EOIR Prioritizes Completing Asylum Adjudications in Immigration Courts Within 180 Days

 

Introduction

On November 19, 2018, Executive Office for Immigration Review (EOIR) Director James McHenry published a new memorandum titled “Guidance Regarding the Adjudication of Asylum Applications Consistent With INA Section 208(d)(5)(A)(iii)” [PDF version]. The memorandum establishes that to, the maximum extent practicable, it is the policy of the EOIR to complete adjudications of asylum applications within 180 days of filing.

In this article, we will review the guidance in Director McHenry's new asylum adjudication memorandum.

Background

Director McHenry began by explaining that asylum applications with the EOIR have more than tripled since fiscal year 2014. Accordingly, “there are over 350,000 cases in immigration proceedings with an asylum application pending.”

Section 208(d)(5)(A)(iii) of the Immigration and Nationality Act (INA) provides that, “In the absence of exceptional circumstances, final administrative adjudication of the asylum application, not including administrative appeal, shall be completed within 180 days after the date an application is filed.” Under implementing regulations in 8 C.F.R. 1208.7(a)(2), the 180-day period begins “when the alien has filed a complete asylum application in accordance with” applicable procedures.

There is another asylum statute having to do with the 180-day period. Section 208(d)(2) of the INA provides that “An applicant for asylum is not entitled to employment authorization, but such authorization may be provided under regulation by the Attorney General. An [asylum] applicant who is not otherwise eligible for employment authorization shall not be granted such authorization prior to 180 days after the date of filing of the application for asylum.” (Emphasis added.) Under 8 C.F.R. 1208.7(a)(1), aliens cannot apply for employment authorization until at least 150 days have elapsed since filing the asylum application. Furthermore, in accord with the statute, employment authorization may not be granted until at least 180 days have elapsed since the filing of the asylum application. Under 8 C.F.R. 1208.7(a)(2), the alien must have filed a “complete asylum application” in order to benefit from the employment authorization for long-pending asylum applications.

Director McHenry explained that both INA 208(d)(5)(A)(iii) and 208(d)(7) “express Congress's strong expectation that asylum applications would be adjudicated within 180 days of the date of filing.”

Effect of Continuances

An immigration judge has the authority to continue removal proceedings for “good cause” under 8 C.F.R. 1003.29. If an alien requests a continuance, and the request is granted, the continuance may “delay adjudication of [his or her] asylum application[] past the 180-day deadline.

8 C.F.R. 1208.7(a)(2) provides that delays requested or caused by the asylum applicant are not counted as part of the 180-day adjudication deadline. Accordingly, an alien who causes delays in the asylum adjudication process is not entitled to the prompt adjudication of his or her claim. However, unless the delay(s) constitute exceptional circumstances, 8 C.F.R. 1208.7(a)(2) does not relieve the immigration judge of his or her obligation to adjudicate the case within 180 days.

Director McHenry explained that in order to warrant a continuance, an asylum applicant must satisfy the “good cause” standard of 8 C.F.R. 1003.29. Former Attorney General Jeff Sessions clarified the “good cause” standard in Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018) [see article]. However, in order for the continuance to relieve the immigration judge from the requirement to adjudicate the application within the statutory 180-day adjudication period, the continuance request must be underpinned by “exceptional circumstances” as specified by section 208(d)(5)(A)(iii) of the INA.

Section 208(d)(5)(A)(iii) does not define what constitutes “exceptional circumstances.” However, in section 240(e)(1) of the INA, Congress defines the same term as meaning “exceptional circumstances … beyond the control of the alien.” Congress provided examples: “'battery or extreme cruelty' or 'serious illness' suffered by the alien or his child or parent.” In Matter of J-P-, 22 I&N Dec. 33, 34 (BIA 1998) [PDF version], the Board of Immigration Appeals (BIA) described “exceptional circumstances” in the context of former section 242B as a “high standard.” In 8 C.F.R. 1212.7(d), the Attorney General's regulations provide examples of “exceptional circumstances” such as “national security or foreign policy considerations, or … exceptional and extremely unusual hardship.”

Prior to former Attorney General Sessions' clarifying of the “good cause” standard in Matter of L-A-B-R-, he explicitly described continuances as an “appropriate way to deal with exceptional circumstances” in Matter of Castro-Tum, 27 I&N Dec. 271, 293 (A.G. 2018) [see article]. However, continuances may more often be permissible in unexceptional circumstances. . For example, in Matter of Sibrun, 18 I&N Dec. 354, 356-57 (BIA 1983) [see article], the Board held that a continuance may be granted where an alien needs more time to compile “probative, noncumulative and significantly favorable evidence” despite a “diligent good faith effort to prepare” in time for the hearing. In Matter of S-A-, 21 I&N Dec. 1050, 1053 (BIA 1997) [PDF version], the Board held that the “reasonable cause” standard is “far less demanding” than the “exceptional circumstances” standard.

