaintiffs A.B.T. and K.M.-W. Hearing Subclass)
126. Plaintiffs incorporate by reference the allegations of fact set forth in the previous paragraphs.
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127. Defendants’ refusal to start the asylum EAD clocks of Plaintiffs A.B.T. and K.M.-W. and the Hearing subclass members prior to their next scheduled hearings despite the filing of a complete asylum application with the immigration court is arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with the law. As such, it violates the Administrative Procedure Act, 5 U.S.C. § 701, et seq.
Seventh Cause of Action Violation of the Immigration and Nationality Act and Regulations: Failure to Restart the Asylum EAD Clock after Remand (on Behalf of Plaintiffs
G.K., L.K.G. and D.W. and the Remand Subclass) 128. Plaintiffs incorporate by reference the allegations of fact set forth in the previous paragraphs. 129. Defendants have a nationwide Remand Policy and Practice dictating that an asylum EAD clock cannot be started or restarted after the BIA or a federal appeals court has remanded an asylum case for adjudication. 130. Through this policy and practice, which has prevented or will prevent Plaintiffs G.K., L.K.G. and D.W. and the Remand subclass from receiving work authorization during a legally permitted timeframe, Defendants violate the INA, including, inter alia, 8 U.S.C. §1158(d)(2), and its implementing regulations governing the issuance of employment authorization documents, including inter alia, 8 C.F.R. §§ 274a.12(c)(8), 274a.13(a), 208.7(a)(2), and 1208.7(a)(2).
Eighth Cause of Action Violation of Administrative Procedure Act: Failure to Restart Asylum
EAD Clock on Remand (on Behalf of Plaintiffs G.K., L.K.G. and D.W. and the Remand Subclass)
131. Plaintiffs incorporate by reference the allegations of fact set forth in the previous paragraphs.
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132. Defendants’ refusal to start the asylum EAD clocks of the Plaintiffs G.K., L.K.G. and D.W. and the Remand subclass following remand by the BIA or a federal appeals court is arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law. As such, it violates the Administrative Procedure Act, 5 U.S.C. § 701, et seq.
Prayer for Relief Wherefore: A. Plaintiffs respectfully request that this Court:
1. Assume jurisdiction over this matter; 2. Certify this case as a class action, and certify a Notice and Review class, Hearing subclass, and Remand subclass; 3. Appoint all Plaintiffs as representatives of the Notice and Review class; 4. Appoint Plaintiffs A.B.T. and K.M.-W. as representatives of the Hearing subclass, and Plaintiffs L.K.G., G.K., and D.W. as representatives of the Remand subclass; 5. Appoint Matt Adams, Chris Strawn, Melissa Crow, Mary Kenney, Emily Creighton, Robert Pauw, Robert Gibbs and Iris Gomez as class counsel pursuant to Federal Rule of Civil Procedure 23(g). B. As remedies for each of the causes of action asserted above, Plaintiffs and class members request judgment as follows: 1. A declaratory judgment finding Defendants’ failure to provide legally sufficient notice to applicants whose asylum EAD clocks are
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stopped or not started or restarted during removal proceedings and a meaningful opportunity to correct errors to be arbitrary and capricious, an abuse of discretion, and in violation of the statute and regulations and a violation of due process; 2. A declaratory judgment finding Defendants’ Hearing Policy and Practice and Remand Policy and Practice to be arbitrary and capricious, an abuse of discretion, in violation of the statute and regulations, and a violation of due process; 3. A permanent injunction ordering that if an asylum applicant is in removal proceedings before an immigration judge, then any decision to stop or not start or restart the asylum EAD clock must be made on the record, and only after the applicant has been notified of the consequences of requesting or causing a delay and given an opportunity to respond; 4. A permanent injunction ordering Defendants to establish an adequate process for an asylum applicant to contest an asylum EAD clock or EAD decision that is considered erroneous; 5. A permanent injunction ordering Defendants to start the asylum EAD clock when an asylum applicant files a complete asylum application with EOIR; 6. A permanent injunction ordering Defendants to start or restart the asylum EAD clock following a remand of an asylum case by either the Board of Immigration Appeals or a federal court of appeals;
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Case 2:11-cv-02108 Document 1 Filed 12/15/11 Page 36 of 37 7. A permanent injunction ordering Defendant USCIS to readjudicate Plaintiffs’ EAD applications in accordance with the above-referenced guidelines; 8. Reasonable attorneys’ fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d), 5 U.S.C. § 504, or any other applicable law; and 9. Such other and further relief as this Court deems just and appropriate.
***
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Dated: December 15, 2011

By: s/ Matt Adams
s/ Christopher P. Strawn Matt Adams. #28287 Christopher P. Strawn #32243 NORTHWEST IMMIGRANT RIGHTS PROJECT 615 2nd Avenue, Suite 400 Seattle, WA 98104 (206) 587-4009 ext. 111 (206) 587-4025 (Fax) matt@nwirp.org chris@nwirp.org
Melissa Crow Mary Kenney Emily Creighton AMERICAN IMMIGRATION COUNCIL 1331 G Street NW, Suite 200 Washington, DC 20005 (202) 507-7512 (202) 742-5619 (Fax) mcrow@immcouncil.org mkenney@immcouncil.org ecreighton@immcouncil.org
Robert H. Gibbs Robert Pauw GIBBS HOUSTON PAUW 1000 Second Avenue, Suite 1600 Seattle, WA 98104 (206) 224-8790 (206) 689-2270 (Fax) rgibbs@ghp-law.net rpauw@ghp-law.net
Iris Gomez MASSACHUSETTS LAW REFORM INSTITUTE 99 Chauncy Street, Suite 500 Boston, MA 02111 (617) 357-0700 x. 331 (617) 357-0777 (Fax) igomez@mlri.org

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 Case 2:11-cv-02108-RAJ Document 34 Filed 06/05/12 Page 1 of 57

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

__________________________________________

)

B.H., M.A., A.S.D., M.F., H.L.,

)

L.M.M.M., B.M., G.K., L.K.G.,

)

and D.W.

)

Individually and on Behalf of All Others

)

Similarly Situated,

)

)

Plaintiffs,

)

)

v.

)

)

U.S. CITIZENSHIP AND IMMIGRATION

)

SERVICES; EXECUTIVE OFFICE FOR

)

IMMIGRATION REVIEW; Janet NAPOLITANO, )

Secretary, Department of Homeland Security;

)

Alejandro MAYORKAS, Director, U.S.

)

Citizenship and Immigration Services;

)

Eric H. HOLDER, Jr., Attorney General of the )

United States; Juan OSUNA, Director, Executive )

Office for Immigration Review,

)

)

Defendants.

)

__________________________________________)

No. CV11-2108-RAJ
FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
CLASS ACTION

Case 2:11-cv-02108-RAJ Document 34 Filed 06/05/12 Page 2 of 57
Plaintiffs B.H., M.A., A.S.D., M.F., H.L., L.M.M.M., B.M., G.K., L.K.G. and D.W. bring this action on behalf of themselves and all similarly situated asylum applicants and allege as follows:
INTRODUCTION 1. Plaintiffs and the class members that they seek to represent (“the class”) are asylum applicants in removal proceedings who challenge Defendants’ policies and practices that unlawfully prevent them from working even though their pending asylum claims have not been adjudicated within the six-month time period prescribed by statute. Plaintiffs and class members have applied for asylum because they have been persecuted or fear persecution in their home countries and seek safe haven in the United States. Most are in dire financial straits. Due to Defendants’ unlawful policies and practices preventing them from obtaining employment authorization, they have been forced to rely on the goodwill of others to support themselves and their families while they await decisions on their asylum applications. This process can take many months and sometimes years. 2. By statute, Congress directed Defendants to make a decision on asylum applications within six months. During this 180-day period, an asylum applicant is not eligible to work. Very often, however, asylum applications are not – and at times, cannot be – decided within six months. In recognition of the economic hardship asylum seekers generally face, asylum applicants have a right to obtain an Employment Authorization Document (EAD) if their asylum applications have been pending for more than 180 days and they have met all eligibility requirements. By regulation, the running of the 180-day waiting period for an EAD – referred to herein as “the asylum EAD clock” – may be
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suspended, but only for applicant-requested or caused delay of the adjudication of an asylum application.
3. Defendants have adopted uniform nationwide policies and practices to administer the asylum EAD clock. However, these policies and practices are inadequate to ensure that all statutorily eligible asylum applicants are issued work authorization in a meaningful time and manner so as to support themselves and their families while their asylum applications are adjudicated. Numerous systemic problems have plagued the administration of the asylum EAD clock since its inception over a decade ago. In response to ongoing complaints, Defendant Executive Office for Immigration Review (EOIR) recently issued policy guidance that may resolve a limited number of asylum EAD clock problems. However, the systemic issues challenged in this lawsuit have not been resolved.
4. Plaintiffs and the class challenge five of Defendants’ policies and practices as violating the U.S. Constitution, the Immigration and Nationality Act (INA), the governing regulations, and the Administrative Procedure Act (APA). First, Plaintiffs and the class challenge the lack of meaningful notice about the status of their asylum EAD clocks. Defendants’ decisions to stop or not start or restart the asylum EAD clock are made without adequate notice, whether written or otherwise, to Plaintiffs and the class. There is no mandatory procedure in place to ensure that Plaintiffs and the class are informed that the asylum EAD clock is being stopped or not started or restarted or to inform asylum applicants in all instances of the reasons for taking actions related to the asylum EAD clock. Often, asylum applicants do not learn of Defendants’ decisions to stop or not start or restart the asylum EAD clock until their applications for work
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authorization have been denied. Such denials generally fail to provide adequate notice of the factual basis for the EAD ineligibility determination and of the derogatory evidence relied upon. Moreover, Plaintiffs and the class do not have a meaningful opportunity to contest or remedy Defendants’ improper asylum EAD clock determinations.
5. Plaintiff B.H., and a subclass of similarly situated individuals challenge Defendants’ policy of not starting the asylum EAD clock upon the filing of a complete asylum application with the immigration court but instead starting it only at the first hearing before an immigration judge, whenever that might be scheduled.
6. Plaintiffs A.S.D., M.A. and a subclass of similarly situated individuals challenge Defendants’ policy and practice of starting or restarting the clock only at a hearing before an immigration judge. Due to Defendant EOIR’s case management, compounded by the congested immigration court dockets nationwide, hearings often are not scheduled in relation to the exigencies of each case within reasonable or predictable time frames but are staggered across periods of as long as three years.
7. Plaintiffs M.F., H.L., L.M.M.M., B.M. and a subclass of similarly situated individuals challenge Defendants’ policy and practice of indefinitely – and often permanently – stopping the asylum EAD clock when an applicant misses an interview with an asylum office of Defendant United States Citizenship and Immigration Services (USCIS) and the asylum application is referred to EOIR for adjudication of the asylum application in a removal hearing in immigration court.
8. Plaintiffs G.K., L.K.G., D.W., and a subclass of similarly situated individuals challenge Defendants’ policy and practice of not restarting the asylum EAD
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clock after an asylum case has been remanded by a federal court or the Board of Immigration Appeals (BIA) for further consideration of the asylum application.
9. As a direct result of these challenged policies and practices, Plaintiffs and the class have been or will be unlawfully deprived of timely, adequate notice of clock determinations and a meaningful opportunity to remedy these determinations. Plaintiffs and the subclasses have been or will be unlawfully denied work authorization due solely to an improper determination regarding the asylum EAD clock. In all cases, Plaintiffs and the class and subclasses have actively pursued their asylum applications beyond the 180-day waiting period excluding any periods of applicant-caused delay. In some cases, their asylum EAD clocks have been erroneously “permanently stopped.”
10. In August 2011, the U.S. Citizenship and Immigration Services’ (USCIS) Ombudsman issued recommendations acknowledging the existence of systemic asylum EAD clock problems, including the lack of a mechanism for an applicant to acquire accurate information about his or her asylum EAD clock and the lack of a standard procedure for correcting errors in the asylum EAD clock. See U.S. Citizenship and Immigration Services Ombudsman, Employment Authorization for Asylum Applicants: Recommendations to Improve Coordination and Communication (Aug. 26, 2011), available at http://www.dhs.gov/xlibrary/assets/cisomb-employment-authorization-forasylum-08262011.pdf [hereinafter USCIS Ombudsman Report]. Undersigned counsel and other organizations throughout the country have repeatedly requested that Defendants remedy their unlawful policies and practices. To date, however, Defendants have failed to do so.
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JURISDICTION AND VENUE 11. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. § 1331, as a civil action arising under the Constitution and laws of the United States, and 5 U.S.C. § 701, et seq., as an action to set aside unlawful agency action or compel agency action unlawfully withheld or unreasonably delayed. Declaratory judgment is sought pursuant to 28 U.S.C. §§ 2201-02. 12. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(e)(1), (2) and (3) because Defendants are U.S. agencies and officers of the United States or agencies thereof acting in their official capacities. A substantial part of the events or omissions giving rise to the claims occurred in this district, Plaintiff B.H. resides in this district, and no real property is involved in this action.
PARTIES 13. Plaintiffs are all noncitizens in the United States who have been placed in removal proceedings, have filed complete Applications for Asylum and Withholding of Removal (Form I-589 or “asylum application”), have filed or will file an application for employment authorization (Form I-765) pursuant to 8 C.F.R. § 274a.12(c)(8), and would be eligible for employment authorization but for Defendants’ unlawful policies and practices. 14. Plaintiff B.H. is a citizen of Indonesia who resides in Seattle, Washington. 15. Plaintiff A.S.D. is a citizen of Mauritania who resides in Chicago, Illinois. 16. Plaintiff M.A. is a citizen of Libya who resides in Jersey City, New Jersey. 17. Plaintiff M.F. is a citizen of Guinea who resides in New York, New York. 18. Plaintiff H.L. is a citizen of China who resides in San Gabriel, California.
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19. Plaintiff L.M.M.M. is a citizen of Colombia who resides in New York, New York.
20. Plaintiff B.M. is a citizen of Serbia who resides in Elmhurst, New York. 21. Plaintiff G.K. is a citizen of India who resides in Muttontown, New York. 22. Plaintiff L.K.G. is a citizen of Eritrea who resides in Dallas, Texas. 23. Plaintiff D.W. is a citizen of China who resides in Alhambra, California. 24. Defendant U.S. Citizenship and Immigration Services (USCIS), an agency of the Department of Homeland Security (DHS), is responsible for the timely and accurate processing and adjudication of applications for employment authorization. In making determinations to grant or deny applications for employment authorization, USCIS is responsible for the accurate calculation of the asylum EAD clock and for determining whether there has been delay requested or caused by the applicant for purposes of the asylum EAD clock. 25. Defendant Alejandro Mayorkas is the Director of USCIS and has ultimate responsibility for the timely and accurate processing and adjudication of applications for employment authorization and for the accurate calculation of the asylum EAD clock. He is sued in his official capacity. 26. Defendant Janet Napolitano is the Secretary of DHS and has ultimate responsibility for the administration and enforcement of the INA and all other laws relating to the immigration of noncitizens. She is sued in her official capacity. 27. Defendant Executive Office for Immigration Review (EOIR) is a component agency of the Department of Justice responsible for conducting removal hearings of noncitizens, i.e., proceedings to remove or deport them from the United
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States. Asylum applications are filed with EOIR, in the immigration court having jurisdiction over the case, when an applicant has been placed in removal proceedings. With respect to asylum cases over which it has jurisdiction, EOIR has responsibility for the accurate calculation of the asylum EAD clock and for determining whether there has been delay requested or caused by the applicant for purposes of the asylum EAD clock.
28. Defendant Eric H. Holder, Jr. is the Attorney General of the United States and is responsible for the Department of Justice and its component agencies, including EOIR. Under delegated authority from the Attorney General, EOIR administers the U.S. immigration court system. Attorney General Holder is sued in his official capacity.
29. Defendant Juan Osuna is the Director of EOIR and has ultimate responsibility for overseeing immigration court proceedings, appellate reviews, and administrative hearings. He is sued in his official capacity.
LEGAL AND FACTUAL BACKGROUND Asylum Application Process
30. Any noncitizen who is in the United States or seeking admission at a port of entry may apply for asylum. 8 U.S.C. § 1158(a)(1). An asylum applicant must demonstrate either past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B)(i). With limited exceptions, an asylum application must be filed within one year of an applicant’s arrival in the United States. 8 U.S.C. § 1158(a)(2)(B).
31. Generally, an asylum application must be adjudicated within 180 days after it is filed. USCIS and EOIR are jointly responsible for calculating this 180-day
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period. 8 C.F.R. §§ 208.7(a)(2), 1208.7(a)(2). Delay requested or caused by the applicant will toll this period. Id. For asylum applications heard during removal proceedings, EOIR has adopted an asylum adjudications clock to track the 180-day waiting period.
32. Noncitizens who are not in removal proceedings may file “affirmative” asylum applications with USCIS. They must attend an interview with a USCIS asylum officer, who may grant, deny, refer, or dismiss the application. 8 C.F.R. §§ 208.9(b), 208.14(c), 1208.9(b), and 1208.14(c).
33. In some cases, after a noncitizen files an “affirmative” asylum application, an asylum officer may “refer” the case to EOIR, thus initiating removal proceedings. 8 C.F.R. §§ 208.14(c), 1208.14(c). The asylum application is then considered a “defensive” asylum application. A referral to an immigration judge is not a final decision in the case and does not constitute a denial of the asylum application. Id. Instead, an immigration judge reviews the previously filed asylum application de novo without the applicant having to file a new asylum application.
34. In other defensive cases, the noncitizen will file the application directly with EOIR. In these cases, the regulations require that the asylum application be filed with the “immigration court.” 8 C.F.R. § 1208.4(b)(3). Unlike other applications and pleadings which may be filed with the immigration court at any time, EOIR’s subregulatory policy and practice permits asylum applications to be filed only at a hearing before an immigration judge. Memorandum from Chief Immigration Judge, Brian O’Leary, Operating Policies and Procedures Memorandum 11-02: The Asylum Clock (Nov, 15, 2011) 5-6, available at http://www.justice.gov/eoir/efoia/ocij/oppm11/11-
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02.pdf [hereinafter OPPM 11-02]. This precludes the asylum EAD clock from starting until the date of such a hearing even though a complete asylum application has been filed with the immigration court. This policy and practice is inconsistent with the statutory and regulatory framework, under which the waiting period should begin when a complete asylum application is filed with the immigration court.
35. All defensive asylum applications are adjudicated by immigration judges following a staggered series of hearings, which — due to EOIR’s case management policies, compounded by congested court calendars — generally span months and often years after the initial hearing. 8 C.F.R. §§ 208.14(a), 1208.14(a). If the immigration judge denies an asylum application, the applicant may appeal to the BIA. 8 U.S.C. § 1158(d)(5)(A)(iv). If the BIA affirms the denial, the applicant may appeal to the relevant federal court of appeals. 8 U.S.C. § 1252(a). EAD Application Process for Applicants in Removal Proceedings
36. The INA authorizes DHS to adopt regulations authorizing employment for asylum applicants. 8 U.S.C. § 1158(d)(2). While regulations prescribe that USCIS has discretion to grant or deny EAD applications to well over a dozen categories of immigrants and nonimmigrants, the regulations afford USCIS no such discretion with respect to EAD applications filed by asylum applicants. See 8 C.F.R. § 274a.13(a)(1) and (2). Thus, an asylum applicant who has met the regulatory requirements has a right to work authorization. Id.
37. The only regulatory eligibility requirements for an EAD are that the asylum applicant is not an aggravated felon; that the applicant has filed a complete asylum application; that the asylum application has not been denied at the time the EAD
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application is decided; and that, absent exceptional circumstances, the asylum applicant has not failed to appear for an interview or hearing. 8 C.F.R. §§ 208.7(a), 1208.7(a). An asylum application is complete for purposes of the 180-day asylum EAD clock when it contains answers to all of the questions on the application form, is signed, and is accompanied by the materials specified in the regulations and the instructions to the application form. 8 C.F.R. §§ 208.3(c)(3), 1208.3(c)(3). If a defensive asylum application is not adjudicated by an immigration judge within 180 days of its filing (not including periods of applicant-caused delay), an applicant who has satisfied these eligibility requirements has a right to an EAD.
38. USCIS is responsible for deciding all EAD applications for asylum applicants, including those in removal proceedings. An application for employment authorization, Form I-765, may be filed with USCIS at any time after the first 150 days of the waiting period for an EAD. 8 C.F.R. § 208.7.
39. Defendants have adopted regulatory requirements governing USCIS adjudication of EAD applications filed by asylum applicants. 8 C.F.R. §§ 103.2, 103.3, 208.7, 274a.12(c)(8), 274a.13(a), and 1208.7. These regulations require, inter alia, that the EAD decision be based on the record of the proceeding that constitutes the basis for the decision; that the information in the record be disclosed to the applicant; that the applicant be advised of derogatory information and offered an opportunity to rebut such information and present information on his or her own behalf prior to the decision; and that, if the application is denied, the applicant be notified in writing of the specific reasons for the denial. 8 C.F.R. §§ 103.2(b)(16) and 103.3(a)(1).
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40. When an asylum applicant is in removal proceedings, EOIR’s calculations regarding the asylum adjudications clock, which tracks the 180-day statutory timetable for adjudication of asylum cases, are applied by both Defendant agencies to the asylum EAD clock.
41. Once an EAD has been granted, the applicant remains eligible to renew it throughout the adjudication of the asylum application, including administrative and judicial appeals. 8 C.F.R. §§ 208.7(b)(1), 1208.7(b)(1). The Asylum EAD Clock
42. For both affirmative and defensive asylum applicants, the 180-day asylum EAD clock begins to run on the date the applicant files a complete asylum application. 8 C.F.R. §§ 208.7(a)(1), 1208.7(a)(1), 208.3-4, 1208.3-4.
43. The asylum EAD clock continues to run except for any period of “delay requested or caused by the applicant,” 8 C.F.R. § 208.7(a)(2), 8 C.F.R. § 1208.7(a)(2), or unless the asylum application is denied before the EAD application is adjudicated. 8 C.F.R. §§ 208.7(a)(1); 1208.7(a)(1). Applicant-caused delays include an applicant’s “failure without good cause to follow the requirements for fingerprint processing,” and any period during which an asylum applicant fails to appear to receive and acknowledge receipt of a USCIS asylum officer’s decision. 8 C.F.R. §§ 208.7(a)(2), 208.9(d), 1208.7(a)(2), 1208.9(d).
44. Defendants USCIS and EOIR are jointly responsible for calculating the 180-day waiting period for EAD eligibility for asylum applicants. 8 C.F.R. §§ 208.7(a)(2), 1208.7(a)(2). For EAD applications filed in connection with affirmative asylum cases, USCIS tracks the 180-day period and relies upon its own calculations to
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decide if this waiting period is satisfied when it decides an EAD application. In contrast, for EAD applications filed in connection with defensive asylum applications – whether referred from USCIS or filed directly with the immigration court – USCIS relies upon EOIR’s calculation of the 180-day waiting period.
45. Defendant EOIR purports to administer an asylum clock only to track the statutory 180-day adjudication period and not to track the 180-day period for EAD eligibility for asylum applicants. Contrary to this, in a practice manual published by EOIR for parties who appear before the immigration courts, EOIR explains the “asylum clock” as follows:
(l) Asylum Clock. — Certain asylum applicants are eligible to receive employment authorization from the Department of Homeland Security (DHS) 180 days after the application is filed, not including delays in the proceedings caused by the applicant. The “asylum clock” tracks the number of days since the application was filed, not including any such delays. See 8 C.F.R. § 1208.7. See Immigration Court Practice Manual at § 4.15(l), available at http://www.justice.gov/eoir/vll/OCIJPracManual/Chap%204.pdf (accessed May 29, 2012). 46. Because the same applicant-requested or caused delay regulation applies to both 180-day periods, EOIR’s asylum adjudication clock is, de facto, an asylum EAD clock and is relied upon by Defendant USCIS for this purpose. Moreover, USCIS has stated as much, confirming that its policy is to rely on EOIR’s 180-day asylum clock in making determinations about employment authorization and further confirming its position that it has no authority or ability to alter EOIR’s asylum clock determinations.
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47. Immigration courts across the country are overwhelmed with their caseloads and are under intense pressure to meet their own statutory 180-day adjudication deadline. EOIR evaluates immigration judges based on their ability to meet this case completion requirement and holds them accountable for the length of time asylum applications are pending on their dockets. By creating the applicant-caused delay regulatory and sub-regulatory exemptions to the 180-day statutory adjudication period, EOIR limits its own accountability for adjudication delays. However, since Defendants use EOIR’s 180-day clock to make determinations about employment authorization, these exemptions, related solely to EOIR’s caseload management, are applied to systematically disqualify applicants from work authorization. See, e.g., paragraphs 55-57 below regarding the challenged Hearing Policy and Practice.
48. When an immigration judge adjourns a case, the reason must be entered into EOIR’s database using a specific adjournment code. OPPM 11-02 at 7. Certain adjournment codes are intended to reflect “applicant-caused delay.” An immigration judge’s entry of an adjournment code that is intended to reflect applicant-caused delay will automatically toll the 180-day EAD waiting period. The asylum EAD clock will remain tolled until Defendant EOIR makes another entry in the EOIR database that indicates that the clock has resumed.
49. EOIR’s Operating Policies and Procedures Memoranda (OPPMs) reiterate that only applicant-caused delays prevent the asylum clock from running and that, in such circumstances, the clock is stopped only for the number of days during which the delay continues. OPPM 11-02 at 7-10; Memorandum from Office of the Chief Immigration Judge, Operating Policies and Procedures Memorandum (OPPM) 05-07: Definitions and
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Use of Adjournment, Call-up and Case Identification Codes, available at http://www.justice.gov/eoir/efoia/ocij/oppm05/05-07.pdf. Defendants’ Unlawful Policies and Practices
50. Plaintiffs and class members challenge five specific sets of policies and practices that Defendants have adopted with respect to the asylum EAD clock. For convenience, these are identified as “Notice and Review Policy and Practice,” “Missed Asylum Interview Policy and Practice,” “Hearing Policy and Practice,” “Prolonged Tolling Policy and Practice,” and “Remand Policy and Practice.” These policies and practices conflict with the U.S. Constitution, the INA, governing regulations, and the Administrative Procedure Act (APA).
51. Notice and Review Policy and Practice. Defendants’ decisions to stop or not start or restart the asylum EAD clock are made without written notice or explanation and often off the record. While EOIR’s most recent operating guidance indicates that an immigration judge should state on the record the reason why a case is being adjourned, OPPM 11-02, the judge is not required to inform the asylum applicant if the adjournment will stop or not start or restart the asylum EAD clock. Applicants often do not learn of asylum EAD clock determinations unless and until they inquire about the status of their asylum EAD clocks or after their applications for work authorization have been denied. They also are not informed of the reasons that the asylum EAD clock was stopped or not started or restarted unless they make a specific inquiry. The written decisions from USCIS denying EAD applications do not include this information on any routine or systematic basis nor do they provide adequate notice of how USCIS calculated the applicant’s EAD ineligibility or of derogatory evidence USCIS relied upon for such
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purposes. Moreover, Plaintiffs do not have a meaningful opportunity to contest or remedy improper asylum EAD clock determinations nor is there any administrative mechanism to compel Defendants to issue work authorization after the 180-day waiting period has expired.
52. The USCIS Ombudsman recognized that the lack of a mechanism for asylum seekers to acquire accurate information about the amount of time accrued on their asylum EAD clocks creates confusion about employment eligibility. See USCIS Ombudsman Report at 1, 5-6.
53. To contest a miscalculation of the asylum EAD clock, applicants must resort to an informal review process that is inadequate to timely remedy legal and factual errors. The USCIS Ombudsman has recognized the problems created by the lack of any standard procedure for correcting errors relating to asylum EAD clock determinations, which prevent Plaintiffs from establishing their eligibility for work authorization:
Ensuring that a delay is correctly identified as attributable either to the applicant or to the Federal Government is critical. Problems occur when delays are incorrectly attributed to the asylum applicant in circumstances that are actually caused by EOIR or USCIS. Additionally, when a delay that was caused by or requested by the applicant comes to an end, there is no easy way for the applicant to work with the Federal Government to restart the clock. Id. at 2. The recent OPPM from Defendant EOIR merely reiterates the existing procedure and does not resolve these problems. OPPM 11-02. 54. By failing to provide applicants with legally sufficient notice of decisions on their asylum EAD clocks and an adequate opportunity to challenge improper asylum EAD clock determinations, Defendants violate their rights under the Due Process Clause of the Fifth Amendment and the APA. Additionally, Defendant USCIS relies upon
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Defendant EOIR’s information about the asylum EAD clock, but does not disclose this information to an asylum applicant when it denies the applicant’s EAD application; does not provide the applicant with an opportunity to rebut derogatory information or present information on his or her own behalf; and/or does not provide specific notice to the applicant about the reasons for the denial.
55. Hearing Policy and Practice. Defendants have a nationwide policy and practice of starting the asylum EAD clock only at a hearing before an immigration judge. OPPM 11-02 at 11. Consequently, even when an asylum applicant has filed a complete asylum application with the “immigration court,” as the regulations require, the asylum EAD clock will not start until the applicant’s next court appearance, which – due to EOIR’s case management policies and court backlogs – may be many months and often more than a year after the applicant filed the asylum application. In many cases, individuals who would otherwise file a complete asylum application prior to a hearing before an immigration judge are deterred by Defendants’ Hearing Policy and Practice.
56. Defendants’ Hearing Policy and Practice, articulated in OPPM 11-02 and EOIR’s Immigration Court Practice Manual Chapter 3 (2009), at 3.1(b)(iii)(A), is binding on all EOIR personnel, including immigration judges, who must enter an adjournment code in the EOIR database in accord with this policy and practice. Defendant USCIS relies upon these entries by immigration judges in the database when it determines whether the 180-day waiting period for EAD eligibility has been met for purposes of deciding an EAD application.
57. By refusing to start the asylum EAD clocks of applicants who have filed complete asylum applications until the next court hearing, Defendants unlawfully prevent
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applicants from accruing time towards the 180-day waiting period for purposes of employment eligibility. This illustrates a conflict in the system by which Defendants have chosen to implement the EOIR adjudication mandate at the expense of applicants’ asylum EAD clocks.
58. Prolonged Tolling Policy and Practice. Defendants have a nationwide policy and practice of starting or restarting the asylum EAD clock of an applicant in removal proceedings only at a hearing before an immigration judge. Due to EOIR’s case management policies and congested immigration court dockets nationwide, hearing dates are not scheduled within reasonable or predictable time frames. Instead, hearings can be scheduled up to three years in the future. In cases in which an asylum applicant initially caused a “delay,” for example by requesting a continuance to retain an attorney, the attributed delay often will be resolved well before the next hearing. Even when this happens, however, Defendants’ Prolonged Tolling Policy and Practice prevents the applicant’s asylum EAD clock from restarting until the next hearing, however far in the future that might be. As a consequence, a delay initially caused or requested by the applicant is prolonged due to EOIR’s case management practices and congested court dockets, causes unrelated to and beyond the control of the applicant.
59. Because this policy and practice prohibits an asylum EAD clock from starting or restarting between hearings, an applicant’s only potential remedy for correcting an improperly stopped asylum EAD clock is to file a motion to advance the hearing date with the immigration court. However, both the EOIR case management practices and the congested court dockets make it unlikely that the immigration court will agree to advance a hearing date. EOIR’s policy and practice is to “disfavor” motions to
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advance hearing dates. See Immigration Court Practice Manual, § 5.10(b). EOIR publicly suggests that such motions are appropriate only in extreme situations. Id. As a consequence, a motion to advance a hearing date is not a viable alternative in the vast majority of cases in which hearing dates are set far out in the future.
60. By refusing to start or restart an asylum EAD clock at the time that an applicant cures his or her attributed delay and instead suspending the asylum EAD clock until a hearing can be scheduled, up to three years later, Defendants’ Prolonged Tolling Policy and Practice unlawfully prevents applicants from accruing time for purposes of employment eligibility.
61. Missed Asylum Interview Policy and Practice. Defendants have a nationwide policy and practice of indefinitely – and often permanently – stopping the asylum EAD clock when an applicant misses an interview with the USCIS asylum office and the case is referred to EOIR immigration court for removal proceedings. Generally, an applicant’s failure to appear at an asylum interview will constitute applicant-caused delay which will stop the asylum EAD clock. Under 8 C.F.R. §§ 208.7(a) and 1208.7(a), the asylum EAD clock should restart when, following USCIS’ referral of the case to EOIR for removal proceedings, the applicant appears at a hearing before the immigration judge. At that point in time, there no longer is an applicant-caused delay in the case and thus no basis under the regulations for the asylum EAD clock to remain stopped.
62. Contrary to the regulations, Defendants’ policies and practices do not allow the asylum EAD clock to restart at the first immigration court hearing following referral. Instead, Defendants’ policies and practices confuse the issue of eligibility for an EAD, which is determined at the time that the EAD application is adjudicated, with that
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of the calculation of the 180-day waiting period for an EAD. A failure to appear at an asylum interview may cause an applicant to be ineligible for an EAD if he or she cannot demonstrate that exceptional circumstances caused the failure to appear. 8 C.F.R. §§ 208.7(a)(4) and 1208.(7)(a)(4). This is a determination that, ultimately, must be decided at the time that an EAD application is adjudicated. Nothing in the regulations ties this determination to whether an applicant has satisfied the independent requirement that the application have been pending for 180 days.
63. Defendant EOIR’s policy and practice is that it has no authority to restart the asylum EAD clock in these referred cases. OPPM 11-02 at 5, 8. Instead, its position is that only USCIS can restart the asylum EAD clock. In turn, USCIS’ policy and practice is that it has no authority to restart the clock once a case has been referred to EOIR. As a result, absent termination of removal proceedings by the immigration judge with a remand to USCIS – over which decision the applicant has no control – neither USCIS nor EOIR will restart the applicant’s asylum EAD clock. Thus, in the vast majority of these cases, the clock remains stopped throughout the entire time that the applicant’s asylum application is pending before the immigration judge.
64. Defendants’ Missed Asylum Interview Policy and Practice unlawfully prevents applicants from accruing time for purposes of employment eligibility by failing to allow an applicant’s asylum EAD clock to restart at the first immigration court hearing following referral of the case due to a missed asylum office interview.
65. Remand Policy and Practice. Defendants have a nationwide policy and practice of not starting or restarting the asylum EAD clock after a previously denied asylum case has been remanded for adjudication. OPPM 11-2 at 16. The asylum EAD
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clock stops running when an asylum application is denied before an EAD has been issued. 8 C.F.R. §§ 208.7(a)(1), 1208.7(a)(1). However, when, upon appeal to either the BIA or a federal appeals court, the asylum case is remanded for further adjudication of the asylum application, the denial necessarily is vacated. Because there no longer is a denial of the asylum application when a remand order is entered, there also no longer is a basis under the statute and regulations for the asylum EAD clock to remain stopped. Instead, the asylum EAD clock should start or restart as of the point at which it had previously stopped. In violation of the statute and regulations, however, Defendants’ policy and practice is to permanently stop the asylum EAD clock upon the denial of an EAD application and to refuse to start or restart it upon a remand.
66. Defendants’ Remand Policy and Practice, articulated in OPPM 11-02, is binding on all EOIR personnel, including immigration judges, and thus adversely impacts asylum EAD clock determinations. Defendant USCIS relies upon EOIR’s determinations of the asylum EAD clock, as reflected in the EOIR database, when it determines whether the 180-day waiting period for EAD eligibility has been met for purposes of deciding an EAD application.
67. By refusing to start or restart the asylum EAD clocks of applicants whose asylum cases have been remanded for further adjudication, Defendants’ Remand Policy and Practice unlawfully prevents applicants from accruing time for purposes of employment eligibility. Application of Defendants’ Policies and Practices to Plaintiffs Hearing subclass Plaintiff
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68. B.H. Plaintiff B.H. first arrived in the United States on March 24, 2011, after fleeing Indonesia to escape past persecution and threats of future persecution due to his Chinese ethnicity and Christian religious beliefs. He applied for asylum within one year of his entry into the United States. The USCIS asylum office denied that application. Because he was in legal status when his application was denied, USCIS did not refer his case to the EOIR immigration court for removal proceedings.
69. Mr. B.H. subsequently fell out of status and was apprehended by DHS and placed in removal proceedings. His prior counsel failed to advise him regarding the time and date for his hearing, so he received an in absentia removal order. On the joint motion of DHS and B.H., the case was reopened and venue was changed to Seattle. B.H.’s first hearing in Seattle was scheduled for September 28, 2011, at which time Mr. B.H. intended to file his asylum application. At the last minute, the Seattle immigration court postponed this hearing to March 22, 2012.
70. Mr. B.H. filed his complete asylum application with the court clerk on September 28, 2011 without waiting for his rescheduled hearing. The immigration court stamped his application as “lodged but not filed.” Mr. B.H. did not receive notice from the Defendants that his asylum EAD clock did not start when he filed his asylum application with the immigration court.
71. At the rescheduled hearing on March 22, 2012, the immigration judge asked Mr. B.H., through counsel, whether he wanted an expedited or non-expedited hearing. The immigration judge said nothing about the asylum EAD clock. His attorney responded that Mr. B.H. did not need an expedited hearing. Had counsel been informed
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that the asylum EAD clock would stop if he did not accept an expedited hearing date, he would have taken the expedited date.
72. Mr. B.H. applied to USCIS for an EAD on March 5, 2012, by which date his asylum application had been pending for more than 150 days, exclusive of any applicant-caused delay.
73. Due to Defendants’ policy and practice of requiring a defensive asylum application to be filed only in open court at a hearing and due to the absence of legally sufficient procedures through which Mr. B.H. can address this issue, his asylum EAD clock never started. Due to the lack of proper notice about the impact of declining an “expedited” hearing, Mr. B.H.’s clock did not start at his first hearing following the filing of his asylum application. Mr. B.H.’s EAD application was improperly denied on May 1, 2012.
74. Without an EAD, Mr. B.H. has suffered physically and mentally as a result of this stress. He fears that he will not be able to send money to his parents, who depend on him for financial help.
75. Under Defendants’ policies and practices, Mr. B.H.’s asylum EAD clock will remain stopped until May 16, 2013, the date of the merits hearing on his asylum application. But for Defendant’s Hearing Policy and Practice and Notice and Review Policy and Practice, Mr. B.H. would be eligible for an EAD at this time. Prolonged Tolling subclass Plaintiffs
76. M.A. Plaintiff M.A. first arrived in the United States on September 30, 2010, after fleeing Libya to escape past persecution and threats of future persecution as a
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member of the minority Toubou tribe who had worked to restore Libyan citizenship to Toubou people born in Libya.
77. Mr. M.A. filed a complete asylum application with the Newark, New Jersey immigration court on September 28, 2011 at his initial master calendar hearing.
78. At the hearing, counsel for Mr. M.A. requested an expedited hearing date as counsel and Mr. M.A. were prepared to more forward with the case quickly. The immigration judge offered Mr. M.A. an expedited hearing date but stated that no additional supporting evidentiary documents could be submitted if Mr. M.A. accepted the expedited hearing date.
79. Mr. M.A. needed to submit evidence documenting the significant changes that recently had occurred in Libya, including a regime change, in support of his asylum application. His counsel would have been able to submit the additional documents within several days following the master calendar hearing. Accepting the expedited hearing date without being afforded an opportunity to submit additional evidence would have compromised Mr. M.A.’s asylum case. Because of the restriction on additional evidence imposed by the immigration judge, Mr. M.A. did not accept the expedited hearing date. Consequently, the immigration judge scheduled Mr. M.A.’s next hearing for February 5, 2013.
80. Mr. M.A.’s counsel asked the immigration judge during the hearing to start Mr. M.A.’s asylum EAD clock because he had a legitimate reason not to accept the expedited hearing date. The judge declined to do so. Subsequently, his counsel did not request that the court administrator or immigration judge correct the asylum clock because she was aware that it was the immigration court’s policy to stop the asylum EAD
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clock until the next hearing. Any attempt to restart the clock before the next hearing would have been futile.
81. Because counsel knew that Mr. M.A.’s clock had not accumulated any days, she did not have him file an application for an EAD subsequent to filing his complete asylum application. With his asylum EAD clock set at zero days, it would have been futile for Mr. M.A. to apply for an EAD.
82. Without an EAD, Mr. M.A. has had financial difficulties. He is afraid to work without authorization and depends on the generosity of friends who house and feed him. Mr. M.A. suffers from anxiety due to his inability to work and generally feels helpless and trapped. Mr. M.A. does not have medical insurance.
83. Mr. M.A.’s asylum EAD clock is stopped at zero days. Mr. M.A.’s next hearing – on the merits of his asylum application – is scheduled for February 5, 2012. Under Defendants’ Prolonged Tolling Policy and Practice, Mr. M.A.’s asylum EAD clock will remain stopped throughout the entire period that his asylum application is pending before the immigration judge. But for Defendant’s Prolonged Tolling Policy and Practice, Mr. M.A. would have been eligible for an EAD at this time.
84. A.S.D. Plaintiff A.S.D. arrived in the United States on September 8, 2010 with her husband and two-year-old daughter after fleeing persecution and threats of future persecution due to her membership in a particular social group, victims of female genital mutilation who fear that their daughters will be subject to this practice.
85. Ms. A.S.D. filed a complete asylum application with USCIS’ Chicago asylum office on June 28, 2011. On August, 10, 2011, the asylum office referred Ms. A.S.D.’s asylum application to the Chicago immigration court. The initial hearing took
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place on August 31, 2011 at which time the immigration judge offered a choice of two subsequent hearing dates: an expedited date on September 20, 2011 or a regular hearing date nearly two years later on June 4, 2013.
86. The immigration judge did not explain the asylum EAD consequences of a decision to not accept an expedited hearing date. Not understanding these consequences, Ms. A.S.D. did not choose the expedited hearing date. Had she understood that her asylum EAD clock would be stopped because of this choice, she would have chosen the expedited date. Ms. A.S.D. subsequently authorized her attorney to seek an earlier hearing date.
87. On September 1, 2011, counsel submitted a Motion to Recalendar the Individual Hearing, requesting that the court reschedule the hearing for the originally offered date, September 20, 2011, or any time prior to June 4, 2013. The immigration judge denied this motion without explanation. On January 5, 2012, counsel again submitted a Motion to Recalendar, requesting an earlier court date. The immigration court also denied this motion, finding that although there was good cause for it, there were no earlier available dates.
88. Ms. A.S.D.’s clock is currently stopped at 64 days. But for Defendants’ Prolonged Tolling Policy and Practice, Ms. A.S.D. would have accrued more than 180 days on her asylum EAD clock and been eligible for a renewal of her EAD when she applied for one on or about January 20, 2012. Instead, on or about March 30, 2012, USCIS denied Ms. A.S.D.’s EAD application.
89. Without authorization to work, A.S.D. has no ability to support herself or her two children, one of whom lives in the United States. She depends on her cousin to
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provide food, clothing, educational opportunities and shelter to her and her family. Her cousin has his own family to support and has difficulty stretching one paycheck to cover the needs of two families. Missed Asylum Interview subclass Plaintiffs
90. M.F. Plaintiff M.F. arrived in the United States on or about December 25, 1999, at the age of thirteen, after fleeing Guinea to escape past persecution and threats of future persecution based upon forced circumcision when she was nine years old and to avoid a forced marriage to an older cousin with two wives.
91. In December 2002, with the help of her uncle, Ms. M.F. filed a complete asylum application with the Newark, New Jersey USCIS asylum office. She was 16 at the time, not yet fluent in English and unable to understand the asylum application process. As a result of these circumstances, she was not aware of the asylum office interview scheduled in November 2003 and thus did not attend.
92. USCIS stopped Ms. M.F.’s asylum EAD clock in 2003 when she missed the asylum office interview. Since then, Ms. M.F.’s asylum EAD clock has never restarted but remains permanently stopped at 87 days.
93. After she missed the interview, the asylum office referred her case to the EOIR immigration court for removal proceedings. Ms. M.F. was not aware that her case had been referred. As a result, she missed the initial master calendar hearing and the immigration judge issued an in absentia order of removal against her on or about January 13, 2004.
94. In 2011, Ms. M.F. retained an attorney who moved to reopen her removal proceedings, explaining the circumstances behind her having missed both the asylum
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office interview and the immigration court hearing. In response, DHS notified the immigration court that it did not oppose this motion. The immigration court reopened her removal proceedings on April 15, 2011.
95. At a subsequent master calendar hearing, Ms. M.F. asked the immigration judge to either restart her asylum EAD clock or remand her case to the USCIS asylum office. DHS opposed a remand to the asylum office, and the immigration court denied the remand request and ruled that the rules prohibited EOIR from restarting the clock.
96. In November 2011, Ms. M.F.’s attorney submitted a written request asking the immigration court administrator to restart the clock. When this was unsuccessful, she submitted a written request to USCIS to restart the clock, explaining the exceptional circumstances of the case. She never received a reply from USCIS.
97. Ms. M.F.’s merits hearing on her asylum application is scheduled to take place on June 27, 2013. Under Defendants’ Missed Asylum Interview Policy and Practice, Ms. M.F.’s asylum EAD clock will remain permanently stopped until that date.
98. Ms. M.F. applied for an EAD on May 16, 2012. But for Defendants’ Missed Asylum Interview Policy and Practice, Ms. M.F. would have accrued more than 180 days on her asylum EAD clock at this time. Because her asylum EAD clock has been permanently stopped at 87 days under the Missed Asylum Interview Policy and Practice, Ms. M.F.’s EAD application will be denied by USCIS.
99. The uncle who first assisted Ms. M.F. with her asylum application has died. She is estranged from the remainder of her family. When she fled Guinea at age 13, her family had planned an arranged marriage for her. Her family has shunned her for avoiding this marriage. She depends on the help of friends and strangers for food and
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shelter. Ms. M.F. graduated from high school, speaks fluent English, and hopes to obtain a bachelor’s degree. She has not been able to continue her education because she cannot afford the tuition.
100. H.L. Plaintiff H.L. arrived in the United States on or about April 16, 2010, after fleeing China to escape past persecution and threats of future persecution due to her practice of Christianity.
101. On February 24, 2011, Ms. H.L. filed a complete asylum application with USCIS. She appeared at the USCIS asylum office in Los Angeles on March 21, 2011 for her asylum interview. Because Ms. H.L. was ill, the asylum officer rescheduled the interview for April 11, 2011. Ms. H.L. was unable to locate a qualified interpreter to accompany her to the rescheduled interview. Consequently, four days prior to the rescheduled interview, her attorney faxed the Los Angeles USCIS asylum office a request to reschedule the interview a second time for this reason.
102. The Los Angeles USCIS asylum office did not reschedule Ms. H.L.’s asylum interview as she requested on April 7, 2011. Instead, on May 24, 2011, it referred her case to the Los Angeles immigration court and issued a Notice to Appear initiating removal proceedings. The Los Angeles USCIS asylum office also stopped Ms. H.L.’s asylum EAD clock on March 21, 2011, the date it initially postponed her interview due to her illness. Since that date, Ms. H.L.’s asylum EAD clock has never restarted but remains permanently stopped at 25 days.
103. The Notice to Appear indicated that her first hearing would be July 7, 2011. For reasons not attributable to Ms. H.L., the immigration court subsequently reset this hearing to November 3, 2011.
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104. On September 26, 2011, after learning that her asylum EAD clock had been permanently stopped, Ms. H.L.’s attorney sent a letter to the Court Administrator of the Los Angeles immigration court requesting that her asylum EAD clock be restarted. The Administrator responded by phone, referring him to USCIS. At the next hearing, her attorney asked the immigration judge to start the clock. Although the immigration judge indicated that she could start it as of the hearing date, Ms. H.L.’s asylum EAD clock has never been restarted.
105. On or about December 19, 2011, her attorney filed a request to restart her asylum EAD clock with the USCIS asylum office. After her attorney made two written follow-up requests, a USCIS officer indicated that she would contact EOIR to terminate removal proceedings and remand the case for another asylum interview with USCIS. To Ms. H.L.’s knowledge, no action has been taken by either agency to remand her case. Her removal case remains pending and her asylum EAD clock remains permanently stopped at 25 days.
106. The next hearing on Ms. H.L.’s asylum application is set for February 12, 2014. Under Defendants’ Missed Asylum Interview Policy and Practice, Ms. H.L.’s asylum EAD clock will remain permanently stopped throughout this entire period.
107. Ms. H.L applied for an EAD on or about May 17, 2012. But for Defendants’ Missed Asylum Interview Policy and Practice, Ms. H.L. would have accrued more than 180 days on her asylum EAD clock at this time and would be eligible for an EAD. Because her asylum EAD clock has been permanently stopped at 25 days under the Missed Asylum Interview Policy and Practice, Ms. H.L.’s EAD application will be denied by USCIS.
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108. As a result of not having an EAD, Ms. H.L. has had great difficulty supporting herself. She has little extra money for medical care when she is ill.
109. L.M.M.M. Plaintiff L.M.M.M. arrived in the United States on or about May 12, 2008, after fleeing Colombia to escape powerful drug dealers who threatened her entire family with death following her grandson’s cooperation with law enforcement against them.
110. Ms. L.M.M.M. filed a complete asylum application on May 1, 2009 with USCIS. The Rosedale, New York asylum office scheduled an interview for her on June 10, 2009. On June 5, 2009, her attorney notified the asylum office in writing, sent by facsimile, that he had a conflict and asked that the interview be rescheduled. When he had not received a response by June 9, 2009, he called the asylum office and was assured that the interview would be postponed. Consequently, neither Ms. L.M.M.M. nor her attorney attended the interview on June 10, 2009.
111. USCIS permanently stopped Ms. L.M.M.M.’s asylum EAD clock at 28 days on June 10, 2009, when she did not appear for the interview. Thereafter, USCIS referred her case to EOIR’s New York immigration court for removal proceedings. Since then, there have been several hearings in Ms. L.M.M.M.’s case. At a hearing on February 8, 2011, for reasons not attributable to Ms. L.M.M.M., the immigration court set the case over for another hearing on April 4, 2012. Ms. L.M.M.M.’s asylum EAD clock was not restarted at any of these hearings.
112. Ms. L.M.M.M. has been unsuccessful in getting either USCIS or EOIR to restart her asylum EAD clock despite a letter to the New York asylum office, phone calls to both agencies, and a request to the immigration judge at the April 3, 2012 hearing.
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EOIR informed her counsel that it had no authority to restart her clock and that only USCIS’ asylum office could do this. In turn, USCIS advised her counsel that because it had no jurisdiction over her case, it could not restart her clock and that she should ask EOIR to do so.
113. The next hearing on Ms. L.M.M.M.’s asylum application is scheduled for April 16, 2015, three years from the date of her most recent hearing and six years from the date of her missed asylum interview. Under Defendants’ Missed Asylum Interview Policy and Practice, Ms. L.M.M.M.’s asylum EAD clock will remain permanently stopped from now until then.
114. But for Defendants’ Missed Asylum Interview Policy and Practice, Ms. L.M.M.M. would have accrued more than 180 days on her asylum EAD clock at this time. Instead, her asylum EAD clock remains permanently stopped at 28 days. Because her asylum EAD clock is permanently stopped at 28 days, and she has been unsuccessful in getting either Defendant agency to restart it, it would be futile for Ms. L.M.M.M. to apply for an EAD. Were she to do so, the EAD would be denied by USCIS.
115. Ms. L.M.M.M. is eighty-seven years old and will be one month short of ninety at the time of the merits hearing on her asylum application. She suffers from a host of illnesses, including breast cancer, a vertebral body compression deformity, a moderately enlarged heart, high cholesterol, anemia, varicose veins, and gastritis. Because her asylum EAD clock has been stopped and she is unable to obtain an EAD, she is not able to obtain a valid social security number. Without either an EAD or a social security number, it has been difficult for her to verify her eligibility for benefits programs available to people with her health difficulties.
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116. B.M. Plaintiff B.M. arrived in the United States on or about May 17, 2005, after fleeing Serbia to escape past persecution and threats of future persecution based upon his sexual orientation as a gay man.
117. On July 7, 2008, Mr. B.M. filed a complete asylum application with the USCIS asylum office in Rosedale, New York. His asylum interview was scheduled for August 12, 2008. Mr. B.M. missed this interview through no fault of his own. His attorney requested that it be rescheduled.
118. Although the USCIS asylum office initially agreed to reschedule the interview, it never did so. Instead, it referred Mr. B.M.’s case to the New York immigration court and issued a Notice to Appear initiating removal proceedings. Mr. B.M.’s first hearing was held on March 17, 2009.
119. The New York USCIS asylum office stopped Mr. B.M.’s asylum EAD clock at 36 days on August 12, 2008, the date of his missed interview. EOIR did not restart the clock at Mr. B.M.’s first hearing. Moreover, neither USCIS nor EOIR provided Mr. B.M. with an opportunity to demonstrate that exceptional circumstances caused him to miss his asylum interview. As a result, Mr. B.M.’s asylum EAD clock has remained permanently stopped at 36 days since August 2008.
120. On November 19, 2009, after learning that his asylum EAD clock had been permanently stopped, Mr. B.M.’s attorney sent a letter to EOIR’s Chief Immigration Judge requesting that the asylum EAD clock in Mr. B.M.’s case be restarted. On December 18, 2009, EOIR’s Office of the Chief Immigration Judge responded in writing by referring Mr. B.M. to USCIS for resolution of his asylum EAD clock issue.
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121. Mr. B.M.’s attorney followed up with a letter to the USCIS asylum office, asking that it restart Mr. B.M.’s clock. On May 20, 2011, the USCIS asylum office responded by letter indicating that it could not restart the clock because Mr. B.M. had missed his asylum interview.
122. The merits hearing on Mr. B.M.’s asylum application is set for January 25, 2013. By this date, Mr. B.M.’s asylum EAD clock will have been permanently stopped under Defendants’ Missed Asylum Interview Policy and Practice for almost four and one half years.
123. But for Defendants’ Missed Asylum Interview Policy and Practice, Mr. B.M. would have accrued more than 180 days on his asylum EAD clock at this time. Thus, but for the Missed Asylum Interview Policy and Practice, Mr. B.M. would be eligible for an EAD.
124. Mr. B.M. was a dentist in Serbia and had been certified as an orthodontist before he fled that country. Because he does not have employment authorization, he has been unable to become certified to practice dentistry in the U.S. Remand subclass Plaintiffs
125. G.K. Plaintiff G.K. arrived in the United States on April 17, 2001, after fleeing India to escape past persecution and threats of future persecution due to her religion and political opinion.
126. She filed a complete asylum application with USCIS on April 18, 2002. USCIS referred her case to the San Francisco immigration court on May 29, 2002. At an October 7, 2002 hearing, the immigration judge denied her application for asylum. At
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that time, her asylum EAD clock was at 172 days. On appeal, the BIA and the Ninth Circuit both affirmed the denial of her asylum application.
127. New counsel filed a motion to reopen the case at the BIA, arguing that prior counsel was ineffective and had prejudiced her case. The BIA denied the motion to reopen, but on appeal the Ninth Circuit granted her petition for review. The court found that former counsel’s failure to effectively document and present the asylum claim rendered the removal proceedings so fundamentally unfair that Ms. G.K. was prevented from reasonably presenting her case. The court remanded the case to the BIA on August 31, 2009.
128. Pursuant to this Ninth Circuit decision, on February 26, 2010, the BIA vacated its denial of Ms. G.K.’s motion to reopen, reopened the removal proceedings, and remanded the case to the immigration judge for further consideration of the asylum application. The immigration judge then scheduled a hearing in her case for April 29, 2013.
129. Ms. G.K. applied for work authorization on December 16, 2011, by which date her complete asylum application had been pending for more than 180 days, exclusive of any period of applicant-caused delay or period of denial. Due to Defendants’ policy of failing to restart an asylum EAD clock following a remand, Ms. G.K.’s asylum EAD clock has remained permanently stopped at 172 days and her EAD application was improperly denied on January 24, 2012.
130. Ms. G.K. never received notice from the immigration court or USCIS that her asylum EAD clock was not restarted following the BIA’s decision to reopen her case
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and remand it to the immigration court. To date, she has been unable to correct the problems with her asylum EAD clock.
131. Without the ability to work, Ms. G.K. has never been able to use the skills she developed as a fashion merchandiser working for an Indian company with international clients, nor her advanced culinary degree. She has long hoped to use her culinary degree as a chef in the United States. Though she has been offered opportunities to work, she has been unable to pursue these opportunities without work authorization.
132. Ms. G.K. lives with her husband and their twelve-year-old daughter and nine-year-old son. Because she is unable to work, the family relies entirely on her husband to provide for them.
133. Due to Defendants’ Remand Policy and Practice, Ms. G.K.’s asylum EAD clock is permanently stopped. But for Defendants’ Remand Policy and Practice, Ms. G.K. would be eligible for an EAD at this time.
134. L.K.G. Plaintiff L.K.G. first arrived in the United States on January 11, 2007, after fleeing Eritrea to escape past persecution and threats of future persecution due to her political opinion. On January 23, 2007, after determining that Ms. L.K.G. credibly feared persecution in her native Eritrea, USCIS issued her a Notice to Appear.
135. Ms. L.K.G. filed a complete asylum application with the Dallas immigration court at her hearing on September 10, 2007, and was denied asylum on October 19, 2007. At the time of this denial, Ms. L.K.G.’s asylum EAD clock was at 39 days. Ms. L.K.G. appealed this decision to the BIA, which dismissed her appeal on August 19, 2008.
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136. On November 19, 2008, after retaining new counsel, Ms. L.K.G. moved to reopen her case before the BIA based on ineffective assistance of former counsel and the existence of previously unavailable material evidence. On May 29, 2009, the BIA granted her motion, reopened her removal proceedings, and remanded the case to the immigration judge for further consideration of the asylum application. She attended her first hearing after remand on August 16, 2010. Her next hearing was then scheduled for April 20, 2011. On March 15, 2011, her attorney sought a continuance of the April 20, 2011 hearing due to a simultaneously scheduled court hearing. The court rescheduled the hearing for October 19, 2011, but later, on its own motion, postponed it until August 20, 2013.
137. Ms. L.K.G. previously applied for and was granted an EAD on December 4, 2008, but this EAD expired on December 11, 2009. Ms. L.K.G. applied to renew her work authorization on or about October 26, 2009. But for Defendants’ Remand Policy and Practice, Ms. L.K.G. would have had more than 180 days on her asylum EAD clock at the time of this October 2009 EAD application and thus would have been eligible for an EAD.
138. Ms. L.K.G.’s EAD application was denied on January 19, 2010. Following this denial, she discovered for the first time that her asylum EAD clock was stopped at 39 days and that none of the period since the BIA remand had been applied to her asylum EAD clock.
139. Without the ability to work, Ms. L.K.G. has relied entirely on the generosity of her cousin, her church and friends to meet her basic needs, including a
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place to stay, food and clothing. In addition, she has had to rely on the generosity of others to pay for over $1,000 of medical expenses.
140. The emotional strain of her situation has caused her to seek counseling at her church, where she receives emotional support.
141. Ms. L.K.G.’s prior work experience involved taking and developing photographs. She is 33 years old and would like to be able to support herself. Because she does not have work authorization, she cannot apply for jobs where she could use her skills.
142. Due to Defendants’ Remand Policy and Practice, Ms. L.K.G.’s asylum EAD clock is permanently stopped at 39 days. But for Defendants’ Remand Policy and Practice, Ms. L.K.G. would be eligible for an EAD at this time.
143. D.W. Plaintiff D.W. first arrived in the United States on September 21, 2002, after fleeing China to escape past persecution and threats of future persecution due to his religion. On February 10, 2003, Mr. D.W. filed a complete asylum application with the Los Angeles Asylum Office. On June 6, 2003, Mr. D.W.’s case was referred by USCIS to the Los Angeles Immigration Court. At the time Mr. D.W.’s asylum application was referred to the immigration court, his asylum clock was at 122 days.
144. Mr. D.W. attended his initial hearing on July 8, 2003. His asylum EAD clock was set at 148 days on this date. Mr. D.W.’s asylum application was denied by an immigration judge on February 24, 2005. Because scheduling delays between July 8, 2003 and February 24, 2005 were at the request of Mr. D.W.’s attorneys, Mr. D.W.’s asylum EAD clock remained at 148 days at the time of the immigration judge’s decision.
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145. Mr. D.W. appealed the immigration judge’s decision to the BIA and the BIA affirmed the denial on May 4, 2006. On August 17, 2007, following a subsequent appeal, the Ninth Circuit granted a joint motion to remand the case to the BIA to consider whether the immigration judge may have misconstrued some of the record evidence in reaching her adverse credibility determination.
146. On March 7, 2008, the BIA remanded Mr. D.W.’s case to the immigration judge for reconsideration of his eligibility for asylum and entry of a new decision. Following this remand, hearings in Mr. D.W.’s case were postponed by the immigration court numerous times, during the period June 26, 2008 to January 26, 2011. None of these postponements were at the request of Mr. D.W. Consequently, but for Defendants’ Remand Policy and Practice, Mr. D.W.’s asylum EAD clock should have exceeded 180 days during this time. His merits hearing is scheduled for September 3, 2013.
147. Mr. D.W. previously applied for and was granted an EAD in 2003. His most recent request to renew his employment authorization, filed on March 28, 2011, was denied on May 24, 2011. Defendants applied their Remand Policy and Practice to Mr. D.W. in reaching this decision and failed to apply any of the time since the remand in his case to his asylum EAD clock.
148. Mr. D.W. had to leave his job after his EAD expired. He initially relied on his savings to pay for food, rent and other expenses. His savings have run out and he now is borrowing money from a friend to pay for all of his living expenses.
149. Mr. D.W. is not sure that he will be able to borrow money to continue to pay for an attorney to represent him in his asylum proceedings.
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150. Due to Defendants’ Remand Policy and Practice, Mr. D.W.’s asylum EAD clock is permanently stopped at 148 days. But for Defendants’ Remand Policy and Practice, Mr. D.W. would be eligible for an EAD at this time.
CLASS ALLEGATIONS 151. Plaintiffs bring this action on behalf of themselves and all other persons who are similarly situated, pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2). A class action is proper because this action involves questions of law and fact common to the class, the class is so numerous that joinder of all members is impractical, the claims of the Plaintiffs are typical of the claims of the class, the Plaintiffs will fairly and adequately protect the interests of the class, and Defendants have acted on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate with respect to the class as a whole. 152. All Plaintiffs seek to represent a “Notice and Review class” consisting of:
All noncitizens in the United States who have filed or will file with Defendants a complete I-589 (Application for Asylum and Withholding of Removal); who have been or will be issued a Notice to Appear or Notice of Referral for removal proceedings; whose applications for employment authorization have been or will be denied; and whose asylum EAD clock determinations have been or will be made without legally sufficient notice or a meaningful opportunity to challenge such determinations. 153. The Notice and Review class is so numerous that joinder of all members is impracticable. Plaintiffs are not aware of the exact number of potential class members because Defendants are in the best position to identify such persons. Upon information and belief, there are thousands of asylum applicants to whom Defendants have failed or will fail to provide legally sufficient notice of the status of their asylum EAD clocks and a meaningful opportunity to challenge improper asylum EAD clock determinations.
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154. Questions of law common to the Notice and Review class are whether Defendants’ Notice and Review Policies and Practices violate the U.S. Constitution, the INA, the governing regulations, and the APA. Hearing Subclass
155. Plaintiff B.H. seeks to represent a subclass, entitled “Hearing Subclass,” consisting of:
Individuals who have been or will be issued a Notice to Appear or Notice of Referral for removal proceedings; who have filed or sought to file or who will file or seek to file a complete asylum application with the immigration court; but whose asylum EAD clocks did not start or will not start on the date that this application was or will be filed because of Defendants’ policy requiring asylum applications to be filed at a hearing before an immigration judge. 156. In accordance with the applicable regulations, Plaintiff filed his complete asylum applications with the immigration court more than 180 days ago, exclusive of any period of applicant-caused delay. Defendants have denied his application for work authorization based on their Hearing Policy and Practice, which dictates that an EAD asylum clock can start or restart only at a hearing before an immigration judge. Consequently, Plaintiff’s asylum EAD clock does not reflect the period following the filing or attempted filing of a complete asylum application with the immigration court prior to the next hearing. 157. The Hearing subclass is so numerous that joinder of all members is impracticable. Plaintiffs are not aware of the exact number of potential subclass members because Defendants are in the best position to identify such persons. Upon information and belief, there are hundreds of asylum applicants who are unable to obtain employment authorization because Defendants have refused or will refuse to start their
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asylum EAD clocks until a hearing before an immigration judge even though they already have filed or will file a complete asylum application with the immigration court prior to that hearing.
158. Questions of law common to the Hearing subclass are whether Defendants’ Hearing Policy and Practice violates the U.S. Constitution, the INA, the regulations, and/or the APA. Prolonged Tolling Subclass
159. Plaintiffs M.A. and A.S.D. seek to represent a subclass entitled “Prolonged Tolling subclass,” consisting of:
Asylum applicants whose asylum EAD clocks are or will be stopped due to delay attributed to them by Defendants; who have resolved or will resolve the delay prior to the next scheduled hearing; but whose asylum EAD clocks remain or will remain stopped until the next hearing date. 160. Plaintiffs filed complete asylum applications with the immigration court and their applications have been pending for more than 180 days exclusive of any period of applicant-caused delay. Defendants have denied or will deny their applications for work authorization based on their Prolonged Tolling Policy and Practice, which dictates that an asylum EAD clock cannot be restarted until the next hearings date even when this tolls the running of the 180-day waiting period beyond the period of applicant-caused delay. 161. The Prolonged Tolling subclass is so numerous that joinder of all members is impracticable. Plaintiffs are not aware of the exact number of potential subclass members because Defendants are in the best position to identify such persons. Upon information and belief, there are hundreds of asylum applicants who are unable to obtain employment authorization because Defendants have refused or will refuse to start
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or restart their asylum EAD clocks until the next hearing before an immigration judge even though this stops their asylum EAD clocks for a prolonged period beyond that which they caused or requested.
162. Questions of law common to the Prolonged Tolling subclass are whether Defendants’ Hearing Policy and Practice violates the U.S. Constitution, the INA, the regulations, and/or the APA. Missed Asylum Interview Subclass
163. Plaintiffs M.F., H.L., L.M.M.M, and B.M. seek to represent a subclass, entitled “Missed Asylum Interview Subclass,” consisting of:
Asylum applicants who have failed or will fail to appear for an asylum interview with USCIS; whose asylum cases have been or will be referred to EOIR for removal hearings following the missed asylum interview; and whose asylum EAD clocks have been or will be stopped on the date of the missed asylum interview and are not restarted thereafter by either USCIS or EOIR, even though they appear before EOIR and are prepared to move forward with their asylum application. 164. Plaintiffs filed complete asylum applications with the immigration court and their applications have been pending for more than 180 days, exclusive of any period of applicant-caused delay. Defendants have denied or will deny their applications for work authorization based on their Missed Asylum Interview Policy and Practice, which permanently stops the asylum EAD clock of an asylum applicant who has failed to appear at an asylum interview and whose case is referred to EOIR for a removal hearing. 165. The Missed Asylum Interview subclass is so numerous that joinder of all members is impracticable. Plaintiffs are not aware of the exact number of potential subclass members because Defendants are in the best position to identify such persons. Upon information and belief, there are hundreds of asylum applicants whose asylum
43