Differentiating Between General 180-Day Adjudication Target and Asylum Clock

Director McHenry explained that “good cause that warrants a continuance in general does not necessarily-and in every case-constitute exceptional circumstances that justify not meeting the 180-day deadline in INA 208(d)(5)(A)(iii).” This, he explained, has important ramifications for the implementation of the 180-day period for adjudicating asylum applications under section 208(d)(5)(A)(iii) and for adjudicating the employment authorization provision of section 208(d)(2). This distinction, Director McHenry concluded, has been blurred in previous operational guidance issued by the EOIR. “For instance, EOIR currently maintains a single 'asylum clock' that purports to capture the running of both 180-day periods, even though, as discussed above, the standard for tolling those periods differ.”

(Note: Although the instant memorandum discusses the asylum clock, Director McHenry made clear that it does not replace OPPM 13-03, “Guidelines for Implementation of the ABT Settlement Agreement” [PDF version]. Furthermore, the EOIR also retains as policy OPPM 13-02, “The Asylum Clock” [PDF version], with the clarifications included in the instant memorandum. However, Director McHenry stated that the “EOIR may develop a more precise mechanism for differentiating and tracking the 180-day period prescribed by INA 208(d)(5)(A)(iii) independently of the 180-day period prescribed by INA 208(d)(2)…” (We discuss the ABT Settlement Agreement in a separate article [see article]).

New Policy

Director McHenry stated that it is the policy of the EOIR “to complete adjudications of asylum applications within 180 days consistent with INA 208(d)(5)(A)(iii) to the maximum extent practicable.” (Note: Under the ABT Settlement Agreement, “when setting a case from a master calendar hearing to an individual calendar hearing, a minimum of 45 days for a non-detained case and 14-days for a detained case must be allowed,” notwithstanding the 180-day period in section 208(d)(5)(A)(iii). The instant memorandum does not change this requirement.)

The effect of the new policy is that all asylum applications should be adjudicated by the EOIR within 180 days of the date the application was filed, “absent exceptional circumstances.” The granting of a continuance does not automatically relieve an immigration judge of his or her obligation to adjudicate the asylum application within 180 days. Good cause for a continuance does not, in the absence of exceptional circumstances, justify exceeding the 180-day filing deadline. However, if a continuance is granted for good cause and exceptional circumstances exist, exceeding the 180-day filing deadline may be justified.

Director McHenry expressly provided that this new policy should be “read as being incorporated into the January 17, 2018 memorandum entitled “Case Priorities and Immigration Court Performance Measures” and Appendix A to that memorandum [PDF version]. We discuss that memorandum in a separate article [see article]. However, notwithstanding the new prioritization of asylum cases, “EOIR recognizes that it may take time to effectuate this policy fully due to current operational constraints.”

Finally, Director McHenry made clear that the instant memorandum expressly clarifies — notwithstanding any past guidance that suggests differently — that “good case” and 'exceptional circumstances” are not coterminous in every case.

Policy for Appeals Before the BIA

Section 208(d)(5)(A)(iii) explicitly excludes appeals from the 180-day adjudication period. However, Director McHenry explained that the Board “is subject to general regulatory requirements regarding the timely adjudication of appeals.” The pertinent regulations here are found in 8 C.F.R. 1003.1(e)(8). While the provisions of 8 C.F.R. 1003.1(e)(8), like those in section 208(d)(5)(A)(iii), “are not enforceable against the Government,” they “reflect an internal management directive in favor of timely dispositions.”

Thus, Director McHenry stated the following guidelines for appeals of an immigration judge's asylum decision before the BIA: “Accordingly, except in exigent circumstances determined by the Chairman of the Board, appeals assigned to a single Board member shall be adjudicated within 90 days of the completion of the record on appeal and appeals assigned to a three-member panel shall be adjudicated within 180 days of the completion of the record.” Director McHenry added that “The Board is expected to adhere to those regulations for all appeals, including appeals of asylum cases.” (Emphasis added.)

General Purpose

Director McHenry stated that the new policy “is not intended to limit the discretion of an Immigration Judge, and nothing herein should be construed as mandating a particular outcome in any specific case.” Instead, he stated that the memorandum provided guidance to immigration judges on adjudicating asylum cases within the statutory period and ensuring that “meritorious and unmeritorious claims are addressed as efficiently as possible consistent with the law.”

Conclusion

Director McHenry's new guidance on asylum cases may prove to be significant going forward. In the memorandum, the Director emphasizes that what constitutes “good cause” for a continuance in a case where an alien is seeking asylum before an immigration judge does not necessarily constitute “exceptional circumstances” authorizing the judge not to adjudicate the case to finality within 180 days. This is important because 'exceptional circumstances” is a more stringent standard than “good cause.” It remains to be seen to what extent this decision may affect the consideration of requests for continuances in asylum cases. In an additional point, the guidance will likely prompt immigration judges to move more quickly in adjudicating asylum cases.

An alien seeking asylum should always consult with an experienced immigration attorney. An attorney is indispensable in helping an alien articulate his or her claim for protection and in navigating the asylum process, whether the application is made affirmatively with the United States Citizenship and Immigration Services (USCIS) or defensively in removal proceedings. Furthermore, in the context of removal proceedings, an attorney may determine whether his or her client has alternative means of contesting the underlying charges and/or seeking other forms of relief or protection in addition to or in lieu of applying for asylum.

To learn more about some of the issues discussed in this article, please see our website's growing sections on asylum and refugee protection [see category] and removal and deportation defense [see category].