Case 2:11-cv-02108-RAJ Document 34 Filed 06/05/12 Page 44 of 57
EAD clocks were or will be stopped following a missed asylum interview and who are or will be unable to obtain employment authorization because Defendants have refused or will refuse to restart their asylum EAD clocks following a referral to EOIR.
166. Questions of law common to the Missed Asylum Interview subclass are whether Defendants’ Missed Asylum Interview Policy and Practice violates the U.S. Constitution, the INA, the regulations, and/or the APA. Remand Subclass
167. Plaintiffs G.K., L.K.G. and D.W. seek to represent a subclass, entitled “Remand subclass,” consisting of:
Asylum applicants whose asylum EAD clocks were or will be stopped following the denial of their asylum applications by the immigration court, and whose asylum EAD clocks are not or will not be started or restarted subsequent to an appeal in which either the BIA or a federal court of appeals remands their case for further adjudication of their asylum claims 168. Plaintiffs filed complete asylum applications with the immigration court and their applications have been pending for more than 180 days, exclusive of any period of applicant-caused delay. Defendants have denied or will deny their applications for work authorization based on their Remand Policy and Practice, which dictates that an asylum EAD clock cannot be started or restarted following remand. 169. The Remand subclass is so numerous that joinder of all members is impracticable. Plaintiffs are not aware of the exact number of potential class members because Defendants are in the best position to identify such persons. However, upon information and belief, there are hundreds of asylum applicants who have been or will be denied employment authorization because Defendants unlawfully failed to start or restart their asylum EAD clocks following remand.
44

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170. Questions of law common to the Remand subclass are whether the Defendants’ Remand Policy and Practice violates the U.S. Constitution, the INA, the immigration regulations, and/or the APA.
171. The claims of all the named Plaintiffs are typical of the Notice and Review class. The claims of Plaintiffs seeking to represent each proposed subclass are typical of the members of each respective proposed subclass.
172. The Plaintiffs will fairly and adequately represent and protect the interests of the members of the proposed Notice and Review class. The Plaintiffs seeking to represent each proposed subclass will fairly and adequately represent the interests of each respective proposed subclass.
173. Plaintiffs are represented by competent counsel with extensive experience in complex class actions and immigration law.
DECLARATORY AND INJUNCTIVE RELIEF ALLEGATIONS 174. Defendants have acted on grounds generally applicable to the proposed class and subclasses, thereby making appropriate final declaratory and injunctive relief with respect to the class and each subclass. 175. An actual and substantial controversy exists between the class and each subclass and the Defendants as to their respective legal rights and duties. Plaintiffs contend that Defendants’ actions violate Plaintiffs’ rights and the rights of proposed class and subclass members. 176. Defendants’ miscalculations of Plaintiffs and proposed class and subclass members’ asylum EAD clocks based upon their policies and practices has caused and
45

Case 2:11-cv-02108-RAJ Document 34 Filed 06/05/12 Page 46 of 57
will continue to cause irreparable injury to Plaintiffs and proposed class and subclass members. Plaintiffs have no plain, speedy, and adequate remedy at law.
177. The EAD applications of Plaintiffs and the class and subclasses have been or will be denied due to Defendants’ policies and practices challenged herein. Defendants’ actions constitute final agency action for the purpose of the APA, 5 U.S.C. § 701, et seq.
178. The INA and applicable regulations provide for no administrative appeal from a denial of an EAD application. Accordingly, Plaintiffs have exhausted their administrative remedies.
179. Under 5 U.S.C. §§ 702 and 704, Plaintiffs and proposed class and subclass members have suffered a “legal wrong” and have been “adversely affected or aggrieved” by agency action for which there is no other adequate remedy in a court of law.
180. Based on the foregoing, the Court should grant declaratory and injunctive relief under 28 U.S.C. §§ 2201, 2202 and 5 U.S.C. § 702.
First Cause of Action Violation of the Immigration and Nationality Act and Regulations and
the Due Process Clause of Fifth Amendment: Lack of Notice and Meaningful Opportunity to Contest (on Behalf of All Plaintiffs
and the Notice and Review Class) 181. Plaintiffs incorporate by reference the allegations of fact set forth in the previous paragraphs. 182. Defendants have a nationwide Notice and Review Policy and Practice of not providing legally sufficient notice to asylum applicants when their asylum EAD clocks are stopped or not started or restarted during removal proceedings and when their EAD applications are denied, and of failing to provide a meaningful opportunity to
46

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contest asylum EAD clock determinations and EAD application denials. This policy and practice deprives Plaintiffs and the class of the opportunity to make informed decisions concerning whether to request a rescheduled hearing, continuance or delay in the adjudication of their asylum applications; the opportunity to address or cure any applicant-caused delay; and the opportunity to respond to and contest an incorrect decision concerning their asylum EAD clocks and EAD applications, including whether a rescheduled hearing, continuance, or delay was caused by the applicant.
183. Through this policy and practice, Defendants violate the INA and regulations governing the issuance of employment authorization documents, including inter alia, 8 C.F.R. §§ 274a.12(c)(8), 274a.13(a), 208.7, 1208.7, and 103.2 and 103.3, and deprive Plaintiffs and the Notice and Review class of an opportunity to apply for a benefit provided under law without due process, in violation of the Fifth Amendment of the Constitution.
Second Cause of Action Violation of Administrative Procedure Act: Lack of Notice and Meaningful Opportunity to Contest (on Behalf of All Plaintiffs
and the Notice and Review Class) 184. Plaintiffs incorporate by reference the allegations of fact set forth in the previous paragraphs. 185. Defendants’ failure to provide asylum applicants with legally sufficient notice of or an opportunity to contest asylum EAD clock determinations and EAD denials is arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with the law. As such, it violates the Administrative Procedure Act, 5 U.S.C. § 701, et seq.
Third Cause of Action Violation of the Immigration and Nationality Act, Regulations and Due Process Clause of Fifth Amendment: Refusal to Start Asylum
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EAD Clock except at Hearing (on Behalf of Plaintiff B.H. and the Hearing Subclass) 186. Plaintiffs incorporate by reference the allegations of fact set forth in the
previous paragraphs. 187. Defendants have a nationwide Hearing Policy and Practice dictating that
asylum EAD clocks can start only at a hearing. This policy and practice prevents some asylum applicants from filing an application with the immigration court at a time other than a scheduled hearing before an immigration judge. For those applicants who are able to file an asylum application with the immigration court prior to a hearing, this policy and practice prevents Defendants from immediately starting the asylum EAD clock upon the filing of the application. The clock does not start before the next scheduled hearing.
188. Through this policy and practice, which has prevented or will prevent Plaintiff B.H. and the Hearing subclass from receiving work authorization during the legally permitted timeframe, Defendants violate the INA, including, inter alia, 8 U.S.C. §1158(d)(2), and its implementing regulations, including, inter alia, 8 C.F.R. §§ 208.3(c), 208.4(b), 208.7(a), 274a.12(c)(8), 274a.13(a), 1208.3(c), 1208.4(b), and 1208.7(a), and deprive the Plaintiff and Hearing subclass of an opportunity to apply for a benefit provided under law without due process, in violation of the Fifth Amendment of the Constitution.
Fourth Cause of Action Violation of Administrative Procedure Act: Refusal to Start Asylum EAD Clock except at Hearing (on Behalf of Plaintiffs B.H and the Hearing
Subclass) 189. Plaintiffs incorporate by reference the allegations of fact set forth in the previous paragraphs.
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190. Defendants’ refusal to start the asylum EAD clocks of Plaintiff B.H. and the Hearing subclass members prior to their next scheduled hearings despite the filing of a complete asylum application with the immigration court is arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with the law. As such, it violates the Administrative Procedure Act, 5 U.S.C. § 701, et seq.
Fifth Cause of Action Violation of the Immigration and Nationality Act, Regulations and Due Process Clause of Fifth Amendment: Refusal to Start or Restart Asylum EAD Clock between Hearings (on Behalf of Plaintiffs M.A., A.S.D. and the
Prolonged Tolling Subclass) 191. Plaintiffs incorporate by reference the allegations of fact set forth in the previous paragraphs. 192. Defendants have a nationwide Hearing Policy and Practice of refusing to start or restart the asylum EAD clocks of Plaintiffs M.A. and A.S.D. and members of the Prolonged Tolling subclass when their applicant-caused delay has been resolved and instead continuing to toll the 180-day waiting period for an EAD until the next scheduled hearing date. This policy and practice impermissibly tolls the running of the 180-day waiting period for an EAD beyond the period of applicant-caused delay for reasons related to EOIR’s case management and the congested dockets of the immigration courts. 193. Through this policy and practice, which has prevented or will prevent Plaintiffs M.A., A.S.D., and the Prolonged Tolling subclass from receiving work authorization during the legally permitted timeframe, Defendants violate the INA, including, inter alia, 8 U.S.C. §1158(d)(2), and its implementing regulations, including, inter alia, 8 C.F.R. §§ 208.7(a)(2) and 1208.7(a), and deprive the Plaintiffs and the
49

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Prolonged Tolling subclass of an opportunity to apply for a benefit provided under law without due process, in violation of the Fifth Amendment of the Constitution.
Sixth Cause of Action Violation of Administrative Procedure Act: Refusal to Start or Restart Asylum
EAD Clock between Hearings (on Behalf of Plaintiffs M.A., A.S.D. and the Prolonged Tolling Subclass)
194. Plaintiffs incorporate by reference the allegations of fact set forth in the previous paragraphs.
195. Defendants’ refusal to start or restart the asylum EAD clocks of Plaintiffs M.A. and A.S.D. and members of the Prolonged Tolling subclass when their applicantcaused delay has been resolved and instead to continue to toll the 180-day waiting period for an EAD until the next scheduled hearing is arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with the law. As such, it violates the Administrative Procedure Act, 5 U.S.C. § 701, et seq.
Seventh Cause of Action Violation of the Immigration and Nationality Act, Regulations and Due Process Clause of the Fifth Amendment: Failure to Restart the Asylum EAD Clock at the First Immigration Court Hearing Following a Referral for a Missed Asylum Interview (on Behalf of Plaintiffs M.F., H.L., L.M.M.M., and
B.M. and the Missed Asylum Interview Subclass) 196. Plaintiffs incorporate by reference the allegations of fact set forth in the previous paragraphs. 197. Defendants have a nationwide Missed Asylum Interview Policy and Practice pursuant to which an asylum EAD clock that is stopped following a missed asylum interview before USCIS cannot be restarted after the case is referred to EOIR for removal proceedings. This policy and practice prevents members of this proposed
50

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subclass from having their asylum EAD clocks restarted for the entire time that their asylum application is pending before an immigration judge.
198. Through this policy and practice, which has prevented or will prevent Plaintiffs M.F., H.L., L.M.M.M., B.M. and the Missed Asylum Interview Subclass from receiving work authorization during the legally permitted timeframe, Defendants violate the INA, including, inter alia, 8 U.S.C. §1158(d)(2), and its implementing regulations, including, inter alia, 8 C.F.R. §§ 103.2(b)(16), 208.7(a), 274a.12(c)(8), 274a.13(a), and 1208.7(a), and deprive the Plaintiffs and Missed Asylum Interview Subclass of an opportunity to apply for a benefit provided under law without due process, in violation of the Fifth Amendment of the Constitution.
Eighth Cause of Action Violation of Administrative Procedure Act: Failure to Restart the Asylum EAD Clock at the First Immigration Court Hearing Following a Referral for a Missed Asylum Interview (on Behalf of Plaintiffs M.F., H.L., L.M.M.M.,
and B.M. and the Missed Asylum Interview Subclass) 199. Plaintiffs incorporate by reference the allegations of fact set forth in the previous paragraphs. 200. Defendants’ refusal to restart the asylum EAD clocks of Plaintiffs M.F., H.L., L.M.M.M., and B.M. and the Missed Asylum Interview subclass members at their first master calendar hearing following the referral of their cases to immigration court and Defendants’ failure to provide an adequate opportunity for these plaintiffs and class members to demonstrate that exceptional circumstances justified their failures to appear at an asylum interview are arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with the law. As such, they violate the Administrative Procedure Act, 5 U.S.C. § 701, et seq.
51

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Ninth Cause of Action Violation of the Immigration and Nationality Act and Regulations and Due Process Clause of the Fifth Amendment: Failure to Restart the Asylum EAD Clock
after Remand (on Behalf of Plaintiffs G.K., L.K.G., D.W. and the Remand Subclass) 201. Plaintiffs incorporate by reference the allegations of fact set forth in the previous paragraphs. 202. Defendants have a nationwide Remand Policy and Practice dictating that an asylum EAD clock cannot be started or restarted after the BIA or a federal appeals court has remanded an asylum case for adjudication. 203. Through this policy and practice, which has prevented or will prevent Plaintiffs G.K., L.K.G. and D.W. and the Remand subclass from receiving work authorization during a legally permitted timeframe, Defendants violate the INA, including, inter alia, 8 U.S.C. §1158(d)(2), and its implementing regulations governing the issuance of employment authorization documents, including inter alia, 8 C.F.R. §§ 274a.12(c)(8), 274a.13(a), 208.7(a)(2), and 1208.7(a)(2).
Tenth Cause of Action Violation of Administrative Procedure Act: Failure to Restart Asylum
EAD Clock on Remand (on Behalf of Plaintiffs G.K., L.K.G. and D.W. and the Remand Subclass)
204. Plaintiffs incorporate by reference the allegations of fact set forth in the previous paragraphs.
205. Defendants’ refusal to start the asylum EAD clocks of the Plaintiffs G.K., L.K.G. and D.W. and the Remand subclass following remand by the BIA or a federal appeals court is arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law. As such, it violates the Administrative Procedure Act, 5 U.S.C. § 701, et seq.
52

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Prayer for Relief Wherefore: A. Plaintiffs respectfully request that this Court:
1. Assume jurisdiction over this matter; 2. Certify this case as a class action, and certify a Notice and Review class, Hearing subclass, Prolonged Tolling subclass, Missed Asylum Interview subclass and Remand subclass; 3. Appoint all Plaintiffs as representatives of the Notice and Review class; 4. Appoint Plaintiff B.H. as representative of the Hearing subclass; Plaintiffs M.A. and A.S.D. as representatives of the Prolonged Tolling subclass; Plaintiffs M.F., B.M., L.M.M.M. and H.L. as representatives of the Missed Asylum Interview subclass; and Plaintiffs L.K.G., G.K., and D.W. as representatives of the Remand subclass; 5. Appoint Matt Adams, Chris Strawn, Melissa Crow, Mary Kenney, Emily Creighton, Robert Pauw, Robert Gibbs and Iris Gomez as class counsel pursuant to Federal Rule of Civil Procedure 23(g). B. As remedies for each of the causes of action asserted above, Plaintiffs and class members request judgment as follows: 1. A declaratory judgment finding Defendants’ failure to provide legally sufficient notice to applicants whose asylum EAD clocks are stopped or not started or restarted during removal proceedings and a meaningful opportunity to correct errors to be arbitrary and capricious, an
53

Case 2:11-cv-02108-RAJ Document 34 Filed 06/05/12 Page 54 of 57
abuse of discretion, and in violation of the statute and regulations and a violation of due process; 2. A declaratory judgment finding Defendants’ Hearing Policy and Practice, Prolonged Tolling Policy and Practice, Missed Asylum Interview Policy and Practice, and Remand Policy and Practice to be arbitrary and capricious, an abuse of discretion, in violation of the statute and regulations, and a violation of due process; 3. A permanent injunction ordering that if an asylum applicant is in removal proceedings before an immigration judge, then any decision to stop or not start or restart the asylum EAD clock must be made on the record, and only after the applicant has been notified of the consequences of requesting or causing a delay and given an opportunity to respond; 4. A permanent injunction ordering Defendants to establish an adequate process for an asylum applicant to contest an asylum EAD clock or EAD decision that is considered erroneous; 5. A permanent injunction ordering Defendants to start the asylum EAD clock when an asylum applicant files a complete asylum application with EOIR; 6. A permanent injunction ordering Defendants to start or restart the asylum EAD clock between immigration court hearings when an applicant resolves any delay he or she may have caused; 7. A permanent injunction ordering Defendants to start or restart the asylum EAD clock at the first hearing following a referral to immigration
54

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court of any case in which the applicant missed an interview before the asylum office; 8. A permanent injunction ordering Defendants to start or restart the asylum EAD clock following a remand of an asylum case by either the Board of Immigration Appeals or a federal court of appeals; 9. A permanent injunction ordering Defendant USCIS to readjudicate Plaintiffs’ EAD applications in accordance with the above-referenced guidelines; 10. Reasonable attorneys’ fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d), 5 U.S.C. § 504, or any other applicable law; and 11. Such other and further relief as this Court deems just and appropriate. ***

Dated: June 4, 2012

By: /s/ Matt Adams
Matt Adams Christopher P. Strawn NORTHWEST IMMIGRANT RIGHTS PROJECT 615 2nd Avenue, Suite 400 Seattle, WA 98104 (206) 587-4009 ext. 111 (206) 587-4025 (Fax) matt@nwirp.org chris@nwirp.org
Mary Kenney Melissa Crow Emily Creighton AMERICAN IMMIGRATION COUNCIL

55

Case 2:11-cv-02108-RAJ Document 34 Filed 06/05/12 Page 56 of 57
1331 G Street NW, Suite 200 Washington, DC 20005 (202) 507-7512 (202) 742-5619 (Fax) mkenney@immcouncil.org mcrow@immcouncil.org ecreighton@immcouncil.org Robert H. Gibbs Robert Pauw GIBBS HOUSTON PAUW 1000 Second Avenue, Suite 1600 Seattle, WA 98104 (206) 224-8790 (206) 689-2270 (Fax) rgibbs@ghp-law.net rpauw@ghp-law.net Iris Gomez MASSACHUSETTS LAW REFORM INSTITUTE 99 Chauncy Street, Suite 500 Boston, MA 02111 (617) 357-0700 x. 331 (617) 357-0777 (Fax) igomez@mlri.org
56

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CERTIFICATE OF SERVICE I hereby certify that on June 5, 2012, I electronically filed the foregoing motion and proposed order with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: J. Max Weintraub US DEPARTMENT OF JUSTICE (BOX 868) PO BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-305-7551 Email: jacob.weintraub@usdoj.gov and Priscilla To-Yin Chan US ATTORNEY'S OFFICE (SEA) 700 STEWART ST STE 5220 SEATTLE, WA 98101-1271 206-553-7970 Email: Priscilla.Chan@usdoj.gov Dated: June 5, 2012
/s/ Matt Adams Matt Adams, WSBA No. 28287 Northwest Immigrant Rights Project 615 Second Ave. Suite 400 Seattle, WA 98104 Phone: 206-957-8611 Fax: 206-587-402
57

 
 Case 2:11-cv-02108-RAJ Document 61 Filed 05/08/13 Page 1 of 2

1

The Honorable Richard A. Jones

2

United States District Judge

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10

11

B.H., M.A., A.S.D., M.F., H.L., L.M.M.M., B.M., G.K., L.K.G., and D.W.,

12 Individually and on Behalf of All Others

Similarly Situated,
13

14

Plaintiffs,

Case No. 2:11-cv-02108 RAJ ORDER

15

v.

16
U.S. CITIZENSHIP AND IMMIGRATION 17 SERVICES; EXECUTIVE OFFICE FOR 18 IMMIGRATION REVIEW; Janet NAPOLITANO,
Secretary, Department of Homeland Security; 19 Alejandro MAYORKAS, Director, U.S. 20 Citizenship and Immigration Services; Eric H.
HOLDER, Jr., Attorney General of the United 21 States; Juan OSUNA, Director, Executive Office 22 for Immigration Review,

23

Defendants.

24
This matter comes before the court on the parties’ amended joint motion for
25
preliminary approval of settlement and request for fairness hearing. Dkt. # 60. Having
26

considered the motion and accompanying documents:
27

28

1. The Settlement Agreement is preliminarily approved.

2. The Class Notice, attached as Exhibit A to the Settlement Agreement, is approved.

ORDER - 1

Case 2:11-cv-02108-RAJ Document 61 Filed 05/08/13 Page 2 of 2

1

3. Notice shall be given in the manner specific in Section II.B.6 of the Settlement

2

Agreement.

3

4. This matter is set for a fairness hearing on the 20th day of September, 2013, at 10:00

4

a.m. at the United States Courthouse, 700 Stewart Street, Seattle WA 98101, in the

5
Courtroom of the Honorable Richard A. Jones.

6

7

DATED this 7th day of May, 2013.

8 9

A

10
The Honorable Richard A. Jones

11

United States District Judge

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ORDER - 2

 
 Case 2:11-cv-02108-RAJ Document 60-1 Filed 05/06/13 Page 1 of 21

1

The Honorable Richard A. Jones

2

United States District Judge

3

`

4

5

6

7

8

9

10

UNITED STATES DISTRICT COURT

11

WESTERN DISTRICT OF WASHINGTON

12

AT SEATTLE

13

14 B.H., M.A., A.S.D., M.F., H.L.,

15 L.M.M.M., B.M., G.K., L.K.G., and D.W., No. CV11-2108-RAJ

16 Individually and on Behalf of All Others 17 Similarly Situated,1

18

19

Plaintiffs,

SETTLEMENT AGREEMENT

20

21

v.

22

23 U.S. CITIZENSHIP AND

24 IMMIGRATION SERVICES;

25 EXECUTIVE OFFICE FOR

26 IMMIGRATION REVIEW; Janet

27 NAPOLITANO, Secretary, Department of

28 Homeland Security; Alejandro

29 MAYORKAS, Director, U.S. Citizenship 30 and Immigration Services; Eric H.

31 HOLDER, Jr., Attorney General of the

32 United States; Juan OSUNA, Director,

33 Executive Office for Immigration Review,

34

35

Defendants.

36

37

38 This Settlement Agreement (“Agreement”) is entered into by and between Named

39 Plaintiffs B.H., M.A., A.S.D., M.F., H.L., L.M.M.M., B.M., G.K., L.K.G., and D.W., (the

40 “Named Plaintiffs”) and the Class (defined in Section II.A. below) (collectively,

41 “Plaintiffs”), and Defendants U.S. CITIZENSHIP AND IMMIGRATION SERVICES

42 (“USCIS”); EXECUTIVE OFFICE FOR IMMIGRATION REVIEW (“EOIR”); Janet

43

44 1 The original caption for this action listed “A.B.T., K.M.-W., G.K., L.K.G., [and] D.W.” as the individual

45 46

plaintiffs. This Notice will refer to this action as “ABT,” the Settlement Agreement in this action as “the ABT Settlement Agreement,” claimants under the Agreement as “ABT claimants,” and the individual claim review process under the Agreement as the “Individual ABT Claim Review process.”

47

CV11-2108-RAJ Settlement Agreement, Page 1

Case 2:11-cv-02108-RAJ Document 60-1 Filed 05/06/13 Page 2 of 21

1 NAPOLITANO, Secretary, Department of Homeland Security; Alejandro MAYORKAS,

2 Director, U.S. Citizenship and Immigration Services; Eric H. HOLDER, Jr., Attorney

3 General of the United States; Juan OSUNA, Director, Executive Office for Immigration

`

4 Review (“Defendants”) (together with the Plaintiffs, the “Parties”), with reference to the

5 facts recited herein.

6

7

I. RECITALS

8

9 WHEREAS: 10

11 A. 12

The Litigation.

13

1. On December 15, 2011, Plaintiffs filed a putative class action complaint,

14 challenging the Federal Government’s practices with respect to Employment

15 Authorization Documents (“EAD”) for applicants for asylum;

16

17

2. Plaintiffs are “all noncitizens in the United States who have been placed in

18 removal proceedings, have filed a complete Form I-589, Application for Asylum and 19 Withholding of Removal (“asylum application”), [and] have filed or will file a Form I20 765, Application for Employment Authorization, pursuant to 8 C.F.R. § 274a.12(c)(8)”; 21

22

3. On June 5, 2012, Plaintiffs amended their complaint. Defendants timely

23 answered the amended complaint on June 19, 2012;

24

25

4. The Action remains pending before the U.S. District Court for the Western

26 District of Washington.

27

28 B. 29

Benefits of Settlement.

30

1. The Parties recognize the need to draw to a close litigation of this Action,

31 which has been pending for roughly a year, and desire to resolve the Action – after

32 engaging in two productive mediation sessions – by entering into this Agreement, thereby

33 avoiding the time and expense of further litigation;

34

35

2. Plaintiffs, in consultation with their counsel, have determined that this

36 Agreement is fair, reasonable, adequate and in the best interests of Plaintiffs; and

37

38

3. Defendants deny that they have committed any act or omission giving rise

39 to any liability, deny any wrongdoing, and state that they are entering into this Agreement

40 solely to eliminate the uncertainties, burden, and expense of further protracted litigation.

41 By entering into this Agreement, Defendants do not admit any factual allegations against

42 them; do not concede any defense or objection to the Action; do not admit having

43 violated any law, whether constitutional or statutory, federal or state; and do not admit

44 having violated any regulation or administrative or judicial case law.

45

46

47

CV11-2108-RAJ Settlement Agreement, Page 2

Case 2:11-cv-02108-RAJ Document 60-1 Filed 05/06/13 Page 3 of 21

1

2 II. DEFINITIONS, CONDITIONS, AND MISCELLANEOUS PROVISIONS

3

`

4 NOW THEREFORE in recognition that the Parties and the interests of justice are best

5 served by concluding the litigation, subject to the Court’s approval and entry of an order

6 consistent with this Agreement, the undersigned Parties, through counsel, hereby

7 stipulate and agree as follows:

8

9 A. 10

Definitions.

11

1. Action. “Action” means the lawsuit of B.H., et al. v. United States

12 Citizenship and Immigration Services, et al., No. CV11-2108-RAJ (W.D. Wash.).

13

14

2. Application for Employment Authorization. “Application for employment

15 authorization” means the Form I-765, Application for Employment Authorization.

16

17

3. Asylum application. “Asylum application” means the Form I-589,

18 Application for Asylum and Withholding of Removal.

19

20

4. Class. The definition of the “Class,” as jointly proposed by the Parties and

21 approved by the Court, is as follows:

22

23

a. Notice and Review Class: All noncitizens in the United States who

24 meet all of the following criteria: (1) have filed or will file or lodge with Defendants a

25 complete asylum application; (2) whose asylum applications have neither been approved 26 nor subjected to a denial for which no rights of review or appeal remain; (3) whose 27 applications for employment authorization have been or will be denied; (4) whose 28 eligibility for employment authorization based on a pending asylum application will be 29 determined in a manner that is alleged to provide insufficient notice and/or opportunity 30 for review; and (5) who fall in one or more of the following Subclasses: 31

32

i.

Hearing Subclass: Individuals who meet all of the

33 following criteria: (1) who have been or will be issued a Form I-862, Notice to Appear in

34 removal proceedings, or Form I-863, Notice of Referral to an immigration judge; (2) who

35 have filed or lodged, or sought to lodge, or who will lodge or seek to lodge a complete

36 defensive asylum application with the immigration court prior to a hearing before an

37 immigration judge; and (3) whose eligibility for employment authorization has been or

38 will be calculated from the date the asylum application was or will be filed at a hearing

39 before an immigration judge.

40

41

ii.

Prolonged Tolling Subclass: Asylum applicants who meet

42 all of the following criteria: (1) non-detained asylum applicants whose time creditable

43 toward employment authorization is or will be stopped due to delay attributed to them by

44 Defendants; (2) who have allegedly resolved the issue causing the delay or will allegedly

45 resolve the issue causing the delay prior to the next scheduled hearing before an

46

47

CV11-2108-RAJ Settlement Agreement, Page 3

Case 2:11-cv-02108-RAJ Document 60-1 Filed 05/06/13 Page 4 of 21

1 immigration judge; (3) but whose time creditable toward employment authorization

2 remains or will remain stopped until the next hearing date.

3

`

4

iii.

Missed Asylum Interview Subclass: Asylum applicants

5 who meet both of the following criteria: (1) who have failed or will fail to appear for an

6 asylum interview with USCIS; and (2) who have not or will not accrue time creditable

7 toward eligibility for employment authorization following the date of the missed asylum

8 interview on account of missing that asylum interview.

9

10

iv.

Remand Subclass: Asylum applicants who meet both of the

11 following criteria: (1) whose asylum applications were or will be denied by the 12 immigration court before they have been pending at least 180 days exclusive of applicant 13 caused delays; and (2) who subsequent to an appeal in which either the Board of 14 Immigration Appeals (BIA) or a federal court of appeals remands their case for further 15 adjudication of their asylum claim by an immigration judge, have not or will not accrue 16 additional time creditable toward eligibility for employment authorization. 17

18

5. Class counsel. “Class counsel” means counsel appointed to represent the

19 Class in accordance with Federal Rule of Civil Procedure 23(g), as follows:

20

21

Matt Adams

22

Christopher Strawn

23

NORTHWEST IMMIGRANT RIGHTS PROJECT (NWIRP)

24

615 2nd Avenue, Suite 400

25

Seattle, WA 98104

26

27

Melissa Crow

28

Mary Kenney

29

Emily Creighton

30

AMERICAN IMMIGRATION COUNCIL (AIC)

31

1331 G Street NW, Suite 200

32

Washington, DC 20005

33

34

Robert H. Gibbs

35

Robert Pauw

36

GIBBS HOUSTON PAUW

37

1000 Second Avenue, Suite 1600

38

Seattle, WA 98104

39

40

Iris Gomez

41

MASSACHUSETTS LAW REFORM INSTITUTE (MLRI)

42

99 Chauncy Street, Suite 500

43

Boston, MA 02111

44

45

46

47

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1

6. Class member. “Class member” means a member of the Class.

2

3

7. Court. “Court” means the U.S. District Court for the Western District of

`

4 Washington.

5

6

8. EAD. “EAD” means Employment Authorization Document.

7

8

9. Fairness Hearing. “Fairness Hearing” means the hearing required for Final

9 Approval of the settlement pursuant to Federal Rule of Civil Procedure 23(e)(2) and

10 described at Section II.B.5. of this Agreement.

11

12

10. Individual ABT Claim Review. “Individual ABT Claim Review” refers to

13 the exclusive process used by individual ABT claimants who allege to be Class or

14 Subclass members and allege that USCIS and/or EOIR has failed to comply with terms of

15 this Agreement, as described in Section II.C.11.b.

16

17

11. Parties. “Party” or “parties” means the Defendants and the Plaintiffs,

18 including all Class members. 19

20

12. Preliminary Approval. “Preliminary Approval” means that the Court has

21 granted the Parties’ Joint Motion for Preliminary Approval of Settlement as described in

22 Section II.B.2. of this Agreement and ordered a Fairness Hearing.

23

24 B. Conditions and Approval of Settlement.

25

26

1. Effective Date of Agreement. After this Agreement has been executed by

27 all Parties, it will become effective upon Preliminary Approval of the settlement by the

28 Court.

29

30

2. Submission of the Settlement Agreement to Court for Preliminary

31 Approval. Within fifteen (15) days after execution of this Agreement, the Parties shall

32 apply to the Court for Preliminary Approval of the settlement. The Parties shall file a

33 Joint Motion for Preliminary Approval and Request for a Fairness Hearing, and they shall

34 attach a copy of this Agreement, the proposed Notice to the Class, in the form of Exhibit

35 A attached hereto, and such other documents that the Parties determine are necessary for

36 the Court’s consideration. The Parties further agree to file by that same time a joint

37 motion to stay proceedings pending the Court’s consideration of the matter.

38

39

3. Effect of the Court’s Denial of the Agreement. If the Court rejects this

40 Agreement, in whole or in part, or otherwise finds that the Agreement is not fair,

41 reasonable, and adequate, this Agreement shall become null and void.

42

43

4. Attorney’s Fees and Costs. The Parties have resolved the matter of fees

44 arising from this litigation as follows: Within ninety (90) days of the Court’s Final

45 Approval of the Agreement, as described in Section II.B.7., Defendants will deliver to

46 Plaintiffs’ Counsel the sum of $425,000, in settlement of all claims for attorneys’ fees

47

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1 and costs that could have been or will be claimed in this litigation to date. Plaintiffs and

2 Class members do not waive any claims to attorney’s fees and costs should future

3 litigation pursuant to the Dispute Resolution Mechanism in Section II.C.11. be necessary.

`

4

5

5. Fairness Hearing. At the Fairness Hearing, the Parties will jointly request

6 that the Court approve the settlement as final, fair, reasonable, adequate and binding on

7 the Class, all Class Members, and all Plaintiffs.

8

9

6. Objections to Settlement. Within seven days following the Court’s

10 Preliminary Approval of the Agreement, Defendants will post the Notice to the Class,

11 attached as Exhibit A to this Agreement, on USCIS’ website and on EOIR’s website, post 12 in all immigration courts, distribute to the EOIR pro bono list, and distribute to 13 community-based organizations and other interested parties. Specifically, EOIR will post 14 the notice on a bulletin board in the waiting room for each immigration court where there 15 is such a bulletin board. This is where all notices to the public are typically posted, and 16 aliens and their counsel should know to look for important notices there. In immigration 17 courts that lack bulletin boards, EOIR will post the notice in the equivalent location

18 where respondents and their counsel should know to look for notices. Additionally, to 19 accommodate detained class members, EOIR will post the notice in a visible place in 20 EOIR's space within each facility that is accessible to aliens and where aliens should 21 know to look for important notices, where such a space is available. Each immigration 22 court has a Court Administrator that can ensure that the notices will be available within 23 the seven-day deadline. Plaintiffs will distribute the Notice to the Class, attached as 24 Exhibit A to this Agreement, to all American Immigration Lawyers Association (AILA)

25 chapters, and post on AILA InfoNet and on Northwest Immigrant Rights Project 26 (NWIRP), American Immigration Council (AIC) and Massachusetts Law Reform 27 Institute (MLRI) websites. Within thirty (30) days of issuance of the Notice to the Class, 28 in the above-described manner, any Plaintiff who wishes to object to the fairness, 29 reasonableness or adequacy of this Agreement or the settlement contemplated herein 30 must file with the Clerk of Court and serve on the Parties a statement of objection setting 31 forth the specific reason(s), if any, for the objection, including any legal support or 32 evidence in support of the objection, grounds to support his or her status as a Plaintiff, 33 and whether the Plaintiff intends to appear at the Fairness Hearing. The Parties will have 34 thirty (30) days following the objection period in which to submit answers to any 35 objections that are filed. The notice to the Clerk of the Court shall be sent to: Clerk, U.S. 36 District Court for the Western District of Washington, 700 Stewart Street Seattle, WA 37 98101, and both the envelope and letter shall state “Attention: A.B.T., et al. v. United 38 States Citizenship and Immigration Services, No. CV11-2108-RAJ (W.D. Wash.).” 39 Copies shall also be served on counsel for Plaintiffs and counsel for Defendants as set 40 forth in the Notice to Class, Exhibit A. 41

42

7. Final Approval.

43

44

a. The Court’s Final Approval of the settlement set forth in this

45 Agreement shall consist of its orders granting each of the Parties’ requests made in

46 connection with the Fairness Hearing, as described in Section II.B.5. of this Agreement,

47

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1 resolving all claims before the Court, and dismissing the Action with prejudice, with the

2 exception that following Final Approval of this Agreement, the Court shall retain

3 jurisdiction over only the following matters:

`

4

5

i. claims by any party in accordance with the provisions laid out

6 in Section II.C.11. hereto that any other party has committed a violation of this

7 Agreement;

8

9

ii. the express repudiation of any of the terms of this Agreement

10 by any party; and

11

12

13

iii. any applications for attorney fees and costs relating to Court

14 enforcement of this Agreement under the dispute resolution provisions in Section

15 II.C.11.a.iv. and II.C.11.b.vi. of this Agreement.

16

17 C. Miscellaneous Provisions.

18

19

1. Entire Agreement. This Agreement, including the Exhibit(s) and the

20 notices, interim notices and other information described under the Terms of Agreement at

21 Section III.A., constitutes the entire agreement between the Parties with respect to the

22 Action and claims released or discharged by the Agreement, and supersedes all prior

23 discussions, agreements and understandings, both written and oral, among the Parties in

24 connection therewith.

25

26

2. No modification. No change or modification of this Agreement shall be

27 valid unless it is contained in writing and signed by or on behalf of Plaintiffs and

28 Defendants and approved by the Court.

29

30

3. Full and Final Settlement. The Parties intend that the execution and

31 performance of this Agreement shall, as provided above, be effective as a full and final

32 settlement of and shall fully dispose of all claims and issues that Plaintiffs raise against

33 Defendants in the Action. The Parties acknowledge that this Agreement is fully binding

34 upon them during the life of the Agreement.

35

36

4. Severability. If any provision of this Agreement is declared null, void,

37 invalid, illegal, or unenforceable in any respect, the remaining provisions shall remain in

38 full force and effect.

39

40

5. Notices. All notices required or permitted under or pertaining to this

41 Agreement shall be in writing and delivered by any method providing proof of delivery.

42 Any notice shall be deemed to have been completed upon mailing. Notices shall be

43 delivered to the Parties at the following addresses until a different address has been

44 designated by notice to the other Party:

45

46

TO PLAINTIFFS:

47

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1

2

3

`

4

5

6

Matt Adams NORTHWEST IMMIGRANT RIGHTS PROJECT 615 2nd Avenue, Suite 400 Seattle, WA 98104

7

TO DEFENDANTS:

8

9

J. Max Weintraub

10

Senior Litigation Counsel

11

United States Department of Justice

12

Civil Division

13

Office of Immigration Litigation – District Court Section

14

P.O. Box 868, Ben Franklin Station

15

Washington, D.C. 20044

16

17

6. Opportunity to Review. The Parties acknowledge and agree that they have

18 reviewed this Agreement with legal counsel and agree to the particular language of the 19 provisions it contains. In the event of an ambiguity in or dispute regarding the 20 interpretation of the Agreement, interpretation of the Agreement shall not be resolved by 21 any rule providing for interpretation against the drafter. The Parties expressly agree that 22 in the event of an ambiguity or dispute regarding the interpretation of this Agreement, the 23 Agreement will be interpreted as if each Party hereto participated in the drafting hereof. 24

25

7. Construction of Agreement. This Agreement involves compromises of the

26 Parties’ previously stated legal positions in connection with the Action. Accordingly, this

27 Agreement does not reflect upon the Parties’ views as to rights and obligations with

28 respect to matters or persons outside of the scope of this Agreement.

29

30

8. Execution of Other Documents. Each party agrees to execute and deliver

31 such other documents and instruments and to take further action as may be reasonably

32 necessary to fully carry out the intent and purposes of this Agreement.

33

34

9. No Precedential Value. This Agreement, whether or not executed, and any

35 proceedings taken pursuant to it:

36

37

a. Shall not be offered or received against any party as evidence of,

38 or construed as or deemed to be evidence of, any presumption, concession, or admission

39 by any of the Parties of the truth in any fact of the validity of any claim that had been or

40 could have been asserted in the action, or any liability, negligence, fault, or wrongdoing

41 of the Defendants; or any admission by the Defendants of any violations of, or failure to

42 comply with, the Constitution, laws or regulations; and

43

44

b. Shall not be offered or received against the Defendants as evidence

45 of a presumption, concession, or admission of any liability, negligence, fault,

46 wrongdoing, or in any other way referred to for any other reason as against the Parties to

47

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1 this Agreement, in any other civil, criminal, or administrative action or proceedings, other

2 than in proceedings to enforce this Agreement; provided, however, that if this Agreement

3 is approved by the Court, Defendants may refer to it and rely upon it to effectuate the

`

4 liability protection granted them hereunder.

5

6

10. Headings. The Parties agree the captions or underlined paragraph headings

7 in this Agreement are included in the Agreement solely for the convenience of the

8 Parties, are not part of the terms and conditions of the Agreement, and do not limit, alter,

9 or otherwise affect the provisions of, and the Parties’ rights and obligations under, this

10 Agreement.

11

12

11. Dispute Resolution Mechanism. With regard to claims raised in the Action

13 and resolved by this Agreement, the dispute resolution provisions described below shall

14 provide the sole means to challenge performance of obligations arising under this

15 Agreement. Claims alleging that a Party has failed to comply with the terms of this

16 Agreement with respect to the entire Class or an entire Subclass, or multiple members of

17 the Class or a Subclass must be brought pursuant to subparagraph (a) and as further

18 provided by subparagraphs (c) – (f) below. Claims alleging that Defendants have failed to 19 comply with the terms of this Agreement with respect to individual asylum applicants 20 alleging to be Class members (individual ABT claimants) must be brought pursuant to 21 the “Individual ABT Claim Review” process, described in subparagraph (b) and as 22 further provided by subparagraphs (c) - (f) below. This Agreement shall not affect or in 23 any way limit the ability of parties, individuals, groups, or classes to challenge or obtain 24 review of claims not resolved by or arising under this Agreement (including those claims

25 listed in subparagraph (b)(ii) below) through any existing right or authority under law, 26 regulations, or applicable procedures. 27

28

a. Dispute Resolution Terms for multiple Class or Subclass members.

29

30

i. For allegations that a party has failed to comply with the

31 terms of this Agreement with respect to the entire Class or an entire Subclass, or multiple

32 members of the Class or a Subclass, the complaining party (“complaining party”) shall

33 notify the other party (“responding party”) in writing of the specific ground(s) upon

34 which they base their claim of non-compliance with this Agreement, substantiated with

35 specific, detailed, and timely information about the alleged non-compliance sufficient to

36 enable the responding party to investigate and respond.

37

38

ii. Within forty-five (45) days after the responding party

39 receives notice of the allegation of non-compliance with this Agreement from the

40 complaining party in accordance with subparagraph (a)(i) above, the responding party

41 shall notify the complaining party in writing of the results of the responding party’s

42 investigation of facts and any action that it has taken or intends to take in connection with

43 allegation of non-compliance.

44

45

iii. Should any dispute remain after a party has undertaken the

46 dispute resolution mechanism set forth in subparagraphs (a)(i) – (ii) above, the parties

47

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1 shall negotiate in good faith to resolve any such remaining disputes within thirty (30)

2 days from the date the responding party sends notification of the results of its

3 investigation under subparagraph (a)(ii) above.

`

4

5

iv. Should the parties be unable to resolve any dispute, and

6 following implementation of the provisions of subparagraphs (a)(i) – (iii) above, the

7 complaining party may apply to the Court for enforcement of this Agreement. The

8 complaining party shall notify the responding party of its intent to do so before applying

9 to the Court for enforcement of the Agreement. Any actions brought to the Court under

10 subparagraph (a) must be brought by either Defendants USCIS or EOIR or by Class

11 counsel appointed to represent Plaintiffs in accordance with Section II.A.5. of this 12 Agreement. 13

14

b. Individual ABT Claim Review.

15

16

i. The Individual ABT Claim Review process shall be the

17 exclusive process used by individual ABT claimants who allege that they are Class or

18 Subclass members and that USCIS and/or EOIR has failed to comply with the terms of 19 this Agreement. Nothing in this subparagraph limits an individual ABT claimant’s ability 20 to join a multi-member Class or Subclass challenge under subparagraph (a) above. An 21 individual ABT claimant may only utilize the Individual ABT Claim Review process to 22 challenge compliance with this Agreement. Specifically, individual ABT claimants may 23 only raise the following claims under this review process: 24

25

(I) An individual ABT claimant was not provided with

26

the notice referenced in Section I.A.1. of this

27

Agreement (“notice”) when he/she lodged or filed

28

his/her asylum application with the immigration

29

court, or when USCIS referred his/her case to the

30

immigration court.

31

32

(II) EOIR did not make the notice available at

33

subsequent hearings before the immigration court.

34

35

(III) EOIR did not stamp the individual ABT claimant’s

36

complete defensive asylum application at the

37

immigration court clerk’s window, mark as “lodged

38

not filed,” and return it to the claimant, or prevented

39

or otherwise deterred the ABT claimant from

40

lodging a complete asylum application.

41

42

(IV) In adjudicating an application for employment

43

authorization, USCIS did not use the date on which

44

an individual ABT claimant “lodged” his or her

45

asylum application at an immigration court clerk’s

46

47

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1

2

3

`

4

5

6

7

8

window as the filing date for the purposes of EAD eligibility.
(V) USCIS did not mail a Failure to Appear Warning Letter to the individual ABT claimant after the claimant failed to appear for an asylum interview with a USCIS Asylum Office.

9

(VI) Where an individual ABT claimant failed to appear

10

at a scheduled asylum interview with a USCIS

11

Asylum Office, and the claimant did not attempt to

12

reschedule his or her asylum interview with a

13

USCIS Asylum Office, USCIS did not wait forty-

14

five (45) days prior to issuance of a decision

15

referring the asylum application to an immigration

16

judge.

17

18

(VII) USCIS did not include a Referral Notice for Failure

19

to Appear when referring an individual ABT

20

claimant’s asylum application to an immigration

21

judge after the claimant missed an asylum interview

22

and did not reschedule that interview within forty-

23

five (45) days.

24

25

(VIII) After an ABT claimant requested a determination

26

on exceptional circumstances referenced in Section

27

I.A.4. of this Agreement, USCIS did not provide the

28

individual ABT claimant and/or his or her

29

representative of record with a determination letter,

30

with notification of the determination to U.S.

31

Immigration and Customs Enforcement’s Office of

32

the Principal Legal Advisor (“ICE OPLA”).

33

34

(IX) After the Asylum Office reopened jurisdiction over

35

an individual ABT claimant’s asylum case, where

36

the claimant had missed an asylum interview but

37

later established exceptional circumstances with a

38

USCIS Asylum Office and where an immigration

39

judge dismissed proceedings, USCIS did not restart

40

the time period for asylum adjudication and EAD

41

eligibility on the date that the ABT claimant

42

appeared for a rescheduled interview.

43

44

(X) In adjudicating an application for employment

45

authorization, USCIS did not credit the applicant

46

with the number of days that elapsed between the

47

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1

2

3

`

4

5

immigration judge’s initial denial of the individual ABT claimant’s asylum claim and the date of the BIA’s remand order for the purposes of EAD eligibility.

6

ii. The following non-exhaustive list of claims cannot be

7 challenged through the Individual ABT Claim Review process; however, this Agreement

8 shall not affect or in any way limit the ability of parties, individuals, groups, or classes to

9 challenge or obtain review of claims not resolved by this Agreement through any existing

10 right or authority under law, regulations, or applicable procedures.

11

12

(I) A challenge to whether an immigration judge made

13

the reason(s) for the case adjournment clear on the

14

record.

15

16

(II) A challenge to whether the immigration judge

17

offered a non-detained individual ABT claimant an

18

expedited hearing date that was a minimum of

19

forty-five (45) days from the last master calendar

20

hearing.

21

22

iii. Individual asylum applicants alleging to be Class or

23 Subclass members who believe that USCIS and/or EOIR have failed to comply with the

24 terms of this Agreement as required under Section III.A. (i.e., individual ABT claimants)

25 must complete and submit to USCIS and/or EOIR, as appropriate, an ABT Claim Form 26 (attached to this Agreement as Exhibit B), detailing the basis for the alleged violation of 27 the Agreement, together with copies of any documents, applications, receipts, notices, 28 and/or letters in their possession that are requested in the ABT Claim Form or that the 29 individual ABT claimants believe support their claim(s). Included in the ABT Claim 30 Form, the individual ABT claimant must designate which ground he/she is claiming the 31 Defendant(s) is/are noncompliant with in this Agreement (as enumerated in subparagraph 32 (b)(i) above). 33

34

iv. Within forty-five (45) days after USCIS and/or EOIR’s

35 receipt of an ABT Claim Form in accordance with subparagraph (b)(iii) above, USCIS

36 and/or EOIR will mail the claimant and/or his or her representative or record, if any,

37 either a written Final Notice or a Notice of Preliminary Findings, as described in clause

38 (I) and/or (II) below:

39

40

(I) The Final Notice will include the results of USCIS’s

41

and/or EOIR’s investigation of the facts as follows: (1) a

42

determination of whether or not the claimant is a Class or

43

Subclass member; (2) if the individual claimant is found to

44

be a Class or Subclass member, a determination of whether

45

a violation of the Agreement occurred with respect to the

46

individual ABT claimant; (3) a description of any

47

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1

2

3

`

4

5

6

7

8

9

corrective action that it has taken or intends to take to remedy the violation (if any); and (4) in the event USCIS and/or EOIR determines that the individual ABT claimant is not a member of a Class or Subclass, or has not stated a claim cognizable under the Agreement, instructions regarding seeking review of that determination or any corrective action, as further described in subparagraph (vi) below.

10

(II) The Notice of Preliminary Findings will explain the

11

basis for USCIS and/or EOIR’s belief that the claimant is

12

not a Class or Subclass member, or that there was no

13

violation of the Agreement, and request additional

14

information and/or evidence from the individual ABT

15

claimant. If USCIS and/or EOIR send a Notice of

16

Preliminary Findings, the applicant will have thirty (30)

17

days (the “supplementation period”) to submit additional

18

written evidence or information to remedy the perceived

19

deficiency. After the supplementation period has elapsed

20

with no response from the individual ABT claimant, or

21

within thirty days following timely receipt of any

22

supplemental documents or information from the claimant,

23

USCIS and/or EOIR will send a Final Notice, as described

24

in clause (I) above, to the claimant and/or his or her counsel

25

of record.

26

27

v. Should any dispute remain after an individual ABT

28 claimant has undertaken the dispute resolution mechanism in subparagraph (b) above, the

29 parties may negotiate in good faith to resolve any such remaining disputes within thirty

30 (30) days from when USCIS and/or EOIR mailed the Final Notice under subparagraph

31 (b)(iv) above. By way of example and not limitation, if a claim is granted, but the

32 complaining party believes that the corrective action described in the Final Notice

33 granting the claim is insufficient to correct error, he or she may attempt to negotiate a

34 resolution of that dispute.

35

36

vi. Should the parties be unable to resolve a dispute, and

37 following implementation of the provisions of subparagraphs (b)(i) – (v) above,

38 individual ABT claimants may apply to the Court for enforcement of this

39 Agreement. The parties agree that individual ABT claimants shall not apply to the Court

40 for enforcement of the Agreement until applicable procedures detailed in subparagraph

41 (b) above have been exhausted, and subject to the further terms and limitation provided in

42 this Section II.C.11. The individual ABT claimants shall notify the Defendants of their

43 intent to do so before applying to the Court for the enforcement of the Agreement.

44

45

c. All claims arising under this Agreement, pursuant to subparagraph

46 (a) above must be raised by Class counsel as soon as possible, but no later than 180 days

47

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1 after discovery of the claim; or in the case of individual ABT claimants seeking to

2 implement the Individual ABT Claim Review process pursuant to subparagraph (b)

3 above, as soon as possible, but by no later than 180 days following the denial of an

`

4 application for employment authorization, based on an alleged violation of the terms

5 provided under this Agreement.

6

7

d. The Parties agree that the provisions in Section II.C.11. will not be

8 used to resolve any disputes regarding timeliness of the reports listed in Section II.C.13.

9 of the Agreement. The Parties agree that failure to comply with the time periods or

10 deadlines described in Section II.C.11. shall not constitute separate violations of this

11 Agreement; however, if a responding party fails to respond to a claim presented in 12 Section II.C.11. within the prescribed time period or by the required deadline, the 13 complaining party may proceed to seek further review of the claim from the Court, or as 14 otherwise provided in this Agreement. 15

16

e. Defendants agree to use reasonable and good faith efforts to

17 implement the procedures described in this Agreement in a manner that avoids

18 unnecessary interruption of asylum seekers’ employment authorization where eligible, 19 and that facilitates eligible asylum applicants’ ability to provide documentation in 20 accordance with the requirements of 8 U.S.C. § 1324a(b) and 8 C.F.R. § 274a.2. 21

22

f. The Parties agree that these dispute resolution terms in Section

23 II.C.11. of this Agreement will terminate 180 days after the Termination Date of the

24 Agreement under Section II.C.14. of this Agreement and, subject to the limitations

25 described in subparagraph (c) above, all pending claims have been resolved under this 26 paragraph. 27

28

12. Applicable Law. This Agreement and its terms shall be construed in

29 accordance with the law of the United States of America and the United States Court of

30 Appeals for the Ninth Circuit.

31

32

13. Periodic Reporting of Defendants. Because full implementation of each of

33 the terms of this Agreement will take time (with settlement terms referenced in Sections

34 III.A.1. and III.A.2., below, taking up to twenty-four (24) months from the Effective Date

35 of this Agreement), Defendants agree to submit reports every six (6) months to Plaintiffs

36 and file them with the Court detailing the progress made towards implementation of the

37 settlement terms. When Defendants determine that a settlement term is fully

38 implemented, they shall submit a report explaining the reasons for this conclusion to

39 Plaintiffs and file it with the Court.

40

41

14. Termination Date. This Agreement and all of its terms, and all rights

42 acquired hereunder, shall end either four (4) years following the full implementation of

43 all the terms of Agreement, as documented by Defendants’ reports to Plaintiffs and the

44 Court with respect to each settlement term (described in Section II.C.13., above) of this

45 Agreement, or upon the following date: the Effective Date of this Agreement plus six (6)

46 years, whichever shall first occur.

47

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1

2

15. Nothing in this Agreement shall prevent Defendants EOIR and/or USCIS

3 from amending their regulations, manuals, policies, procedures, and/or practices as

`

4 necessary or for purposes of complying with applicable statutory changes and/or

5 precedential decisions, provided that Defendants continue to comply with all of their

6 obligations under the terms of this Agreement. Should either Defendant determine that a

7 change in law, whether statutory or by precedent decision, necessitates a change in their

8 regulations, manuals, policies, procedures, and/or practices that would conflict with one

9 or more of its obligations under the Agreement, the Parties shall attempt to reach an

10 agreement with respect to the Defendant’s continuing obligations under the Agreement

11 and/or any amendments to this Agreement, pursuant to procedures outlined in Section 12 II.11.a. of this Agreement. Should the Parties fail to agree, the question of how the 13 Defendant’s continuing obligations under the Agreement are affected by the change in 14 the law will be submitted to the Court pursuant to Section II.11.a.iv. of this Agreement. 15

16

III. TERMS OF THE AGREEMENT

17

18 A. By this Agreement, Defendants have agreed to modify certain of their processes, 19 policies, procedures, and practices. The terms of this Agreement shall apply to members 20 of the Class commencing from the date upon which each of the changes, including 21 interim changes, described herein are implemented, as further described below. 22

23

1. Notice & Review Claim.

24

25

a. Defendant EOIR will amend the November 15, 2011, Operating

26 Policies and Procedures Memorandum 11-02: The Asylum Clock from Chief

27 Immigration Judge Brian O'Leary, to state that an immigration judge must make the

28 reason(s) for the case adjournment clear on the record. Furthermore, Defendants will

29 provide general information, jointly produced by Defendants EOIR and USCIS, who

30 shall work in good faith with Plaintiffs’ counsel, regarding employment authorization for

31 individuals with pending asylum applications, including where to obtain case-specific

32 information, the impact of hearing adjournment codes on EAD eligibility, and where to

33 direct inquiries relating to requests to correct hearing adjournment codes and inquiries

34 relating to EAD eligibility. Defendant EOIR will provide the notice to an asylum

35 applicant when an asylum application is lodged or filed with an immigration court. In

36 addition, EOIR will make a copy of the notice available at each hearing. USCIS will

37 make the information publicly available, including providing the notice to an asylum

38 applicant upon referral. While the content of the EAD denial letter cannot be determined

39 at this time, USCIS agrees to consider in good faith input from Plaintiffs’ counsel as to

40 the language and content of the EAD denial letter.

41

42

b. Defendants will amend the November 15, 2011, Operating Policies

43 and Procedures Memorandum 11-02: The Asylum Clock from Chief Immigration Judge

44 Brian O'Leary, within six (6) months of the Effective Date of this Agreement. With

45 regard to the remaining resolutions described in subparagraph (a) above, Defendants will

46

47

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1 implement these resolutions as soon as possible, but no later than twenty-four (24)

2 months from the Effective Date of this Agreement.

3

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c. In the interim, Defendants will implement the following

5 procedures to provide relief to affected Class members: Defendants will work with

6 Plaintiffs’ counsel to create an interim notice regarding employment authorization for

7 individuals with pending asylum applications within six (6) months of the Effective Date

8 of this Agreement. Defendants will also provide contact information for inquiries

9 regarding requests to correct the calculation of the asylum adjudications period before the

10 Asylum Office, hearing adjournment codes before the immigration court, and asylum-

11 related EAD denials. 12

13

d. Class members who have appeared or who will appear before

14 EOIR or USCIS prior to the Defendants’ implementation of these settlement terms shall

15 not have a cause of action against the Defendants arising from the fact that they were not

16 previously afforded the relief described herein as pertains to the Notice and Review

17 Claim.

18

19

e. The interim and final relief described in this Agreement in Section

20 III.A.1. shall apply prospectively to Notice and Review Class members at the time that

21 these settlement terms are implemented.

22

23

2. Hearing Claim.

24

25

a. Defendant EOIR will accept complete defensive asylum

26 applications at the immigration court clerk's window as “lodged not filed.” EOIR will

27 transmit the “lodged not filed” date to USCIS. The applicant will submit a Form I-765,

28 Application for Employment Authorization, to USCIS, along with a copy of the asylum

29 application that the EOIR immigration court clerk stamped “lodged not filed.” An asylum

30 applicant may only lodge a complete asylum application once. If an asylum application is

31 lodged, it must be lodged before that application is filed with an immigration judge. The

32 requirement that an asylum application be filed before an immigration judge will not

33 change. Defendant EOIR considers the asylum application “filed” on the date an

34 immigration judge accepts the application at a hearing. Defendant USCIS will consider

35 the date on which the asylum application was “lodged not filed” at the EOIR clerk’s

36 window as an application filing date for the purpose of calculating the time period for

37 EAD eligibility. Defendants will implement these resolutions as soon as possible but no

38 later than twenty-four (24) months from the Effective Date of this Agreement.

39

40

b. In the interim, Defendants will implement the following

41 procedures to provide relief to affected Class members: If an asylum application is

42 submitted to an immigration court outside of a hearing before an immigration judge, the

43 asylum application will be stamped “lodged not filed” by a clerk at the EOIR court at

44 which the application is lodged. When filing a Form I-765, Application for Employment

45 Authorization, with USCIS, the applicant will submit a copy of the asylum application

46 that an EOIR immigration clerk stamped “lodged not filed.” In adjudicating the

47

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1 application for employment authorization, USCIS will consider the date on which the

2 application was stamped “lodged not filed” as the application filing date for the purpose

3 of calculating the time period for EAD eligibility. Defendants will implement these

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4 resolutions within six (6) months of the Effective Date of this Agreement.

5

6

c. Hearing Subclass members who are or will be in immigration

7 proceedings before EOIR prior to the Defendants’ implementation of these settlement

8 terms shall not have a cause of action against the Defendants arising from the fact that

9 they were not previously afforded the relief described herein as pertains to the Hearing

10 Claim.

11

12

d. The interim and final relief described in this Agreement at Section

13 III.A.2. shall apply prospectively to Hearing Subclass members whose asylum

14 applications have not previously been deemed filed by an immigration judge at a hearing

15 at the time that these settlement terms are implemented.

16

17

3. Prolonged Tolling Claim.

18

19

a. Defendant EOIR will amend the November 15, 2011, Operating

20 Policies and Procedures Memorandum 11-02: The Asylum Clock from Chief

21 Immigration Judge Brian O’Leary, to change section VI.E.2.c. (“Proceedings Before the

22 Immigration Court: Offering Future Hearing Dates: Expedited Cases: Offering an

23 ‘Expedited Asylum Hearing Date’”) from “minimum of 14 days should be allowed” to

24 “minimum of 45 days must be allowed.” Defendant EOIR will add an exception for

25 detained cases, in which the “minimum of 14 days” time period will remain. Defendants 26 will implement these resolutions within six (6) months of the Effective Date of this 27 Agreement. 28

29

b. Prolonged Tolling Subclass members who have appeared or who

30 will appear before EOIR prior to the Defendants’ implementation of these settlement

31 terms shall not have a cause of action against the Defendants arising from the fact that

32 they were not previously afforded the relief described herein as pertains to the Prolonged

33 Tolling Claim.

34

35

c. The interim and final relief described in this Agreement in Section

36 III.A.3. shall apply to prolonged tolling Subclass members in immigration proceedings

37 who have not had their merits hearing calendared for the first time before EOIR at the

38 time these settlement terms are implemented, and shall apply prospectively.

39

40

4. Missed Asylum Interview Claim.

41

42

a. Defendant USCIS will mail a “Failure to Appear” Warning Letter

43 as soon as possible after an asylum applicant misses an interview. The letter will describe

44 the effect of the failure to appear on EAD eligibility and list procedural steps the

45 applicant must take to establish “good cause” for failing to appear for the interview. It

46

47

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Case 2:11-cv-02108-RAJ Document 60-1 Filed 05/06/13 Page 18 of 21

1 will also describe the effect of failing to respond to the warning letter within a forty-five

2 (45) day period.

3

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b. Defendant USCIS will extend the period prior to issuance of a

5 decision (including a referral letter) from fifteen (15) to forty-five (45) calendar days,

6 during which time submission of an excuse for missing an interview will be treated as a

7 request to reschedule under the Asylum Division’s Affirmative Asylum Procedures

8 Manual and the “good cause” standard will apply.

9

10

c. Defendant USCIS will include a new “Referral Notice for Failure

11 to Appear” with charging documents mailed to the applicant. This notice will describe the 12 effect of the failure to appear on EAD eligibility and list procedural steps the applicant 13 must take to establish “exceptional circumstances” with an Asylum Office. 14

15

d. Defendants will provide Plaintiffs' counsel with drafts of the

16 “Failure to Appear” Warning Letter and the “Referral Notice for Failure to Appear” and

17 will consider their input in good faith before finalizing these documents.

18

19

e. Defendant USCIS will revise the process of establishing

20 exceptional circumstances with an Asylum Office as follows. Upon determining whether

21 exceptional circumstances exist, the Asylum Office will issue a determination letter to the

22 applicant and/or his or her representative of record, and notify ICE OPLA of the

23 determination. If the Asylum Office determines that exceptional circumstances exist, the

24 applicant may then request that ICE OPLA file a joint motion for dismissal of

25 immigration proceedings. If the proceedings are dismissed, and the asylum application is 26 returned to the Asylum Office, the Asylum Office will reopen the asylum application and 27 take jurisdiction over the applicant’s case. 28

29

f. Defendant USCIS will restart the 180-day time period for

30 determining asylum adjudication and EAD eligibility following the resolution of the

31 missed interview based on exceptional circumstances. If the applicant establishes

32 exceptional circumstances, and the application is returned to the Asylum Division, the

33 time period for determining asylum adjudication and EAD eligibility, which stopped on

34 the date of the failure to appear, would restart on the date the applicant appears for the

35 rescheduled interview at an Asylum Office.

36

37

g. Defendants will implement these resolutions in subparagraph (a) –

38 (f) within six (6) months of the Effective Date of this Agreement.

39

40

h. Missed Asylum Interview Subclass members who have appeared

41 or who will appear before USCIS prior to the Defendants’ implementation of the

42 settlement terms shall not have a cause of action against the Defendants arising from the

43 fact that they were not previously afforded the relief described herein as pertains to the

44 Missed Asylum Interview Claim.

45

46

47

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1

i. The relief described in this Agreement in Section III.A.4., shall

2 apply to Missed Asylum Interview Subclass members who have filed or will file an

3 asylum application with USCIS and who have not yet had that application referred to an

`

4 immigration judge at the time that the Defendants implement these settlement terms, and

5 shall apply prospectively. This paragraph does not preclude any Class member from

6 seeking relief under the provisions of the Affirmative Asylum Procedures Manual dated

7 November 2007 (revised July 2010) pre-dating this Agreement in Section I (1), page. 91-

8 92, regarding post-referral review of exceptional circumstances.

9

10

11

12

13

5. Remand Claim.

14

15

a. Following a BIA remand of a case for the adjudication of an

16 asylum claim, whether on appeal from an immigration judge decision or following a

17 remand from a U.S. Court of Appeals, for purposes of EAD eligibility, the applicant will

18 be credited with the number of days that elapsed between the initial immigration judge 19 denial and the date of the BIA remand order. An asylum applicant seeking employment 20 authorization must attach a copy of the complete BIA order remanding the case for the 21 adjudication of an asylum claim to the immigration court to his or her application for 22 employment authorization. 23

24

b. Remand Subclass members who have appeared or who will appear

25 before EOIR prior to the Defendants’ implementation of these settlement terms shall not 26 have a cause of action against the Defendants arising from the fact that they were not 27 previously afforded the relief described herein as pertains to the Remand Claim. 28

29

c. The relief described in this Agreement in Section III.A.5. shall

30 apply to all Remand Subclass members whose asylum cases have been remanded and

31 whose asylum cases are pending before EOIR at the time the Defendants implement these

32 settlement terms, and shall apply prospectively.

33

34 B. EADs for Named Plaintiffs. The named plaintiffs and relatives of named 35 plaintiffs who received limited 240-day EADs pursuant to the Parties’ earlier agreement 36 will remain eligible for one-year renewals of their EADs for so long as their asylum 37 applications remain pending. 38

39

40 IN WITNESS WHEREOF, the Parties have executed this Agreement, which may be 41 executed in counterparts and the undersigned represent that they are authorized to execute 42 and deliver this Agreement on behalf of the respective Parties. 43

44 Consented and agreed to by: 45

46 DATED: April 12, 2013 47

Respectfully submitted,

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CV11-2108-RAJ Settlement Agreement, Page 20

STUART F. DELERY Acting Assistant Attorney General Civil Division
DAVID J. KLINE Director
COLIN A. KISOR Deputy Director

/s/ J. Max Weintraub J. MAX WEINTRAUB Senior Litigation Counsel United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 305-7551 Fax: (202) 305-7000 Email: jacob.weintraub@usdoj.gov

JENNY A. DURKAN United States Attorney

/s/ Priscilla T. Chan PRISCILLA T. CHAN, WSBA# 28533 Assistant United States Attorney Western District of Washington 700 Stewart Street, Suite 5220 Seattle, Washington 98101-1271 Phone: 206-553-7970 Fax: 206-553-4073 Email: priscilla.chan@usdoj.gov Attorneys for Defendants

s/ Matt Adams s/ Christopher Strawn Matt Adams #28287 Christopher Strawn #32243 NORTHWEST IMMIGRANT PROJECT 615 2nd Avenue, Suite 400

RIGHTS

Case 2:11-cv-02108-RAJ Document 60-1 Filed 05/06/13 Page 21 of 21

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CV11-2108-RAJ Settlement Agreement, Page 21

Seattle, WA 98104 (206) 587-4009 ext. 111 (206) 587-4025 (Fax) Email: matt@nwirp.org Email: chris@nwirp.org
Melissa Crow Mary Kenney Emily Creighton AMERICAN IMMIGRATION COUNCIL 1331 G Street NW, Suite 200 Washington, DC 20005 (202) 507-7512 (202) 742-5619 (Fax) Email: mcrow@immcouncil.org Email: mkenney@immcouncil.org Email: ecreighton@immcouncil.org
Robert H. Gibbs Robert Pauw GIBBS HOUSTON PAUW 1000 Second Avenue, Suite 1600 Seattle, WA 98104 (206) 224-8790 (206) 689-2270 (Fax) Email: rgibbs@ghp-law.net Email: rpauw@ghp-law.net
Iris Gomez MASSACHUSETTS LAW REFORM INSTITUTE 99 Chauncy Street, Suite 500 Boston, MA 02111 (617) 357-0700 x. 331 (617) 357-0777 (Fax) Email: igomez@mlri.org Attorneys for Plaintiffs

 
 Case 2:11-cv-02108-RAJ Document 40 Filed 07/20/12 Page 1 of 11

1

HONORABLE RICHARD A. JONES

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9 A.B.T., K.M.-W., G.K., L.K.G., D.W.,
10 Individually and on Behalf of All 11 Others Similarly Situated,

12

Plaintiffs,

13

v. U.S. CITIZENSHIP AND

14 IMMIGRATION SERVICES;

EXECUTIVE OFFICE FOR 15 IMMIGRATION REVIEW; Janet

16 NAPOLITANO, Secretary, Department of Homeland Security;

17 Alejandro MAYORKAS, Director,

18

U.S. Citizenship and Immigration Services; Eric H. HOLDER, Jr.,

19 Attorney General of the United States;

Juan OSUNA, Director, Executive 20 Office for Immigration Review,

CASE NO. 2:11-cv-02108 RAJ
ORDER GRANTING PLAINTIFF’S MOTION FOR A PROTECTIVE ORDER FOR REDACTION OF THEIR NAMES EXCEPT FOR FIRST INITIALS

21 Defendants.
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24

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26

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- 1

Case 2:11-cv-02108-RAJ Document 40 Filed 07/20/12 Page 2 of 11

1

I. INTRODUCTION

2

This matter comes before the court on plaintiffs’ motion for a protective order.

3 Dkt. # 12.1 Plaintiffs seek an order permitting them and requiring defendants to use the

4 initials of the plaintiffs’ first and last names in all filings so plaintiffs’ identities remain

5 confidential. Defendants, the U.S. Citizenship and Immigration Services; the Executive

6 Office for Immigration Review; Janet Napolitano, Secretary of the Department of

7 Homeland Security; Alejandro Mayorkas, Director, U.S. Citizenship and Immigration

8 Services; Eric H. Holder, Jr. Attorney General of the United States; and Juan Osuna,

9 Director of the Executive Office for Immigration Review (collectively, “Defendants”)

10 oppose the motion on the basis that (1) plaintiffs fail to meet Advanced Textile standards

11 to proceed anonymously, (2) the Constitution and Federal Rules counsel against

12 anonymous filing, (3) anonymous filing runs counter to common law, and (4) federal

13 regulations favor denying the motion to file anonymously. Dkt. # 22 (Answer) at 2-5.

14 Having reviewed the memoranda, exhibits, and the record herein, the court GRANTS the

15 motion.

16

II. BACKGROUND

17

Plaintiffs are all noncitizens who have filed applications for asylum with

18 Defendants. Dkt. # 12 (Mot.) at 2. On December 15, 2011, plaintiffs filed a putative

19 class action complaint challenging the constitutionality of the Defendants’ practices

20 involving their efforts to obtain Employment Authorization Documents while they seek

21 asylum in removal proceedings. Dkt. # 1 (Compl.) ¶¶ 2-7. Plaintiffs also allege that

22 Defendants’ policies and practices violate the Immigration and Nationality Act and the

23 Administrative Procedure Act. Id. ¶ 4. On December 23, 2011, Plaintiffs moved for a

24 Protective Order for Redaction of Plaintiffs’ Names Except for First Initials. Dkt. # 12

25

26 1 The court also addresses the parties’ recently filed stipulation to stay the proceedings in the
27 conclusion. Dkt. # 38.

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Case 2:11-cv-02108-RAJ Document 40 Filed 07/20/12 Page 3 of 11

1 (Mot.). Plaintiffs allege that they have been persecuted or that they fear persecution in

2 their home countries. Dkt. # 1 (Compl.) ¶ 1. Some of the plaintiffs previously initiated

3 judicial proceedings using their full names and alien numbers and are identified in public

4 PACER/ECF pages. Dkt. # 22 (Answer) at 3. Plaintiffs represent that Defendants have

5 received a copy of the complaint with plaintiffs’ full names and alien numbers. Dkt. # 27

6 (Reply) at 3.

7

Plaintiffs A.B.T., K.M.-W., L.K.G. are citizens of Eritrea. Dkt. # 1 (Compl.) ¶¶

8 12, 13, 15. A.B.T first arrived in the United States on September 14, 2010. Id. ¶ 52.

9 Upon her arrival, a Department of Homeland Security (“DHS”) agent determined A.B.T.

10 had a credible fear of persecution if she returned to Eritrea. Id. A.B.T. alleges that she

11 fled from Eritrea to escape past persecution and threats of future persecution due to her

12 political opinion and membership in a social group of Eritrean women who have been

13 subjected to gender-based violence. Id. A.B.T. claims that she escaped from the Eritrean

14 National Service and fears that they will arrest and possibly kill her if she returns to

15 Eritrea. Dkt. # 27, Ex. 1 (A.B.T Decl.) at 2. A.B.T. also claims that the Eritrean

16 government has questioned her family in Eritrea to determine A.B.T.’s whereabouts and

17 that her family hid her asylum status by stating that A.B.T. was in the Eritrean National

18 Service. Id.

19

K.M.-W. arrived in the United States on December 17, 2009. Dkt. # 1 (Compl.) ¶

20 59. K.M.-W. alleges that he fled from Eritrea to escape past persecution and threats of

21 future persecution due to his political opinion. Id. Upon his arrival, a DHS officer

22 determined K.M.-W. had a credible fear of persecution if he returned to Eritrea. Id.

23

L.K.G. arrived in the United States on January 11, 2007. Id. ¶ 79. She alleges that

24 she fled from Eritrea to escape past persecution and threats of future persecution due to

25 her political opinion. Id. On January 23, 2007, the U.S. Citizenship and Immigration

26 Services determined she credibly feared persecution if she returns to Eritrea. Id. L.K.G.

27 claims she escaped from the Eritrean military, and they continue to contact her family in

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Case 2:11-cv-02108-RAJ Document 40 Filed 07/20/12 Page 4 of 11

1 Eritrea to inquire about her whereabouts. Dkt. # 27, Ex. 2 (L.K.G. Decl.) at 2. To

2 conceal her whereabouts from the Eritrean government, L.K.G. claims that she avoids

3 large public gatherings and being photographed in public. Id.

4

Plaintiff D.W. is a citizen of China. Dkt. # 1 (Compl.) ¶ 16. D.W. first arrived in

5 the United States on September 21, 2002. Id. He claims that he fled from China to

6 escape past persecution and threats of future persecution due to his religion. Id. ¶ 88.

7 D.W. claims that when he was in China, police officers arrested and beat him for hosting

8 Bible studies. Dkt # 27, Ex. 4 (D.W. Decl.) at 000329. D.W. claims his wife and

9 daughter are still in China and he fears for their safety. Id. D.W. believes police officers

10 continue to interrogate his wife in an effort to find him. Id.

11

Plaintiff G.K. is a citizen of India. Dkt. # 1 (Compl.) ¶ 14. G.K. arrived in the

12 United States on April 17, 2001. Id. G.K. claims that she fled from India to escape past

13 persecution and threats of future persecution due to her religion and political opinion. Id.

14 ¶ 70. G.K. fears for the safety of her family who reside in India. Dkt. # 27, Ex. 3 (G.K.

15 Decl.) at 2.

16

III. ANALYSIS

17

In judicial proceedings, the common law right of access to courts and judicial

18 records is well-established. Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate,

19 596 F.3d 1036, 1042 (2010). Generally, parties are to be identified by their real names in

20 all court filings. See Fed. R. Civ. P. 10(a). Nevertheless, the Ninth Circuit has held that

21 “in special circumstances,” the district court may preserve a party’s anonymity if the

22 party’s need for anonymity outweighs the prejudice to the opposing party and the

23 public’s interest in knowing the party’s identity. Does I thru XXIII v. Advanced Textile

24 Corp., 214 F.3d 1058, 1068 (9th Cir. 2000). To determine whether a party may proceed

25 anonymously when the opposing party has objected, five factors must be balanced: (1)

26 the severity of the retaliatory harm, (2) the reasonableness of the anonymous party’s fears

27

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Case 2:11-cv-02108-RAJ Document 40 Filed 07/20/12 Page 5 of 11

1 (3) the anonymous party’s vulnerability to the retaliation, (4) the prejudice to the

2 opposing party, and (5) the public interest. Kamehameha Schools, 596 F.3d at 1042.

3 A. Severity of Retaliatory Harm

4

To be sufficiently severe, the threat of retaliatory harm must be extraordinary and

5 greater than what the typical plaintiff would face. Advanced Textile Corp., 214 F.3d at

6 1070. Retaliation may include harm by third parties, reprisals against nonparties and

7 economic harm. Id.

8

Here, plaintiffs’ respective declarations describe the possible retaliatory harms.

9 A.B.T. claims that if she is identified in this suit, it will be easier for the Eritrean

10 government to learn that she is a National Service deserter, and that they may arrest and

11 kill her if she is forced to return to Eritrea. Dkt. # 27, Ex. 1 (A.B.T. Decl.) at 2. She

12 claims that identification may also lead the Eritrean government to increase scrutiny of

13 her family in Eritrea which may lead to their arrest and imprisonment. Id. at

14 2. Similarly, L.K.G. claims that his identification would put him “in great danger”

15 because the Eritrean military will know he is a military deserter and an asylum seeker.

16 Dkt. # 27, Ex. 2 (L.K.G. Decl.) at 2. His identification may also cause the Eritrean

17 government to arrest and imprison his family and demand money for their release. Id. If

18 L.K.G.’s family were arrested, L.K.G. claims that they may be held indefinitely because

19 he does not have the money to pay for their release. Id. D.W. claims that he will “be

20 finished” if he is identified and forced to return to China. D.W. also believes his

21 identification will jeopardize the safety of his wife and child. Dkt. # 27, Ex. 4 (D.W.

22 Decl.) at 000329. G.K. claims that if she is identified and forced to return to India, she

23 will be in danger of future persecution. Dkt. # 27, Ex. 3 (G.K. Decl.) at 3. She claims

24 that identification would also jeopardize the safety of her parents and siblings in India.

25 Id.

26

Plaintiffs have shown that the severity of threatened harm is great. If the plaintiffs

27 are identified and forced to return to their home countries, the plaintiffs may be

ORDER GRANTING PLAINTIFF’S MOTION FOR A PROTECTIVE ORDER FOR REDACTION OF THEIR NAMES EXCEPT FOR FIRST INITIALS- 5

Case 2:11-cv-02108-RAJ Document 40 Filed 07/20/12 Page 6 of 11

1 persecuted, imprisoned under hostile conditions, tortured, or killed. See Dkt. # 27, Exs. 1

2 at 2, 2 at 2, 3 at 3, 4 at 000327, 000329; see also Dkt. # 27, Exs. 9-14. Their

3 identification in this suit may also jeopardize the freedom and physical safety of the

4 plaintiffs’ families, and may cause their families substantial economic harm. Dkt. # 27,

5 Exs. 1 at 2, 2 at 2, 3 at 3, 4 at 000327, 000329.

6 B. Plaintiffs’ Reasonable Fear

7

A party’s fear of retaliatory harm must be objectively reasonable: plaintiffs must

8 demonstrate that they were threatened and a reasonable person would believe that the

9 threat might be carried out. Advanced Textile Corp., 214 F.3d at 1071. Each party does

10 not have to demonstrate an “individualized risk of retaliation.” Id. at 1069 n.11. Rather,

11 evidence that similarly-situated individuals possess a reasonable fear of severe retaliation 12 is sufficient to warrant their anonymity.2 Id.

13

Official reports of Eritrea government and military retaliation against nonparties

14 similarly-situated to plaintiffs support the reasonableness of A.B.T.’s, K.M.-W.’s and

15 L.K.G.’s fears. Dkt. # 27, Exs. 9-12. The 2010 State Department Human Rights Report

16 states that repatriated Eritrean refugee and asylum seekers, such as those similar to

17 A.B.T., K.M.-W., and L.K.G., have disappeared without information. Dkt. # 27, Ex. 9 at

18 4. Furthermore, the Eritrean government has sanctioned torture methods against military

19 deserters, draft evaders, and persons attempting to flee the country. Id. at 5. The United

20 Nations High Commissioner for Refugees report that family members and relatives of

21 draft evaders and deserters are at risk of persecution due to the Eritrea government’s

22 practices of substituting family members to fulfill the outstanding military service

23 requirements and imposing punitive fines and imprisonment. Dkt. # 27, Ex. 10 at 19-20.

24 Additionally, the DHS’s specific determinations that A.B.T., K.M.-W. and L.K.G. have a

25
26 2 Although K.M.-W. did not provide a declaration of his individualized fears of retaliation, as an asylum seeker from Eritrea, he is similarly situated to A.B.T. and L.K.G. so the reasonableness
27 of their fears may be evaluated together. See Advanced Textile Corp., 214 F.3d at 1069 n.11.

ORDER GRANTING PLAINTIFF’S MOTION FOR A PROTECTIVE ORDER FOR REDACTION OF THEIR NAMES EXCEPT FOR FIRST INITIALS- 6

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1 credible fear of persecution provide additional evidence of these plaintiffs’ reasonable

2 fear of retaliation. Dkt. # 1 (Compl.) ¶¶ 52, 59, 79.

3

Reports of Chinese and Indian persecution support the objective reasonableness of

4 D.W.’s and G.K.’s fears. The 2011 Amnesty International Report on China found that

5 followers of unregistered or banned religious groups similar to D.W. risked harassment,

6 persecution, detention, and imprisonment. Dkt. # 27, Ex. 13 at 105. Such practices lead

7 to ill-treatment including reports of death in custody, sometimes caused by torture. Dkt.

8 # 27, Ex. 13 at 106. The State Department Human Rights and Labor Country Report on

9 India reported instances of the local government holding political prisoners. State Dep’t

10 Bureau of Democracy, India, Human Rights And Labor Country Reports On Human

11 Rights Practices For 2011, http://www.state.gov/documents/organization/186675.pdf

12 (last visited July 20, 2012). Accordingly, plaintiffs have provided evidence to support the

13 objective reasonableness of their fears.

14 C. Plaintiffs’ Vulnerability

15

Vulnerability is established by the party’s dependence on anonymity to avoid

16 retaliatory harm. See Advanced Textile Corp., 214 F.3d at 1071-72 (determining that

17 plaintiffs were vulnerable where court had no ability to protect plaintiffs from reprisals or

18 to protect plaintiffs’ family members who resided in their home country, and where

19 plaintiffs were more effectively protected from retaliation by concealing their identities

20 than by relying on the deterrent effect of post hoc remedies). A party’s status as a

21 vulnerable class member does not automatically establish a vulnerability to retaliation

22 requiring anonymity. See Kamehameha Schools, 596 F.3d at 1045 (determining that

23 plaintiffs did not meet need for anonymity despite being members of a vulnerable class as

24 minors). Correspondingly, the existence of other public records that identify the

25 anonymous party do not automatically defeat a claim of vulnerability either. Advanced

26 Textile Corp., 214 F.3d at 1069 (“[T]he fact that some employees chose to file …

27

ORDER GRANTING PLAINTIFF’S MOTION FOR A PROTECTIVE ORDER FOR REDACTION OF THEIR NAMES EXCEPT FOR FIRST INITIALS- 7

Case 2:11-cv-02108-RAJ Document 40 Filed 07/20/12 Page 8 of 11

1 complaints under their true names does not refute plaintiffs’ evidence that they hold a

2 reasonable fear of retaliation.”).

3

Here, plaintiffs are dependent on anonymity to protect themselves and their

4 families from retaliatory harm if they return to their home countries. Plaintiffs are not

5 vulnerable merely because they are asylum-seekers; plaintiffs are vulnerable because they

6 are citizens of countries that have sanctioned severe retaliatory practices. See Dkt. # 27,

7 Exs. 9-12. Plaintiffs will likely lack access to adequate legal, political or physical

8 protection to defend against or to prevent retaliatory harm if they are forced to return to

9 their respective home countries. See Dkt. # 27, Ex. 1- 4, 9 at 9-10, 10 at 19-20, 12 at 1;

10 Dkt. # 28 (Ex. 11) at 43-44. Furthermore, plaintiffs’ vulnerability to retaliation exists

11 regardless of the existence of other public records in public PACER/ECF pages which

12 identify some of the plaintiffs. See Dkt. # 22 (Answer) at 3; Advanced Textile Corp., 214

13 F.3d at 1069. Accordingly, the court finds that plaintiffs are highly vulnerable to

14 retaliation.

15 D. Prejudice to the Defendants

16

Anonymity must have limited prejudicial effects on the opposing party’s ability to

17 litigate the case and mount a defense. See Advanced Textile Corp., 214 F.3d at 1072. If

18 anonymity is granted, the precise prejudice to the opposing party must be determined at

19 each stage of the proceeding, and proceedings must be structured to mitigate as much

20 prejudice as possible to ensure fairness. Id. At this stage of the proceeding, prejudice to

21 the Defendants is mitigated because plaintiffs represent that Defendants have received a

22 copy of the complaint with plaintiffs’ full names and alien numbers. Dkt. # 27 (Reply) at

23 3. Accordingly, the court finds that anonymity will only marginally affect the

24 defendant’s ability to litigate the case and mount a defense. See Dkt. # 22, (Answer) at 4.

25 E. Public Interest

26

The public interest in anonymity must be weighed against the public interest in

27 open proceedings. See Advanced Textile Corp., 214 F.3d at 1072. Because of the public

ORDER GRANTING PLAINTIFF’S MOTION FOR A PROTECTIVE ORDER FOR REDACTION OF THEIR NAMES EXCEPT FOR FIRST INITIALS- 8

Case 2:11-cv-02108-RAJ Document 40 Filed 07/20/12 Page 9 of 11

1 interest in open judicial proceedings, federal regulations emphasize that anonymity

2 should be granted rarely. See, e.g., 28 C.F.R. § 50.9 (2012) (“There is … a strong

3 presumption against closing proceedings … and the Department of Justice foresees very

4 few cases in which closure would be warranted.”). Nevertheless, there exists a strong

5 public interest in restricting asylum seekers’ identities from the public. See 8 C.F.R. §§ 6 208.6, 1208.6 (2012);3 see also Fed. R. Civ. P. 5.2(c).4 Asylum seekers have the right to

7 keep confidential any information contained in or pertaining to an asylum application that

8 allows a third party to link the identity of the applicant to: (1) the fact that the applicant

9 has applied for asylum; (2) specific facts or allegations pertaining to the individual

10 asylum claim contained in an asylum application; or (3) facts or allegations that are

11 sufficient to give rise to a reasonable inference that the applicant has applied for asylum.

12 8 C.F.R. §§ 208.6, 1208.6 (2012). There are only specific, enumerated exceptions where

13 asylum-related information may be disclosed without plaintiffs’ written consent. See id.

14 Exceptions include, inter alia, disclosure to any Federal, State or local court in the United

15 States considering any legal action. Id.

16

Here, anonymity should be granted despite the strong presumption against closing

17 proceedings. Due to the nature of this case, plaintiffs’ identities cannot be separated from

18 the facts and allegations about their asylum applications. See Dkt. # 1 ¶¶ 2-7, 12-16, 52,

19 70, 79, 88. Defendants argue that the court should reject plaintiffs’ motion because this

20

21 3 The Homeland Security Act of 2002 transferred the functions of the Immigration and

22 Naturalization Service (“INS”) to the DHS and retained the functions of the Executive Office for

Immigration Review (“EOIR”) in the Department of Justice. These changes required the 23 reorganization of title 8 of the Code of Federal Regulations to place the INS regulations and the

24

EOIR regulations into separate chapters. Therefore, 8 C.F.R. § 208.6, is duplicated at 8 C.F.R. § 1208.6. Lin v. U.S. Dep’t of Justice 459 F.3d 255, 258 n.1 (2006).

25 4 Fed. R. Civ. P. 5.2 restricts access to electronic files in immigration cases. Nonetheless, any

member of the public has access to the full record of such cases at the courthouse. Fed. R. Civ.

26 P. 5.2(c)(2). Additionally, all orders of the court are available to the public. Fed. R. Civ. P.

5.2(c)(2)(B). Accordingly, a protective order is necessary to preclude disclosure to the general 27 public.

ORDER GRANTING PLAINTIFF’S MOTION FOR A PROTECTIVE ORDER FOR REDACTION OF THEIR NAMES EXCEPT FOR FIRST INITIALS- 9

Case 2:11-cv-02108-RAJ Document 40 Filed 07/20/12 Page 10 of 11

1 case falls within the 8 C.F.R. §§ 208.6, 1208.6 exception where plaintiffs’ identities may

2 be disclosed to the court and Defendants without written permission. Defendants are

3 mistaken. The exception permits disclosure of identities to the courts, but it does not

4 permit disclosure to the general public. See 8 C.F.R. §§ 208.6, 1208.6. If the court

5 denied plaintiffs’ motion, the court would, in essence, be ordering plaintiffs and 6 Defendants to disclose plaintiffs’ identities to the public.5 See id. Given the clear

7 mandate to protect asylum applicants and to prevent disclosure of their identities to the

8 general public, the court has grave concerns of the role it would play in essentially

9 requiring the parties to violate 8 C.F.R. §§ 208.6, 1208.6.

10

Furthermore, lawsuits that enforce statutes and constitutional rights generally

11 benefit the public. See Advanced Textile Corp., 214 F.3d at 1073. The courts have an

12 interest for such cases to be decided on the merits. See e.g. Plyer v. Doe, 457 U.S. 202

13 (1982) (undocumented immigrants proceeded anonymously in their successful

14 constitutional challenge to a Texas law denying free public grammar school education to

15 undocumented immigrant children); Roe v. Wade, 410 U.S. 959 (1973) (pregnant woman

16 proceeded anonymously in her successful constitutional challenge to a Texas statute 17 criminalizing certain abortions).6 Action that may chill a party’s willingness to litigate

18 constitutional issues and violations of statutes is generally considered against public

19 policy. See Advanced Textile Corp., 214 F.3d at 1073.

20

This case alleges statutory and constitutional violations. Dkt. # 1 ¶¶ 2-7. The

21 court believes that this case should be decided on the merits. Advanced Textile Corp.,

22 214 F.3d at 1073. Considering the severity of the retaliatory harm in this case, forcing

23

24 5 If asylum-related information is properly disclosed to a third party pursuant to 8 C.F.R. § 25 208.6, the third-party recipient is bound by the confidentiality regulations under 8 C.F.R. §
208.6. Dkt. # 27, Ex. 8 (Fact Sheet: Federal Regulations Protecting the Confidentiality of 26 Asylum Applicants) at 5.
6 Plaintiffs in Plyler and Roe proceeded anonymously, but the issue of anonymity was not 27 contested or litigated.

ORDER GRANTING PLAINTIFF’S MOTION FOR A PROTECTIVE ORDER FOR REDACTION OF THEIR NAMES EXCEPT FOR FIRST INITIALS- 10

Case 2:11-cv-02108-RAJ Document 40 Filed 07/20/12 Page 11 of 11

1 plaintiffs to disclose their identity would likely chill their willingness to challenge

2 statutory and constitutional violations. Id. Accordingly, allowing plaintiffs to use their

3 initials will serve the public’s interest in this lawsuit by enabling it to go forward.

4

IV. CONCLUSION

5

For all the foregoing reasons, the court GRANTS plaintiff’s motion for a

6 protective order. Dkt. # 12. The court also GRANTS the parties’ stipulated motion to

7 stay proceedings. Dkt. # 38. The clerk is ORDERED to terminate the pending motions.

8 Dkt. # 13, 31. The parties are ORDERED to file a status report no later than October 25,

9 2012 regarding the status of the case. If the case has not resolved, the parties shall

10 request that the court re-calendar the pending motions for the first Friday thereafter.

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Dated this 20th day of July, 2012.

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The Honorable Richard A. Jones

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United States District Judge

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ORDER GRANTING PLAINTIFF’S MOTION FOR A PROTECTIVE ORDER FOR REDACTION OF THEIR NAMES EXCEPT FOR FIRST INITIALS- 11

 
 A.B.T. v. U.S. Citizenship and Immigration Services, Slip Copy (2013)

2013 WL 5913323 Only the Westlaw citation is currently available. United States District Court, W.D. Washington,
at Seattle.
A.B.T., et al., Plaintiffs, v.
U.S. CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.
No. C11–2108 RAJ. | Nov. 4, 2013.
Attorneys and Law Firms
Christopher Strawn, Matt Adams, Northwest Immigrant Rights Project, Devin T. Theriot–Orr, Robert H. Gibbs, Robert Pauw, Gibbs Houston Pauw, Seattle, WA, Emily Creighton, Mary Kenney, Melissa Crow, American Immigration Council, Washington, DC, Iris Gomez, Boston, MA, for Plaintiffs.
J. Max Weintraub, U.S. Department of Justice, Washington, DC, Priscilla To-Yin Chan, U.S. Attorney’s Office, Seattle, WA, for Defendants.
Opinion
ORDER
RICHARD A. JONES, District Judge.
*1 This matter comes before the court on the parties’ request for final approval of the settlement of this class action, payment of attorney’s fees and costs, and motion to amend certain deadlines in the settlement agreement. Dkt. 60, 69, 72. The court issues this final order to dispose of a class action that challenges defendants’ alleged policies and practices that deprive plaintiffs and other similarly situated of (1) effective, timely notice of determinations relating to the 180–day statutory waiting period before an asylum applicant is eligible to apply for employment authorization; (2) a meaningful opportunity to correct errors in such determination; and (3) the opportunity to obtain a work permit, known as an Employment Authorization Document (“EAD”). On May 8, 2013, the court entered an order of preliminary approval of settlement and scheduled the fairness hearing. Dkt. # 61. On September 20, 2013, the court held a fairness hearing, during which the parties addressed the letter of concern regarding specific language in Section

III.A.5 of the settlement agreement. In response to the letter, and for purposes of clarifying the agreement, the parties proposed a slight revision. The court tentatively approved the revised settlement agreement, pending revised notice to the class of the revision and of the parties’ motion for attorney’s fees. Fed. R. Civ. Proc. 23(h) & 54(d)(2).
The court has received one objection to Section II.C.11.b.ii to the revised settlement agreement. Dkt. # 71. However, this section of the agreement was not revised. Accordingly, the objection was filed beyond the 30–day deadline to object to the original notice, which expired on September 20, 2013. Additionally, the objection addresses an issue which was not raised in the complaint or amended complaint. The settlement agreement cannot resolve claims that are not alleged in the complaint. There is no claim, and, by extension, no class, for individuals whose hearings the immigration courts improperly deem to be expedited. The settlement agreement does not foreclose such asylum applicants from seeking redress through existing procedures. Accordingly, the court overrules the objection.
Defendants have also moved the court for an extension of certain deadlines in the settlement agreement due to the government shutdown. Plaintiffs do not oppose. As a result of the shutdown, defendants were hampered in their ability to implement the provisions of the settlement agreement due to be rolled out six months from the effective date of the agreement (not later than November 8, 2013). Defendants request an extension of those deadlines until December 3, 2013. Specifically, defendants seek to extend deadlines associated with the following:
• Defendants will implement the interim procedures to afford relief to the affected “Hearing Claim” subclass members (relating to the “lodge not filed” relief)
• Defendants will implement the interim procedures to afford relief to the affected “Notice and Review Claim” class members (relating to amending the November 15, 2011, Operating Policies and Procedures Memorandum (OPPM) 11–02: The Asylum Clock from Chief Immigration Judge Brian O’Leary, and the creation of interim notices, including the USCIS and EOIR Joint Notice, regarding employment authorization for individuals with pending applications)
*2 • Defendants will implement the interim procedures to afford relief to the affected “Prolonged
1

A.B.T. v. U.S. Citizenship and Immigration Services, Slip Copy (2013)

Tolling” subclass members (including further amendments to OPPM 11–02)
• Defendants will implement the procedures to afford relief to the affected “Missed Asylum Interview Claim” subclass members
• Defendants will implement the procedures to afford relief to the affected “Remand” subclass members (relating to the inclusion of time after remand of an asylum claim into the calculation for eligibility for employment authorization).
The court believes the requested extension is warranted, and GRANTS defendants’ motion. Dkt. # 72.
The court scheduled a hearing for final approval of the settlement on November 4, 2013. However, the court finds the hearing unnecessary.
The court grants final approval of the settlement. The court finds that the settlement is “fair, reasonable, and adequate.” Fed.R.Civ.P. 23(e)(2). In reaching this finding,

the court concludes that the settlement class meets the prerequisites of Fed.R.Civ.P. 23(a), and that it meets the additional requirements of Fed.R.Civ.P. 23(b)(3), as modified to reflect the resolution of this dispute by settlement as opposed to litigation on the merits.
The court further concludes that the parties provided class members reasonable notice of the settlement and of class counsel’s request for attorney’s fees as well as an opportunity to object to the settlement and the fee request. Fed.R.Civ.P. 23(e)(1), 23(e)(4), 23(h)(1), 23(h)(4).
For all the foregoing reasons, the court GRANTS the unopposed motion to amend certain deadlines in the settlement agreement (Dkt.# 72), the motion for attorney’s fees (Dkt.# 69) and APPROVES settlement of this class action (Dkt. # 60). The court will enter a separate order formally granting approval of the parties’ settlement.
	  

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 1

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 9

10 A.B.T., et al.,

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Plaintiffs,

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v.

13 U.S. CITIZENSHIP AND 14 IMMIGRATION SERVICES, et al.,

CASE NO. C11-2108 RAJ
ORDER APPROVING CLASS ACTION SETTLEMENT

15

Defendants.

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As stated in an accompanying order, the court has given final approval to the

18 settlement agreement reflected in the parties’ Revised Settlement Agreement

19 (“Agreement”). The court issues this order solely to formalize its final approval of the

20 settlement, and to help ensure execution of the settlement. The court has adopted the

21 language of this order largely from the parties’ proposed order approving class action

22 settlement.

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The court finds as follows:

24

1. This court has jurisdiction over the subject matter of the litigation and over

25 all parties to the Agreement, including all members of the Settlement Class.

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27

ORDER APPROVING CLASS ACTION SETTLEMENT- 1

1

2. For purposes of this order, the court adopts the definitions set forth in the

2 Agreement, except as specifically noted in this order.

3

3. On April 17, 2013, the court certified the following class and subclasses

4 (Dkt. # 54):

5

Notice and Review Class: All noncitizens in the United States who meet all

6

of the following criteria: (1) have filed or will file or lodge with Defendants

a complete asylum application; (2) whose asylum applications have neither

7

been approved nor subjected to a denial for which no rights of review or

8

appeal remain; (3) whose applications for employment authorization have been or will be denied; (4) whose eligibility for employment authorization

9

based on a pending asylum application will be determined in a manner that

is alleged to provide insufficient notice and/or opportunity for review; and

10

(5) who fall in one or more of the following Subclasses:

11 Hearing Subclass: Individuals who meet all of the following criteria: (1)

12

who have been or will be issued a Form I-862, Notice to Appear in

13

removal proceedings, or Form I-863, Notice of Referral to an immigration judge; (2) who have filed or lodged, or sought to lodge, or

14

who will lodge or seek to lodge a complete defensive asylum

application with the immigration court prior to a hearing before an

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immigration judge; and (3) whose eligibility for employment

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authorization has been or will be calculated from the date the asylum

application was or will be filed at a hearing before an immigration

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judge.

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Prolonged Tolling Subclass: Asylum applicants who meet all of the

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following criteria: (1) non-detained asylum applicants whose time

creditable toward employment authorization is or will be stopped due to

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delay attributed to them by Defendants; (2) who have allegedly resolved

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the issue causing the delay or will allegedly resolve the issue causing

the delay prior to the next scheduled hearing before an immigration

22

judge; (3) but whose time creditable toward employment authorization

23

remains or will remain stopped until the next hearing date.

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Missed Asylum Interview Subclass: Asylum applicants who meet both

of the following criteria: (1) who have failed or will fail to appear for an

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asylum interview with USCIS; and (2) who have not or will not accrue

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time creditable toward eligibility for employment authorization following the date of the missed asylum interview on account of

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missing that asylum interview.

ORDER APPROVING CLASS ACTION SETTLEMENT- 2

1

Remand Subclass: Asylum applicants who meet both of the following

2

criteria: (1) whose asylum applications were or will be denied by the

immigration court before they have been pending at least 180 days

3

exclusive of applicant caused delays; and (2) who subsequent to an

4

appeal in which either the Board of Immigration Appeals (BIA) or a

federal court of appeals remands their case for further adjudication of

5

their asylum claim by an immigration judge, have not or will not accrue

6

additional time creditable toward eligibility for employment authorization.

7

4. The Notice to the Class given pursuant to the court’s Preliminary Approval

8 Order, Dkt. # 61, and Order Approving Notice on Attorneys’ Fees and Modification of

9 the Agreement, Dkt. # 70, constituted the best notice practicable under the circumstances

10 to all potential members of the Class, and fully complied with Fed. R. Civ. P. 23(e)(1).

11 The court finds that such notice was reasonable, that it constitutes adequate and sufficient

12 notice to all persons entitled to receive notice, and that it meets the requirements of Due

13 Process. Class members were given a full and fair opportunity to address the merits of

14 class counsel’s representation and the adequacy of the terms of the Agreement.

15

5. The court has reviewed the request for clarification and the objection to the

16 Agreement submitted to the court. The court agrees that the revision to the Agreement

17 addresses the request for clarification. The court has heard, considered, and overruled the

18 objection that has been voiced to the Agreement.

19

6. The settlement set forth in the Agreement, which is incorporated herein by

20 reference, is now hereby approved as fair, reasonable, and adequate to all parties and

21 Class members, pursuant to Fed. R. Civ. P. 23(e).

22

7. In reaching its conclusion that the Agreement is fair, reasonable, and

23 adequate, the court has considered, among other things, the following factors: (a) the

24 strength of the Plaintiffs’ case; (b) the risk, expense, and complexity and likely duration

25 of further litigation; (c) the risk of maintaining class action status throughout the trial; (d)

26 the policy changes implemented as part of the Agreement and amount offered in

27

ORDER APPROVING CLASS ACTION SETTLEMENT- 3

1 settlement; (e) the extent of discovery completed and the stage of the proceedings; (f) the

2 experience and views of counsel; (g) the presence of government participants; and (h) the

3 reaction of Class members to the proposed settlement.

4

8. The court reiterates its prior finding, Dkt. # 54, that the Settlement Class

5 satisfies all requirements of Fed. R. Civ. P. 23(a) and 23(b)(2).

6

9. The court reaffirms its appointment of class counsel, Dkt. # 54: Matt

7 Adams and Christopher Strawn, Northwest Immigrant Rights Project (NWIRP); Melissa

8 Crow, Mary Kenney, and Emily Creighton, American Immigration Council (AIC);

9 Robert H. Gibbs and Robert Pauw, Gibbs Houston Pauw; and Iris Gomez, Massachusetts

10 Law Reform Institute (MLRI). The court reiterates its finding that, as required by Fed. R.

11 Civ. P. 23(g), class counsel has fairly, adequately, and competently represented the

12 interests of the Class. The court hereby grants the parties’ request that Defendants pay

13 class counsel attorneys’ fees and costs in the amount of $425,000, to be distributed in

14 accordance with the Agreement.

15

10. Because the lapse in appropriations and the resulting Government

16 shutdown has caused Defendants to require additional time to complete the necessary

17 tasks to implement various provisions of the proposed settlement agreement, and because

18 the parties have agreed that a brief extension neither frustrates the purpose of the

19 agreement, nor is unfair to Class members, the court will extend all deadlines which

20 otherwise would have occurred on November 8, 2013 (i.e., six (6) months after the date

21 the court granted preliminary approval), until December 3, 2013.

22

11. The court shall retain jurisdiction over this matter for purposes of

23 supervising the implementation, enforcement, construction, and interpretation of the

24 Agreement, and specifically as provided in Part II.11 in the Agreement (Dispute

25 Resolution Mechanism).

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ORDER APPROVING CLASS ACTION SETTLEMENT- 4

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Dated this 4th day of November, 2013.

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The Honorable Richard A. Jones United States District Judge

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ORDER APPROVING CLASS ACTION SETTLEMENT- 5

 
 Case 2:11-cv-02108-RAJ Document 54 Filed 04/17/13 Page 1 of 4

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The Honorable Richard A. Jones

United States District Judge
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IN THE UNITED STATES DISTRICT COURT

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FOR THE WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

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10 B.H., M.A., A.S.D., M.F., H.L., L.M.M.M., B.M., 11 G.K., L.K.G., and D.W.,
Individually and on Behalf of All Others 12 Similarly Situated,

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Plaintiffs,

14
v.
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U.S. CITIZENSHIP AND IMMIGRATION 16 SERVICES; EXECUTIVE OFFICE FOR 17 IMMIGRATION REVIEW; Janet NAPOLITANO,
Secretary, Department of Homeland Security; 18 Alejandro MAYORKAS, Director, U.S. Citizenship
and Immigration Services; Eric H. HOLDER, Jr., 19 Attorney General of the United States; Juan OSUNA, 20 Director, Executive Office for Immigration Review,

Case No. 2:11-cv-02108 RAJ
[PROPOSED] ORDER GRANTING JOINT MOTION FOR CLASS CERTIFICATION

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Defendants.

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[PROPOSED] ORDER GRANTING CLASS CERTFICATION - 1 of 4 2:11-cv-02108 RAJ

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:11-cv-02108-RAJ Document 54 Filed 04/17/13 Page 2 of 4

1

Upon consideration of Parties’ Join Motion for Class Certification, Settlement Agreement,

2 and previously filed documents in support of the Motion for Class Certification (Dkt. No. 13, Exh.
3
16-23), and pursuant to Rules 23(a) and 23(b)(2) and 23(g) of the Federal Rules of Civil Procedure,
4
5 the Court certifies the following class and subclasses, and appoints the following as class counsel:

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Notice and Review Class: All noncitizens in the United States who meet all of the following

7

criteria: (1) have filed or will file or lodge with Defendants a complete asylum application;

8
(2) whose asylum applications have neither been approved nor subjected to a denial for
9
which no rights of review or appeal remain; (3) whose applications for employment
10

11

authorization based on their status as asylum applicants have been or will be denied; (4)

12

whose eligibility for employment authorization based on a pending asylum application will

13

be determined in a manner that is alleged to provide insufficient notice and/or opportunity for

14
review; and (5) who fall in one or more of the following subclasses:
15
1) Hearing Subclass: Individuals who meet all of the following criteria: (1) who have
16

17

been or will be issued a Form I-862, Notice to Appear, in removal proceedings or

18

Form I-863, Notice of Referral, to an immigration judge; 2) who have filed or lodged,

19

or sought to lodge, or who will lodge or seek to lodge a complete defensive asylum

20
application with the immigration court prior to a hearing before an immigration
21

judge; and (3) whose eligibility for employment authorization has been or will be
22

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calculated from the date the asylum application was or will be filed at a hearing

24

before an immigration judge.

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2) Prolonged Tolling Subclass: Asylum applicants who meet all of the following

26
criteria: (1) non-detained asylum applicants whose time creditable toward
27

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employment authorization is or will be stopped due to delay attributed to them by

[PROPOSED] ORDER GRANTING CLASS CERTFICATION - 2 of 4 2:11-cv-02108 RAJ

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:11-cv-02108-RAJ Document 54 Filed 04/17/13 Page 3 of 4

1

Defendants; (2) who have allegedly resolved the issue causing the delay or will

2

allegedly resolve the issue causing the delay prior to the next scheduled hearing; (3)

3
but whose time creditable toward employment authorization remains or will remain
4

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stopped until the next hearing date.

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3) Missed Asylum Interview Subclass: Asylum applicants who meet all of the

7

following criteria: (1) who have failed or will fail to appear for an asylum interview

8
with USCIS; and (2) who have not or will not accrue time creditable toward
9
eligibility for employment authorization following the date of the missed asylum
10

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interview on account of missing that asylum interview.

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4) Remand Subclass: Asylum applicants who meet all of the following criteria: (1)

13

whose asylum applications were or will be denied by the immigration court before

14
they have been pending at least 180 days exclusive of applicant caused delays; and
15
(2) who subsequent to an appeal in which either the BIA or a federal court of appeals
16

17

remands their case for further adjudication of their asylum claim by an immigration

18

judge, have not or will not accrue additional time creditable toward eligibility for

19

employment authorization.

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Class counsel:
21

Matt Adams 22 Christopher Strawn
23 NORTHWEST IMMIGRANT RIGHTS PROJECT 615 2nd Avenue, Suite 400
24 Seattle, WA 98104

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[PROPOSED] ORDER GRANTING CLASS CERTFICATION - 3 of 4 2:11-cv-02108 RAJ

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:11-cv-02108-RAJ Document 54 Filed 04/17/13 Page 4 of 4

1 Melissa Crow Mary Kenney
2 Emily Creighton 3 AMERICAN IMMIGRATION COUNCIL
1331 G Street NW, Suite 200 4 Washington, DC 20005
5
Robert H. Gibbs 6 Robert Pauw
GIBBS HOUSTON PAUW 7 1000 Second Avenue, Suite 1600 8 Seattle, WA 98104
9 Iris Gomez MASSACHUSETTS LAW REFORM INSTITUTE
10 99 Chauncy Street, Suite 500 11 Boston, MA 02111

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Dated this 17th day of April, 2013.
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The Honorable Richard A. Jones

United States District Judge

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27

28
[PROPOSED] ORDER GRANTING CLASS CERTFICATION - 4 of 4 2:11-cv-02108 RAJ

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

 
 CLOSED,DOCUMENTS ARE RESTRICTED TO CASE PARTICIPANTS AND PUBLIC TERMINALS IN IMMIGRATION CASES,PROTO,STAYED
U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:11-cv-02108-RAJ

A.B.T. et al v. U.S. Citizenship and Immigration Services et al Assigned to: Judge Richard A. Jones Cause: 05:551 Administrative Procedure Act

Date Filed: 12/15/2011 Date Terminated: 11/04/2013 Jury Demand: None Nature of Suit: 465 Other Immigration Actions Jurisdiction: U.S. Government Defendant

Plaintiff A.B.T.

represented by Christopher Strawn NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104 206-957-8628 Fax: 206-587-4025 Email: chris@nwirp.org ATTORNEY TO BE NOTICED

Devin T Theriot-Orr SUNBIRD LAW PLLC 1001 4TH AVENUE, SUITE 3200 SEATTLE, WA 98154 206-962-5052 Fax: 206-681-9663 Email: devin@sunbird.law ATTORNEY TO BE NOTICED

Emily Creighton AMERICAN IMMIGRATION COUNCIL 1331 G STREET NW, SUITE 200 WASHINGTON, DC 20005 202-507-7516 Email: ecreighton@immcouncil.org PRO HAC VICE ATTORNEY TO BE NOTICED

Iris Gomez MASSACHUSETTS LAW REFORM INSTITUTE 99 CHAUNCY STREET, SUITE 500 BOSTON, MA 02111 617-357-0700 Email: igomez@mlri.org PRO HAC VICE

Plaintiff K.M.-W.

ATTORNEY TO BE NOTICED
Mary Kenney AMERICAN IMMIGRATION COUNCIL 1331 G STREET NW, SUITE 200 WASHINGTON, DC 20005 202-507-7512 Email: mkenney@immcouncil.org PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Adams NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104 206-957-8611 Email: matt@nwirp.org ATTORNEY TO BE NOTICED
Melissa Crow AMERICAN IMMIGRATION COUNCIL 1331 G STREET NW STE 200 WASHINGTON, DC 20005 202-507-7523 Email: mcrow@immcouncil.org PRO HAC VICE ATTORNEY TO BE NOTICED
Robert H. Gibbs GIBBS HOUSTON PAUW 1000 SECOND AVE STE 1600 SEATTLE, WA 98104 206-682-1080 Fax: 206-689-2270 Email: rgibbs@ghp-law.net ATTORNEY TO BE NOTICED
Robert Pauw GIBBS HOUSTON PAUW 1000 SECOND AVE STE 1600 SEATTLE, WA 98104 206-682-1080 Fax: FAX 689-2270 Email: rpauw@ghp-law.net ATTORNEY TO BE NOTICED
represented by Christopher Strawn (See above for address)

Plaintiff G.K.

ATTORNEY TO BE NOTICED
Devin T Theriot-Orr (See above for address) ATTORNEY TO BE NOTICED
Emily Creighton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Iris Gomez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Kenney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Adams (See above for address) ATTORNEY TO BE NOTICED
Melissa Crow (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Robert H. Gibbs (See above for address) ATTORNEY TO BE NOTICED
Robert Pauw (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Strawn (See above for address) ATTORNEY TO BE NOTICED
Devin T Theriot-Orr (See above for address) ATTORNEY TO BE NOTICED
Emily Creighton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Iris Gomez (See above for address)

Plaintiff L.K.G.

PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Kenney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Adams (See above for address) ATTORNEY TO BE NOTICED
Melissa Crow (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Robert H. Gibbs (See above for address) ATTORNEY TO BE NOTICED
Robert Pauw (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Strawn (See above for address) ATTORNEY TO BE NOTICED
Devin T Theriot-Orr (See above for address) ATTORNEY TO BE NOTICED
Emily Creighton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Iris Gomez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Kenney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Adams (See above for address) ATTORNEY TO BE NOTICED
Melissa Crow

Plaintiff D.W. individually and on behalf of all others similarly situated
Plaintiff

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Robert H. Gibbs (See above for address) ATTORNEY TO BE NOTICED
Robert Pauw (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Strawn (See above for address) ATTORNEY TO BE NOTICED
Devin T Theriot-Orr (See above for address) ATTORNEY TO BE NOTICED
Emily Creighton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Iris Gomez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Kenney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Adams (See above for address) ATTORNEY TO BE NOTICED
Melissa Crow (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Robert H. Gibbs (See above for address) ATTORNEY TO BE NOTICED
Robert Pauw (See above for address) ATTORNEY TO BE NOTICED

M.F.
Plaintiff H.L.
Plaintiff A.S.D.
Plaintiff L.M.M.M.
Plaintiff B.H.
Plaintiff M.A.

represented by Christopher Strawn (See above for address) ATTORNEY TO BE NOTICED
Matt Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Strawn (See above for address) ATTORNEY TO BE NOTICED
Matt Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Strawn (See above for address) ATTORNEY TO BE NOTICED
Matt Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Strawn (See above for address) ATTORNEY TO BE NOTICED
Matt Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Strawn (See above for address) ATTORNEY TO BE NOTICED
Matt Adams (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Strawn (See above for address) ATTORNEY TO BE NOTICED
Matt Adams (See above for address) ATTORNEY TO BE NOTICED

Plaintiff B.M.
V. Defendant United States Citizenship and Immigration Services
Defendant Executive Ofﬁce for Immigration Review
Defendant Secretary Janet Napolitano Secretary, Department of Homeland Security Defendant Alejandro Mayorkas Director, U.S. Citizenship and Immigration Services Defendant Eric Holder, Jr. Attorney General of the United States Defendant

represented by Christopher Strawn (See above for address) ATTORNEY TO BE NOTICED
Matt Adams (See above for address) ATTORNEY TO BE NOTICED
represented by J. Max Weintraub US DEPARTMENT OF JUSTICE (BOX 868) PO BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-305-7551 Email: jacob.weintraub@usdoj.gov ATTORNEY TO BE NOTICED
Priscilla To-Yin Chan US ATTORNEY'S OFFICE (SEA) 700 STEWART ST STE 5220 SEATTLE, WA 98101-1271 206-553-7970 Email: Priscilla.Chan@usdoj.gov ATTORNEY TO BE NOTICED
represented by J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED
represented by J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED
represented by J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED
represented by J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED

Juan P Osuna Director, Executive Ofﬁce for Immigration Review

represented by J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED

Date Filed 12/15/2011
12/16/2011 12/16/2011 12/16/2011
12/19/2011 12/19/2011 12/19/2011 12/19/2011 12/19/2011
12/19/2011
12/19/2011
12/19/2011
12/20/2011

# Docket Text
1 COMPLAINT against defendant(s) All Defendants (Receipt # 0981-2654970), ﬁled by K.M.-W., L.K.G., D.W., A.B.T., G.K.. (Attachments: # 1 Civil Cover Sheet, # 2 Civil Cover Sheet attachment to civil cover sheet, # 3 Summons AG, # 4 Summons AUSA, # 5 Summons DHS, # 6 Summons EOIR)(Adams, Matt) (Entered: 12/15/2011)
2 NOTICE of Appearance by attorney Devin T Theriot-Orr on behalf of Plaintiffs A.B.T., D.W., G.K., K.M.-W., L.K.G.. (Theriot-Orr, Devin) (Entered: 12/16/2011)
Judge Richard A. Jones added. (DJ) (Entered: 12/16/2011)
3 Summons(es) electronically issued as to defendant(s) Executive Ofﬁce for Immigration Review, Eric Holder, Jr., Alejandro Mayorkas, Janet Napolitano, Juan Osuna, U.S. Citizenship and Immigration Services. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(DJ) (Entered: 12/16/2011)
4 APPLICATION OF ATTORNEY Iris Gomez FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs A.B.T., D.W., G.K., K.M.-W., L.K.G. (Fee Paid) Receipt No. 09812657430. (Adams, Matt) (Entered: 12/19/2011)
5 APPLICATION OF ATTORNEY Melissa Crow FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs A.B.T., D.W., G.K., K.M.-W., L.K.G. (Fee Paid) Receipt No. 09812657458. (Adams, Matt) (Entered: 12/19/2011)
6 APPLICATION OF ATTORNEY Mary Kenney FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs A.B.T., D.W., G.K., K.M.-W., L.K.G. (Fee Paid) Receipt No. 09812657474. (Adams, Matt) (Entered: 12/19/2011)
7 APPLICATION OF ATTORNEY Emily Creighton FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs A.B.T., D.W., G.K., K.M.-W., L.K.G. (Fee Paid) Receipt No. 0981-2657490. (Adams, Matt) (Entered: 12/19/2011)
8 ORDER re 4 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Iris Gomez for A.B.T., D.W., G.K., K.M.-W., and for L.K.G., by William M. McCool. (No document associated with this docket entry, text only.)(DS) (Entered: 12/19/2011)
9 ORDER re 5 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Melissa Crow for A.B.T., D.W., G.K., K.M.-W., and for L.K.G., by William M. McCool. (No document associated with this docket entry, text only.)(DS) (Entered: 12/19/2011)
10 ORDER re 6 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Mary Kenney for A.B.T., D.W., G.K., K.M.-W., and for L.K.G., by William M. McCool. (No document associated with this docket entry, text only.)(DS) (Entered: 12/19/2011)
11 ORDER re 7 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Emily Creighton for A.B.T., D.W., G.K., K.M.-W., and for L.K.G., by William M. McCool. (No document associated with this docket entry, text only.)(DS) (Entered: 12/19/2011)
12 MOTION for Protective Order for Redaction of Their Names Except for First Initials by

12/20/2011
01/05/2012 01/06/2012 01/10/2012
01/25/2012 02/14/2012 02/21/2012 02/21/2012 02/23/2012 03/09/2012 03/09/2012

Plaintiffs A.B.T., D.W., G.K., K.M.-W., L.K.G.. (Attachments: # 1 Proposed Order) Noting Date 1/13/2012, (Adams, Matt) (Entered: 12/20/2011)
13 MOTION to Certify Class by Plaintiffs A.B.T., D.W., G.K., K.M.-W., L.K.G.. Oral Argument Requested. (Attachments: # 1 Exhibit Exhibit List and Exhibits 1 and 15, # 2 Exhibit Exhibit 2, # 3 Errata Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7, # 8 Exhibit Exhibit 8, # 9 Exhibit Exhibit 9, # 10 Exhibit Exhibit 10, # 11 Exhibit Exhibit 11, # 12 Exhibit Exhibit 12, # 13 Exhibit Exhibit 13, # 14 Exhibit Exhibit 14, # 15 Exhibit Exhibit 16, # 16 Exhibit Exhibit 17, # 17 Exhibit Exhibit 18, # 18 Exhibit Exhibit 19, # 19 Exhibit Exhibit 20, # 20 Exhibit Exhibit 21, # 21 Exhibit Exhibit 22, # 22 Exhibit Exhibit 23, # 23 Exhibit Exhibit 24, # 24 Exhibit Exhibit 25, # 25 Exhibit Exhibit 26, # 26 Exhibit Exhibit 27, # 27 Exhibit Exhibit 28, # 28 Proposed Order) Noting Date 1/13/2012, (Adams, Matt) (Entered: 12/20/2011)
14 NOTICE of Appearance by attorney J. Max Weintraub on behalf of Defendants Executive Ofﬁce for Immigration Review, Eric Holder, Jr, Alejandro Mayorkas, Janet Napolitano, Juan Osuna, U.S. Citizenship and Immigration Services. (Weintraub, J.) (Entered: 01/05/2012)
15 STIPULATION AND PROPOSED ORDER EXTENDING DEADLINES AND NOTING DATES by parties. (Weintraub, J.) (Entered: 01/06/2012)
16 ORDER EXTENDING DEADLINES AND NOTING DATES, by Judge Richard A Jones. Defendants' deadline to respond to Plaintiffs' Complaint and ﬁle an Administrative Record is hereby extended until March 14, 2012. The Court RENOTES for February 24, 2012 Plaintiffs' Motion 12 for a Protective Order for Redaction of Their Names Except for First Initials and 13 Motion to Certify Class. (CL) (Entered: 01/10/2012)
17 ORDER REGARDING INITIAL DISCLOSURES, JOINT STATUS REPORT AND EARLY SETTLEMENT. FRCP 26f Conference Deadline is 2/24/2012, Initial Disclosure Deadline is 3/2/2012, Joint Status Report due by 3/9/2012, by Judge Richard A. Jones. (VE) (Entered: 01/25/2012)
18 Stipulated MOTION EXTENDING DEADLINES by Defendants Executive Ofﬁce for Immigration Review, Eric Holder, Jr, Alejandro Mayorkas, Janet Napolitano, Juan Osuna, U.S. Citizenship and Immigration Services. Noting Date 3/23/2012, (Weintraub, J.) (Entered: 02/14/2012)
19 STIPULATION by parties. (Strawn, Christopher) (Entered: 02/21/2012)
20 ORDER granting 18 Stipulated Motion extending deadlines and noting dates; 12 MOTION for Protective Order for Redaction of Their Names Except for First Initials, and 13 MOTION to Certify Class : are renoted for 3/23/2012; response due 3/12/12; reply due on noting date by Judge Richard A Jones.(RS) (Entered: 02/21/2012)
Reset Deadlines -- By agreement of the parties, the following deadlines are reset: Initial Disclosure Deadline is 4/6/2012, Joint Status Report due by 4/13/2012. (VE) (Entered: 02/23/2012)
21 Stipulated MOTION to Extend Deadlines by Defendants Executive Ofﬁce for Immigration Review, Eric Holder, Jr, Alejandro Mayorkas, Janet Napolitano, Juan Osuna, U.S. Citizenship and Immigration Services. (Weintraub, J.) (Entered: 03/09/2012)
***Motion terminated: 21 Stipulated motion is GRANTED. Defendants' deadline to respond to Plaintiffs' Complaint and ﬁle an Administrative Record is extended until

03/12/2012 03/12/2012 03/21/2012 03/23/2012 03/23/2012 04/02/2012
04/03/2012 04/03/2012 04/13/2012 04/19/2012 05/08/2012 05/08/2012 05/21/2012

May 14, 2012. (SS) (Entered: 03/12/2012)
22 RESPONSE, by Defendants Executive Ofﬁce for Immigration Review, Eric Holder, Jr, Alejandro Mayorkas, Janet Napolitano, Juan Osuna, U.S. Citizenship and Immigration Services, to 12 MOTION for Protective Order for Redaction of Their Names Except for First Initials. (Weintraub, J.) (Entered: 03/12/2012)
23 RESPONSE, by Defendants Executive Ofﬁce for Immigration Review, Eric Holder, Jr, Alejandro Mayorkas, Janet Napolitano, Juan Osuna, U.S. Citizenship and Immigration Services, to 13 MOTION to Certify Class. (Weintraub, J.) (Entered: 03/12/2012)
24 Stipulated MOTION to extend deadline and re-note Plaintiffs' motion for a protective order to redact names (Dkt. No. 12) for April 2, 2012 by Plaintiffs A.B.T., D.W., G.K., K.M.-W., L.K.G.. (Attachments: # 1 Proposed Order) Noting Date 3/21/2012, (Strawn, Christopher) (Entered: 03/21/2012)
25 REPLY, ﬁled by Plaintiffs A.B.T., D.W., G.K., K.M.-W., L.K.G., TO RESPONSE to 13 MOTION to Certify Class (Strawn, Christopher) (Entered: 03/23/2012)
26 ORDER by Judge Richard A Jones. Plaintiffs' Motion for a Protective Order for Redaction of Their Names Except for First Initials (ECF No. 12 ) is re-noted for April 2, 2012, with Plaintiffs' reply due on the noting date. (CL) (Entered: 03/23/2012)
27 REPLY, ﬁled by Plaintiffs A.B.T., D.W., G.K., K.M.-W., L.K.G., TO RESPONSE to 12 MOTION for Protective Order for Redaction of Their Names Except for First Initials (Attachments: # 1 Exhibit Exh. 1 - ABT decl., redacted, # 2 Exhibit Exh. 2 - LKG decl., redacted, # 3 Exhibit Exh. 3 - GK decl., redacted, # 4 Exhibit Exh. 4 - DW statement in support of asylum application, redacted, # 5 Exhibit Exh. 5 - Cooper memo, # 6 Exhibit Exh. 6 - Asylum ofﬁcer training course, excerpts, # 7 Exhibit Exh. 7 - Imm. Ct. practice manual, excerpt, # 8 Exhibit Exh. 8 - Langlois memo, # 9 Exhibit Exh. 9 - USDOS Report Eritrea 2010, excerpts, # 10 Exhibit Exh. 10 - UNHCR Eritrea guidelines, excerpts, # 11 Exhibit Exh. 11 - UK Eritrea COI, excerpts, # 12 Exhibit Exh. 12 - HRW Eritrea, # 13 Exhibit Exh. 13 - AI China report, # 14 Exhibit Exh. 14 - BIA practice manual, excerpts)(Strawn, Christopher) (Entered: 04/02/2012)
28 ERRATA re 27 Reply to Response to Motion,,, Corrected Exh. 11 - UK Eritrea COI, excerpt version by Plaintiffs A.B.T., D.W., G.K., K.M.-W., L.K.G.. (Strawn, Christopher) (Entered: 04/03/2012)
29 ERRATA re 27 Reply to Response to Motion,,, List of Exhibits by Plaintiffs A.B.T., D.W., G.K., K.M.-W., L.K.G.. (Strawn, Christopher) (Entered: 04/03/2012)
30 JOINT STATUS REPORT signed by all parties estimated Trial Days: 1/uncertain.. (Strawn, Christopher) (Entered: 04/13/2012)
31 JOINT MOTION FOR PRO BONO MEDIATION ﬁled by Plaintiffs A.B.T., D.W., G.K., K.M.-W., L.K.G., and Defendants Executive Ofﬁce for Immigration Review, Eric Holder, Jr, Alejandro Mayorkas, Janet Napolitano, Juan Osuna, U.S. Citizenship and Immigration Services. Noting Date 4/19/2012. (CL) (Entered: 04/19/2012)
32 STIPULATION TO EXTEND DEADLINE by parties. (Kenney, Mary) (Entered: 05/08/2012)
The parties' stipulation (Dkt. # 32) is GRANTED. Defendant shall ﬁle an answer within 14 days of plaintiffs' ﬁling of the First Amended Complaint.(SS) (Entered: 05/08/2012)
33 AFFIDAVIT of Mailing of Summons and Complaint to All Defendants on 12/16/2011, ﬁled by Plaintiffs A.B.T., D.W., G.K., K.M.-W., L.K.G.. (Theriot-Orr, Devin) (Entered: 05/21/2012)

06/05/2012 06/19/2012
06/19/2012 06/19/2012 07/02/2012
07/03/2012 07/18/2012 07/20/2012
10/25/2012 10/25/2012 11/05/2012 11/29/2012 12/03/2012 12/21/2012 01/18/2013

34 AMENDED COMPLAINT against defendant(s) All Defendants, ﬁled by L.K.G., D.W., G.K., M.F., H.L., A.S.D., L.M.M.M., B.H., M.A., B.M..(Adams, Matt) (Entered: 06/05/2012)
35 NOTICE of Filing Administrative File (INS/ICE "A-File") in Paper or Physical Form with the Clerk's Ofﬁce by Defendants Executive Ofﬁce for Immigration Review, Eric Holder, Jr, Alejandro Mayorkas, Janet Napolitano, Juan Osuna, U.S. Citizenship and Immigration Services. (Chan, Priscilla) (Entered: 06/19/2012)
36 ANSWER to 34 Amended Complaint by Executive Ofﬁce for Immigration Review, Eric Holder, Jr, Alejandro Mayorkas, Janet Napolitano, Juan Osuna, U.S. Citizenship and Immigration Services.(Weintraub, J.) (Entered: 06/19/2012)
37 SEALED ADMINISTRATIVE RECORD ﬁled by Defendants.(CL) (Entered: 06/20/2012)
38 Stipulated MOTION to Stay Proceedings by Defendants Executive Ofﬁce for Immigration Review, Eric Holder, Jr, Alejandro Mayorkas, Janet Napolitano, Juan Osuna, U.S. Citizenship and Immigration Services. (Weintraub, J.) (Entered: 07/02/2012)
39 REPORT from Mediator Michael Reiss regarding partial success of mediation on June 26-27, 2012. (Reiss, Michael) (Entered: 07/03/2012)
***Motion terminated: 31 Joint Motion for Pro Bono Mediation GRANTED. Michael Reiss was appointed as pro bono mediator. (SS) (Entered: 07/18/2012)
40 ORDER by Judge Richard A Jones. The court GRANTS plaintiff's motion for a protective order. Dkt. # 12 . The court also GRANTS the parties' stipulated motion to stay proceedings. Dkt. # 38 . The clerk is ORDERED to terminate the pending motions. Dkt. # 13 , 31 . The parties are ORDERED to ﬁle a status report no later than October 25, 2012 regarding the status of the case. (CL) (Entered: 07/23/2012)
41 NOTICE from Mediator Michael Reiss, that on October 15-16, 2012, the parties participated in a mediation. (Reiss, Michael) (Entered: 10/25/2012)
42 STIPULATION AND PROPOSED ORDER by parties re 41 Notice of Occurrence of Alternate Dispute Resolution. (Attachments: # 1 Proposed Order)(Adams, Matt) (Entered: 10/25/2012)
43 ORDER by Judge Richard A Jones. The court extends the stay of proceedings through November 30, 2012. The parties are ORDERED to ﬁle a status report on or before November 30, 2012. (CL) (Entered: 11/06/2012)
44 Joint MOTION to Stay proceedings by Plaintiffs B.H., B.M., D.W., G.K., H.L., K.M.W., L.K.G., L.M.M.M., M.A., M.F.. (Attachments: # 1 Proposed Order granting stay) Noting Date 11/30/2012, (Strawn, Christopher) (Entered: 11/29/2012)
45 ORDER granting 44 Stipulated Motion to Stay through 12/21/12 by Judge Richard A Jones.(RS) (Entered: 12/03/2012)
46 Agreed MOTION to Stay Proceedings by Plaintiffs A.B.T., A.S.D., B.H., B.M., D.W., G.K., H.L., K.M.-W., L.K.G., L.M.M.M., M.A., M.F.. (Attachments: # 1 Proposed Order) Noting Date 1/25/2013, (Adams, Matt) (Entered: 12/21/2012)
47 Stipulated MOTION to Extend the Stay of Proceedings by Defendants Executive Ofﬁce for Immigration Review, Eric Holder, Jr, Alejandro Mayorkas, Janet Napolitano, Juan Osuna, U.S. Citizenship and Immigration Services. (Attachments: # 1 Proposed Order) Noting Date 2/8/2013, (Weintraub, J.) (Entered: 01/18/2013)

01/23/2013 02/07/2013 02/11/2013 03/29/2013 04/12/2013 04/12/2013
04/17/2013 04/17/2013 04/18/2013
04/25/2013 04/25/2013
05/06/2013 05/06/2013
05/08/2013

48 ORDER STAYING PROCEEDINGS by Judge Richard A Jones. All proceedings in this action are stayed until February 8, 2013. The Clerk is directed to terminate the stipulated motions to extend the stay. Dkt. ## 46 , 47 . (CL) (Entered: 01/23/2013)
49 STIPULATION AND PROPOSED ORDER Extending Stat by parties. (Attachments: # 1 Proposed Order)(Weintraub, J.) (Entered: 02/07/2013)
50 ORDER by Judge Richard A Jones. This will be the court's ﬁnal extension. The parties have until March 29, 2013 to ﬁle a notice of settlement and dismissal with the court. If the court does not receive a notice of settlement and dismissal by March 29, 2013, the Clerk will lift the stay and issue an amended case schedule. (CL) (Entered: 02/11/2013)
51 JOINT STATUS REPORT signed by all parties. (Weintraub, J.) (Entered: 03/29/2013)
52 Joint MOTION to Certify Class by Plaintiffs A.S.D., B.H., B.M., D.W., G.K., H.L., L.K.G., L.M.M.M., M.A., M.F.. (Attachments: # 1 Proposed Order) Noting Date 4/12/2013, (Strawn, Christopher) (Entered: 04/12/2013)
53 Joint MOTION for Order of Preliminary Approval of Settlement and Request for Fairness Hearing by Plaintiffs A.S.D., B.H., B.M., D.W., G.K., H.L., L.K.G., L.M.M.M., M.A., M.F.. (Attachments: # 1 Exhibit Exh. 1 - Settlement Agreement, # 2 Exhibit Exh. 1 A - Proposed Class Notice, # 3 Exhibit Exh. 1 B - Claim Form, # 4 Proposed Order) Noting Date 4/12/2013, (Strawn, Christopher) (Entered: 04/12/2013)
54 ORDER by Judge Richard A Jones. The court GRANTS the parties' 52 joint motion for class certiﬁcation. (CL) (Entered: 04/17/2013)
55 ORDER re 53 Joint MOTION for Order of Preliminary Approval by Judge Richard A Jones. (CL) (Entered: 04/17/2013)
56 Amended Joint MOTION for Order of Preliminary Approval of Settlement and Request for Fairness Hearing, Amended ﬁling by Plaintiffs A.S.D., B.H., B.M., D.W., G.K., H.L., L.K.G., L.M.M.M., M.A., M.F.. (Attachments: # 1 Exhibit Exh. 1 - Settlement Agreement, # 2 Exhibit Exh. 1 A - Proposed Class Notice, # 3 Exhibit Exh. 1 B - Claim Form, # 4 Proposed Order) Noting Date 4/18/2013, (Strawn, Christopher) Modiﬁed on 4/19/2013 (CL). (Entered: 04/18/2013)
57 WITHDRAWAL of Motion re 56 Joint MOTION for Order of Preliminary Approval of Settlement and Request for Fairness Hearing, Amended ﬁling ; by Plaintiff B.H.. (Strawn, Christopher) (Entered: 04/25/2013)
58 Joint MOTION for Order of Preliminary Approval of Settlement and Request for Fairness Hearing, Amended ﬁling by Plaintiff B.H.. (Attachments: # 1 Exhibit Exh 1 Settlement agreement, # 2 Exhibit Exh 1 A - Class notice, # 3 Exhibit Exh 1 B - Claim form, # 4 Proposed Order) Noting Date 4/25/2013, (Strawn, Christopher) (Entered: 04/25/2013)
59 WITHDRAWAL of Motion re 58 Joint MOTION for Order of Preliminary Approval of Settlement and Request for Fairness Hearing, Amended ﬁling ; by Plaintiff B.H.. (Strawn, Christopher) (Entered: 05/06/2013)
60 Joint MOTION for Order of Preliminary Approval of Settlement and Request for Fairness Hearing, Amended ﬁling by Plaintiff B.H.. (Attachments: # 1 Exhibit Exh 1 Settlement Agreement, # 2 Exhibit Exh 1 A - class notice, # 3 Exhibit Exh 1 B - claim form, # 4 Proposed Order) Noting Date 5/6/2013, (Strawn, Christopher) (Entered: 05/06/2013)
61 ORDER re: the parties' 60 motion for preliminary approval of settlement and request for fairness hearing by Judge Richard A Jones. The court APPROVES the Settlement

06/07/2013 08/14/2013 08/26/2013 09/17/2013 09/18/2013 09/20/2013
09/26/2013 09/26/2013 09/27/2013 10/24/2013

Agreement and the Class Notice, attached as Exhibit A to the Settlement Agreement. The court sets a fairness hearing on the 20th day of September, 2013, at 10:00 a.m. at the United States Courthouse, 700 Stewart Street, Seattle WA 98101, in the Courtroom of the Honorable Richard A. Jones. (CL) (Entered: 05/08/2013)
62 OBJECTIONS by a non-party/Hovsep Sogomonian re 61 Order on Motion for Order Approving the Settlement Agreement and the Class Notice. (CL) (Entered: 06/10/2013)
63 NOTICE of Filing of Amended Claim Form ; ﬁled by Defendants Executive Ofﬁce for Immigration Review, Eric Holder, Jr, Alejandro Mayorkas, Janet Napolitano, Juan P Osuna, U.S. Citizenship and Immigration Services. (Attachments: # 1 amended Claim Form)(Weintraub, J.) (Entered: 08/14/2013)
64 NOTICE OF FILING OF SECOND AMENDED CLAIM FORM re 63 Notice-Other, ; ﬁled by Defendants Executive Ofﬁce for Immigration Review, Eric Holder, Jr, Alejandro Mayorkas, Janet Napolitano, Juan P Osuna, U.S. Citizenship and Immigration Services. (Attachments: # 1 Second Amended Claim Form)(Weintraub, J.) (Entered: 08/26/2013)
65 NOTICE re 63 Notice-Other, ; ﬁled by Defendants Executive Ofﬁce for Immigration Review, Eric Holder, Jr, Alejandro Mayorkas, Janet Napolitano, Juan P Osuna, U.S. Citizenship and Immigration Services. (Attachments: # 1 Exhibit Third Amended Claim Form)(Weintraub, J.) (Entered: 09/17/2013)
66 NOTICE Respondent to Court's Questions ; ﬁled by Plaintiff B.H.. (Attachments: # 1 Exhibit Exh. A - Atty's fees and costs, # 2 Exhibit Exh. B - Settlement Agreement) (Strawn, Christopher) (Entered: 09/18/2013)
67 MINUTE ENTRY for proceedings held before Judge Richard A Jones- Dep Clerk: Casey Condon; Pla Counsel: Matt Adams, Christopher Strawn; Def Counsel: J. Max Weintraub, Priscilla Chan; CR: Nancy Bauer; Hearing held on 9/20/2013. The court held a fairness hearing on class action settlement. The court tentatively approved the settlement, pending a revised notice to the class. The court directed the parties to ﬁle a stipulated motion for attorney's fees. The court directed counsel to provide a revised notice to the class to include the stipulated motion for attorney's fees and the revised settlement agreement, including a link to a red-lined version of the settlement agreement. The court also directed counsel to ﬁle a joint proposed ﬁnal order certifying the settlement class and approving class action settlement. Counsel requested a 30 day time frame to allow class members to respond to the revised class notice, and the court approved. The court scheduled a hearing for the approval of settlement for Monday, Nov. 4, 2013 at 9:00 a.m. However, if the court does not receive any objections, it will enter an order approving class settlement upon expiration of the 30 day time frame. (CC) (Entered: 09/23/2013)
68 Joint MOTION for Order Approving Notice for Class by Plaintiff B.H.. (Attachments: # 1 Exhibit Ex A - Proposed Notice, # 2 Proposed Order) Noting Date 9/26/2013, (Strawn, Christopher) (Entered: 09/26/2013)
69 Joint MOTION for Attorney Fees and Costs by Plaintiff B.H.. (Attachments: # 1 Exhibit Ex A - attorneys fees and costs records, # 2 Proposed Order) Noting Date 9/26/2013, (Strawn, Christopher) (Entered: 09/26/2013)
70 ORDER APPROVING NOTICE ON ATTORNEYS' FEES AND MODIFICATION OF SETTLEMENT AGREEMENT by Judge Richard A Jones; The Revised Class Notice, attached as Exhibit A to the Joint Motion (Dkt. # 68 ), is approved. (TF) (Entered: 09/27/2013)
71 OBJECTIONS by non-party/Smaragda (Esmeralda) Karakoudas, Esq., re 61 Order

10/30/2013
10/30/2013 10/30/2013 11/04/2013
11/04/2013 11/04/2013 11/04/2013 03/13/2014 12/18/2014 04/21/2017

on Motion for Order Approving the Settlement Agreement and the Class Notice. (CL) (Entered: 10/25/2013)
72 Unopposed MOTION to Amend SETTLEMENT AGREEMENT DEADLINES DUE TO APPROPRIATIONS LAPSE by Defendants Executive Ofﬁce for Immigration Review, Eric Holder, Jr, Alejandro Mayorkas, Janet Napolitano, Juan P Osuna, U.S. Citizenship and Immigration Services. Noting Date 11/1/2013, (Weintraub, J.) (Entered: 10/30/2013)
Noting Date Reset re 72 Unopposed MOTION to Amend Settlement Agreement Deadlines Due to Appropriations Lapse pursuant to Local Civil Rule 7(d): Noting Date 11/15/2013. (SS) (Entered: 10/30/2013)
73 PROPOSED ORDER (Unsigned) re 60 Joint MOTION for Order of Preliminary Approval of Settlement and Request for Fairness Hearing, Amended ﬁling . (Weintraub, J.) (Entered: 10/30/2013)
74 MINUTE ENTRY for proceedings held before Judge Richard A. Jones - Dep Clerk: Victoria Ericksen; Pla Counsel: Christopher Strawn, Matt Adams; Def Counsel: J. Max Weintraub; CR: Nancy Bauer; MOTION HEARING held on 11/4/2013. After hearing from counsel, for the reasons stated on the record, the Court grants ﬁnal approval of the class action settlement. Orders and Judgment to be entered. (VE) (Entered: 11/04/2013)
75 ORDER the court GRANTS the unopposed motion to amend certain deadlines in the settlement agreement (Dkt. # 72), the motion for attorneys fees (Dkt. # 69) and APPROVES settlement of this class action (Dkt. # 60) by Judge Richard A Jones.(RS) (Entered: 11/04/2013)
76 ORDER APPROVING CLASS ACTION SETTLEMENT by Judge Richard A Jones. (RS) (Entered: 11/04/2013)
77 JUDGMENT BY COURT The court GRANTS ﬁnal approval of the settlement of this class action, grants the motion for payment of attorneys fees to class counsel, and directs the parties to ensure compliance with the courts ﬁnal approval order (RS) (Entered: 11/04/2013)
78 NOTICE of Filing of Amended Claim Form ; ﬁled by Defendants Executive Ofﬁce for Immigration Review, Eric Holder, Jr, Alejandro Mayorkas, Janet Napolitano, Juan P Osuna, U.S. Citizenship and Immigration Services. (Attachments: # 1 Exhibit Fourth Amended Claim Form)(Weintraub, J.) (Entered: 03/13/2014)
79 REPORT re 77 Judgment by Court, 76 Order by Defendants Executive Ofﬁce for Immigration Review, Eric Holder, Jr, Alejandro Mayorkas, Janet Napolitano, Juan P Osuna, U.S. Citizenship and Immigration Services (Weintraub, J.) (Entered: 12/18/2014)
80 NOTICE/PETITION ﬁled by Daljit S Jandu re being an ABT class member (RS) (Entered: 04/24/2017)

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Frequently Asked Questions about the Asylum Clock Class Action Settlement
A.B.T., et al. v. USCIS, et al. is a nationwide class action that challenged the manner in which the United States Citizenship and Immigration Services (USCIS) and the Executive Office for Immigration Review (EOIR) determine an asylum applicant’s eligibility for an Employment Authorization Document (EAD). The suit was filed in the federal district court in Seattle, Washington in mid-December, 2011 by the Legal Action Center (LAC), Northwest Immigrant Rights Project (NWIRP), Gibbs Houston Pauw, and the Massachusetts Law Reform Institute.
The lawsuit challenged five specific EOIR and USCIS policies for administering the “asylum EAD clock”1 in removal proceedings. The asylum EAD clock is the tool used by the agencies to calculate whether an asylum applicant has satisfied the 180-day waiting period for eligibility for work authorization. Asylum applicants are not automatically eligible to receive an EAD while their applications are pending. Instead, an applicant who is otherwise eligible can receive an EAD only after the asylum application has been pending for 180 days. The running of the 180day waiting period is suspended for applicant-requested or caused delay of the adjudication of the asylum application.
The parties have reached a settlement of the issues in the case. Because the case is a class action, the settlement must be approved by the court before it will become final. This FAQ describes the terms of the Settlement Agreement and the process for its approval. The ABT Settlement Agreement is available at the LAC’s website at http://legalactioncenter.org/sites/default/files/601_Settlement%20Agreement.pdf or the NWIRP’s website at http://nwirp.org/documents/pressreleases/60-1.pdf.
1. When will the Settlement Agreement be final?
We anticipate that the Settlement Agreement will be implemented in early November 2013. It is unlikely that there will be any changes prior to that time.
The court will hold a fairness hearing on September 20, 2013, at which time it will consider any objections to the Settlement Agreement that class members have filed with the court prior to that
1 Although EOIR and USCIS do not use the term “asylum EAD clock,” we use it here because we believe it accurately captures the mechanism used by the agencies for determining if the asylum applicant has satisfied the waiting period for an EAD. EOIR and USCIS use a different but similar term, “asylum clock,” to describe the asylum adjudications clock – the mechanism used to determine how long asylum cases have been pending since filing.

date. If the court determines that the Settlement Agreement is fair to the class members, it will issue an order approving the agreement. The date of the court’s order approving the settlement will be the date that the Settlement Agreement becomes final. After the fairness hearing, the Court will dismiss the district court action with prejudice. However, the court will continue to retain jurisdiction over certain matters such as claims that a party has committed a violation of the Settlement Agreement.
2. What issues does the Settlement Agreement address and how does it resolve these issues?
There are five asylum EAD clock problems that the Settlement Agreement addresses. The following is a summary of these issues and the manner in which the Settlement Agreement resolves each problem. This FAQ has a more detailed discussion of the resolution of each problem in Questions 4 and 5 below.
 Delay in starting the asylum EAD clock caused by an arbitrary rule that asylum applications can only be filed at a hearing before an immigration judge (IJ).
 The asylum EAD clock only starts when a complete application is filed. EOIR rules currently only allow an applicant to file an application at a hearing before an IJ, rather than with the court clerk, unlike other applications. Since court dockets are backlogged, applicants can often wait extended periods for immigration court hearings to file their applications and start their asylum EAD clocks.
 Resolution: An applicant will be able to “lodge” an asylum application with an immigration court clerk at a time other than a hearing. A “lodged” application will be considered “filed” for purposes of the asylum EAD clock, and the “lodged” date will start the asylum EAD clock. The asylum application will still need to be “filed” in a hearing before an IJ. In the interim, however, the asylum EAD clock will be running and an individual with 180 days accumulated after the “lodged” date will be eligible to submit an application for employment authorization to USCIS.
 Insufficient time allowed to prepare an expedited asylum case.
 Current immigration court policy permits an IJ to stop the asylum EAD clock if an asylum applicant cannot accept an expedited hearing date only 14 days away. Two weeks is usually too little time to properly prepare an asylum case. The alternative hearing date offered by the IJ is almost always months, if not years, in the future. So the applicant is left with the choice of a date that is within two weeks, or one that is months away during which time the applicant will be without an EAD.
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 Resolution: An IJ must offer a non-detained applicant (whose case is on the expedited docket) a hearing date that is at least 45 days out. Because these cases are expedited, current policy requires the IJ to offer the first available date within the 180-day adjudications deadline. The settlement assures that the applicant will have a minimum of 45 days. If the applicant accepts that hearing date, the asylum EAD clock will continue to run.
 EAD clock stopped after denial of asylum application by immigration judge and not restarted even after successful appeal and remand.
 Currently, the asylum EAD clock stops when an asylum application is denied by an IJ, and it does not restart if the decision is overturned and the case is remanded for a new asylum decision. As a result, the applicant is left without any opportunity for an EAD during the entire remand proceedings, a lengthy process.
 Resolution: The asylum EAD clock will restart on the date that the BIA remands a case to the IJ for reconsideration of the asylum decision (including cases in which the remand originated in the court of appeals).
 Additionally, on the date of the remand, the applicant’s clock will be credited with the number of days that the case was pending on appeal, since the IJ denial.
 Insufficient notice provided of the right to reschedule a missed asylum interview with USCIS, with the result that asylum EAD clock is often permanently stopped.
 Missing an asylum interview with USCIS permanently stops the asylum clock for work authorization, no matter the reason for missing the interview. Currently, an applicant has only a 15 day period in which to show good cause for missing the asylum interview.
 Resolution: USCIS will mail a letter to asylum applicants who miss an asylum interview informing them of how missing an interview affects work authorization eligibility, and giving them 45 days to show good cause for having missed the interview.
 Insufficient notice of asylum EAD clock decisions and procedures given to applicants, including insufficient notice regarding the impact of an adjournment on the EAD clock.
 Currently, many asylum applicants are not aware that decisions made at a preliminary hearing in Immigration Court may stop the asylum EAD clock. The reason given by an IJ for setting the next hearing – the “adjournment code” – determines whether the asylum EAD clock runs or stops. Currently, an IJ may or may not state the reason for the adjournment. EAD denial notices may also lack sufficient information about the reasons for asylum EAD clock decisions.
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 Resolution: The Immigration Court will provide a written notice to asylum seekers and their counsel about the asylum EAD clock, including the impact of the different hearing adjournment codes on employment authorization. The IJ will be instructed to state clearly on the record the reason for adjournment. USCIS will consider ways to make its letters denying EAD applications clearer and will make changes to these letters.
3. How do I know if someone is a class member?
An asylum applicant is entitled to certain benefits under the terms of Settlement Agreement if he or she is a member of the Notice and Review class and one of the subclasses described below. The class and subclasses correspond with the five problems described above.
 Notice and Review Class  Noncitizens who have filed or lodged an asylum application,  Whose asylum applications are pending, and  Who received insufficient notice under the terms of the Settlement Agreement (see question 4 below for changes to EOIR and USCIS policies and practices regarding notice).
 Hearing Subclass  Noncitizens in removal proceedings who have filed or lodged (see question 4 for a description of the process for “lodging” an asylum application) a complete asylum application with the immigration court prior to a hearing before an immigration judge, and  Whose asylum EAD clocks started at the date of the next hearing instead of the date that the asylum application was lodged at the immigration court.
 Prolonged Tolling Subclass  Noncitizens who are not detained and who have filed an application for asylum, and  Whose asylum EAD clocks stopped due to delay attributed to them for failing to accept the next expedited hearing date offered by the immigration court.
 Missed Asylum Interview Subclass  Noncitizens who failed to appear for an asylum interview with USCIS, and  Whose asylum EAD clocks have not counted the time that has elapsed following the date of the missed asylum interview.
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 Remand Subclass  Noncitizens whose asylum applications have been denied by the immigration court before 180 days accrued on their asylum EAD clocks,  Whose appeal to the BIA or a federal court of appeals was remanded for further adjudication of the asylum claim by an immigration judge, and  Whose asylum EAD clocks have not counted the time from the date of the initial denial.
4. What policy changes will take place under the ABT Settlement Agreement specific to each class? When will they take effect?
 Notice and Review Class  See Section III.A.1 of the ABT Settlement Agreement  By November 8, 2013, EOIR will amend its relevant policy memorandum, entitled Operating Policies and Procedures Memorandum 11-02: The Asylum Clock, to state that the immigration judge must make the reason(s) for the case adjournment clear on the record.2  By November 8, 2013, both EOIR and USCIS will create an interim notice regarding asylum adjudication and employment authorization. EOIR will provide this notice to an asylum applicant when an asylum application is lodged or filed with an immigration court and also will make a copy of the notice available at each hearing. USCIS will make the information publicly available, including providing the notice to an asylum applicant upon referral to immigration court. Defendants also will provide contact information for inquiries regarding requests to correct the calculation of the asylum adjudications period before the Asylum Office, hearing adjournment codes before the Immigration Court, and asylum-related EAD denials before USCIS.  Defendants will issue a final version of the interim notice no later than May 8, 2015.  USCIS will produce a new EAD denial letter with input from Plaintiffs as to the language and content no later than May 8, 2015
 Hearing Subclass  See Section III.A.2 of the ABT Settlement Agreement  By November 8, 2013, defendants will have implemented a process for stamping an application “lodged not filed” at the immigration court. The 180-day waiting period for an EAD will begin when the application is stamped
2 These changes may take place prior to November 8, 2013. Class counsel will provide notice on their websites as soon any policies changes stemming from the Settlement Agreement are implemented.
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“lodged, not filed.” Once the 180-day period has passed, an applicant can file a Form I-765, Application for Employment Authorization, with USCIS, with a copy of the asylum application that an EOIR immigration clerk stamped “lodged not filed.” USCIS will consider the date that the application was stamped “lodged not filed” as the filing date for the purpose of calculating the time period for EAD eligibility.  By May 8, 2015, in addition to the above described changes, EOIR will have established a system for transmitting the “lodged not filed” date to USCIS.
 Prolonged Tolling Subclass  See Section III.A.3 of the ABT Settlement Agreement  By November 8, 2013, EOIR will amend section VI.E.2.c. of the OPPM 1102: The Asylum Clock to require, in setting individual hearing dates in expedited non-detained cases in which there are pending asylum applications, that an immigration judge set the individual hearing date at least 45 days from the date of the last hearing.
 Missed Asylum Interview Subclass  See Section III.A.4 of the ABT Settlement Agreement  By November 8, 2013, defendants will implement a new system for starting and restarting the asylum clock after a missed asylum interview.  First, USCIS will mail a “Failure to Appear” Warning letter as soon as possible after an asylum applicant misses an interview at the Asylum Office. The letter will describe the effect of the failure to appear on EAD eligibility and list procedural steps the applicant must take to establish “good cause” for failing to appear for the interview. It will also describe the effect of failing to respond to the warning letter within a 45 day period.  If the applicant responds within 45 days and demonstrates good cause for missing the interview, the interview will be rescheduled and the asylum EAD clock will restart as of the new interview date.  If 45 days pass with no action by the applicant, USCIS will mail a “Referral Notice for Failure to Appear” with charging documents to the applicant. This notice will describe the effect of the failure to appear on EAD eligibility and list procedural steps the applicant must take to establish “exceptional circumstances” for failing to appear at an asylum interview now that the case is before an immigration judge.  Upon determining whether exceptional circumstances exist, the Asylum Office will issue a determination letter to the applicant and his or her representative of record, and notify Immigration and Customs Enforcement’s Office of the Principal Legal Advisor (ICE OPLA) of the determination. If the Asylum Office
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determines that the applicant established “exceptional circumstances,” the applicant may then request that ICE OPLA file a joint motion for dismissal of immigration proceedings. If the immigration judge then dismisses proceedings, and the asylum application is returned to the Asylum Office, the Asylum Office will reopen the asylum application and reschedule an interview with the asylum applicant.  The asylum EAD clock, which stopped on the date of the applicant’s failure to appear for the asylum interview, will restart on the date the applicant appears for the rescheduled interview at an Asylum Office.
 Remand Subclass  See Section III.A.5 of the ABT Settlement Agreement  By November 8, 2013, defendants will implement a new system for starting and restarting the asylum EAD clock when an asylum case is remanded from the BIA.  Following a BIA remand of a case to an IJ for adjudication of an asylum claim, including cases that the BIA is remanding to an IJ following a remand to the BIA from a court of appeals, the asylum EAD clock will be credited with the number of days that elapsed between the initial immigration judge denial and the date of the BIA remand order. Additionally, the asylum EAD clock will restart on the date of the BIA remand and will run and stop according to general EOIR policies thereafter.  To demonstrate eligibility for employment authorization, an asylum applicant must attach a copy of the complete BIA order remanding his or her case to the immigration court to his or her EAD application.
5. When and how may a person file a claim to seek relief under the ABT Settlement Agreement?
An ABT claimant may file a claim under the ABT Settlement Agreement if he or she did not benefit from the policy changes in the Settlement Agreement in any one of the ways described below. The claim forms discussed below can be found at the LAC website at http://legalactioncenter.org/sites/default/files/ABT%20Claim%20Form.pdf and the NWIRP website at http://www.nwirp.org/news/viewmediarelease/60.
 Filing a Notice and Review Claim: EOIR  An ABT claimant may file a claim with EOIR if, after November 8, 2013, 1) EOIR does not provide notice to the claimant regarding the asylum EAD clock when the claimant lodges an asylum application with the immigration court or files an asylum application with the immigration judge, and/or 2) EOIR does not
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provide notice regarding the asylum EAD clock at subsequent immigration court hearings.  The claim form titled “SECTION I – CLAIMS BEFORE EOIR” should be completed and submitted for this claim.
 Filing a Notice and Review Claim: USCIS  An ABT claimant may file a claim with USCIS if, after November 8, 2013, USCIS refers the claimant’s application to an immigration judge and does not provide a notice containing information about employment authorization to the ABT claimant at the time of referral.  The claim form titled “SECTION III – CLAIMS BEFORE USCIS; MISSED INTERVIEW AND NOTICE” should be completed and submitted for this claim.
 Filing a Hearing Claim: EOIR  An ABT claimant may file a claim with EOIR if, after November 8, 2013, EOIR does not stamp the ABT claimant’s complete defensive asylum application at the immigration court clerk’s window as “lodged not filed” and return the asylum application to the claimant, or prevents or otherwise deters the ABT claimant from “lodging” a complete asylum application.  The claim form titled “SECTION I – CLAIMS BEFORE EOIR” should be completed and submitted for this claim.
 Filing a Hearing Claim: USCIS  An ABT claimant may file a claim with USCIS if, after November 8, 2013, in adjudicating an application for employment authorization, USCIS did not use the date on which an ABT claimant “lodged” his or her asylum application at an immigration court clerk’s window as the filing date for purposes of EAD eligibility.  The claim form titled “SECTION II – CLAIMS BEFORE USCIS; EAD DENIALS” is to be completed and submitted for this claim.
 Filing a Missed Asylum Interview Claim: USCIS  An ABT claimant may file a claim with USCIS in any of the following situations:  If, after November 8, 2013, USCIS does not mail a Failure to Appear Warning Letter to the ABT claimant at the last address provided to USCIS after the claimant failed to appear for an asylum interview with a USCIS Asylum Office, and/or  USCIS does not wait 45 days after a missed interview before issuing a decision referring the asylum application to an immigration judge, and/or
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 USCIS does not include a Referral Notice for Failure to Appear when referring an ABT claimant’s asylum application to an immigration judge, and/or
 After his or her case is referred to an immigration judge by USCIS and an ABT claimant requests that USCIS make a determination that exceptional circumstances led to the missed asylum interview, USCIS fails to provide the ABT claimant and his or her representative with a determination letter, with a copy to ICE OPLA, and/or
 After USCIS determines that exceptional circumstances existed for missing the asylum interview, the ABT claimant’s proceedings are dismissed by the immigration judge and the USCIS Asylum Office reopens the claimant’s asylum case, USCIS fails to start the asylum EAD clock on the rescheduled asylum interview date.
 The claim form titled “SECTION III – CLAIMS BEFORE USCIS; MISSED INTERVIEW AND NOTICE” is to be completed and submitted for this claim.
 Filing a Remand Claim: USCIS  After November 8, 2013, an ABT claimant may file a claim with USCIS if the BIA remanded the claimant’s asylum case to an immigration judge and the claimant’s EAD application was denied because USCIS did not credit the time from the initial immigration judge denial to the date of the BIA remand order in determining EAD eligibility.  The claim form titled “SECTION II – CLAIMS BEFORE USCIS; EAD DENIALS” is to be completed and submitted for this claim.
6. What happens after I file my claim form? If I disagree with the agency’s decision, do I have a further appeal under the Settlement Agreement?
Within 45 days after receiving an ABT Claim Form, USCIS or EOIR will mail the asylum applicant who filed the claim either 1) a decision on the claim, called a Final Notice; or 2) a Notice of Preliminary Findings. See Section II.C.11.b.iv of the ABT Settlement Agreement.
The Final Notice will provide the agency’s determination 1) about whether the claimant is a class or subclass member and if a violation of the Agreement occurred, 2) a description of any corrective action that the agency has taken or will take, if a violation was found, and 3) if the claimant is not determined to be a class or subclass member, instructions about seeking review of that determination.
The Notice of Preliminary Findings will explain the basis for USCIS or EOIR’s belief that the claimant is not a class or subclass member or that there was no violation of the agreement, and request additional information and/or evidence from the ABT claimant. The claimant will have 30 days after the Notice of Preliminary Findings to submit additional written evidence or information. Within thirty days after timely receipt of the supplemental information from the
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claimant, or within thirty days of the claimant’s deadline if no additional information was submitted, USCIS or EOIR will send a Final Notice.
The parties may negotiate in good faith to resolve any remaining disputes within 30 days of the date that the agency mailed the Final Notice. For example, if a claim is granted, but the complaining party believes the corrective action taken by USCIS or EOIR is not sufficient to remedy the violation, he or she may attempt to negotiate a resolution of that dispute. See Section II.C.11.b.v of the ABT Settlement Agreement.
If the parties cannot resolve the dispute, ABT claimants may apply to the district court for enforcement of the Settlement Agreement. Before doing this, however, the asylum applicant must inform EOIR or USCIS that he or she intends to do so. See Section II.C.11.b.vi of the ABT Settlement Agreement.
7. May I challenge EOIR or USCIS’ asylum EAD clock practices and procedures if they are not resolved by the Settlement Agreement?
Yes. The Settlement Agreement does not affect or limit the ability of individuals to independently challenge, before the agency or in federal court, claims that are entirely outside of the Settlement Agreement or claims that cannot be considered under the Claims Review Process of the Settlement Agreement. Examples of issues in this latter category include: 1) a challenge to whether an immigration judge made the reason(s) for the case adjournment clear on the record, or 2) a challenge to whether the immigration judge offered a non-detained ABT claimant an expedited hearing date that was a minimum of 45 days from the last master calendar hearing. An applicant may use any available avenue to challenge one of these decisions. See Sections II.C.11 and II.C.11.b.ii of the ABT Settlement Agreement.
8. If my asylum EAD clock problem is not related to policies and practices covered by the Settlement Agreement, but merely an error on the part of EOIR or USCIS, what remedies exist?
The OPPM 11-02: The Asylum Clock states that an asylum applicant who believes that an asylum clock decision is incorrect should address it in the following ways:
 If the issue arises during a hearing, the applicant or his or her attorney should raise the issue with the immigration judge; the judge should then respond on the record.
 If the issue arises after the hearing, the asylum applicant should contact the court administrator in writing with a detailed explanation of why the asylum EAD clock decision was incorrect. Contact information for court administrators is available at http://www.justice.gov/eoir/sibpages/ICadr.htm#AZ. The letter should also copy EOIR’s Office of the General Counsel at 5107 Leesburg Pike Ste. 2600, Falls Church, VA 22041.
 If a party believes that the issue has not been addressed correctly at the immigration court level, the party may contact the Assistant Chief Immigration Judge in writing with a detailed explanation of why the asylum EAD clock decision was incorrect. Contact
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information for Assistant Chief Immigration Judges is available at http://www.justice.gov/eoir/sibpages/ACIJAssignments.htm. The letter should also copy EOIR’s Office of the General Counsel at 5107 Leesburg Pike Ste. 2600, Falls Church, VA 22041.  If a case is pending before the Board of Immigration Appeals and the applicant believes an error has been made, he or she should contact EOIR’s Office of the General Counsel directly by letter. The letter should provide a detailed explanation of why the clock appears to be incorrect. Questions about the appeal process at the Office of the General Counsel should be directed to 703-305-0470.
In addition, an asylum applicant who believes he or she is eligible for employment authorization may file an application for employment authorization with USCIS, together with evidence that he or she is eligible, and pursue any appropriate review of that application if denied.
9. If I requested and got a continuance and my individual hearing date now is set at a date that is months, even years in the future, what are my options?
Before requesting a continuance and accepting a future date that is far in the future, remember that, under the terms of the Settlement Agreement, in an expedited case, EOIR must not offer an individual hearing date that is sooner than 45 days after the master calendar hearing date. See Question 2, supra.
If you have an expedited case,3 then the immigration judge must attempt to schedule the case within 180 days. When this happens, the asylum application may be decided before the 180-day waiting period for an EAD has run.4 If the 45 days is insufficient and an applicant needs an additional continuance, then the case will be removed from the expedited calendar and the immigration judge does not have to schedule the next hearing within 180 days but may set it far in the future.
If you must request a continuance and the immigration judge offers you an individual hearing date far in the future, you may file a motion to advance the individual hearing date when you are ready to move forward. OPPM 11-02: The Asylum Clock states that a party may file a motion to cancel and reschedule a hearing for an earlier date. If the court grants the motion to advance, the asylum EAD clock will start or remain stopped depending on what happens at the advanced
3 An expedited case is an asylum case subject to the 180-day adjudications deadline. A case is considered an expedited case if it was initially an affirmative asylum case filed with USCIS and then referred to an immigration court before 75 days had elapsed since filing. The case is also considered an expedited case if the case was filed at the immigration court and the applicant never requested a continuance. See OPPM 11-02: The Asylum Clock at 5, 9-10. 4 If the applicant wins asylum, he or she will receive an EAD. If the asylum application is denied, and an appeal is taken, the asylum EAD clock could restart if there is a remand from the BIA for a new decision on the asylum application. See Question 4, Remand Subclass, supra.
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hearing. Be sure to prepare your facts and arguments in support of your motion as thoroughly and persuasively as possible. Another alternative might be to request that the case be set to another Master Calendar Hearing.
10. When does the Settlement Agreement terminate? The Settlement Agreement will end 4 years following the full implementation of all of the terms of the Agreement or 6 years after the effective date of the Agreement, whichever occurs first.
11. Should I contact class counsel if I think my client’s case is not being handled correctly under the Settlment Agreement?
We are interested in hearing about problems with implementation of the Settlement Agreement. Do not contact us about implementation problems before November, 2013, because the Settlement Agreement will not be implemented until then. After that point, please carefully review these FAQs and the Settlement Agreement itself to make sure that your client is a class member entitled to relief under the Agreement before contacting us. If you believe that this is the case, and that relief has been denied, then contact the LAC at asylumclock@immcouncil.org or the NWIRP at Asylumclock@nwirp.org.
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