On December 15, 2011, five asylum seekers filed this class-action lawsuit in the U.S. District Court for the Western District of Washington. The complaint challenged the practices of the United States Citizenship and Immigration Services (USCIS) and the Executive Office for Immigration Review (EOIR). While awaiting determination on their asylum applications, asylum seekers could not legally work and support themselves. As a result, those asylum seekers still awaiting a decision after 180 days could obtain Employment Authorization Documents. However, the defendants' control of the time-calculation lacked transparency, according to the plaintiffs, and denied them of notice or opportunity to challenge the time calculations. This effectively denied them work authorization. The complaint claimed violations of the U.S. Constitution, the Immigration and Nationality Act (INA), the governing regulations, and the Administrative Procedure Act (APA). The plaintiffs sought class and subclass certification, declaratory and permanent injunctive relief, and attorneys' fees and costs. The case was assigned to Judge Richard Jones.

On June 5, 2012, plaintiffs submitted an amended complaint with a different list of ten asylum-seekers (all non-citizens living in different cities in the US).

The parties began mediation proceedings in July 2012. Extended settlement discussions ensued, and on April 12, 2013, the parties submitted a comprehensive settlement agreement that included a stipulation of class certification.

On April 17, 2013, the court granted parties' joint motion for class certification, establishing a 'general notice and review' class of individuals that met the following criteria:
1) all non-citizens in the US who have filed or will file a complete asylum application
2) which has neither been approved nor subjected to a denial for which no rights of review or appeal remain
3) whose applications for employment authorization based on their status as asylum applications had been or will be denied
4) whose eligibility for employment authorization based on pending asylum application will be determined in a manner alleged to provide insufficient notice/opportunity for review, and
5) who fall in one or more of the designated subclasses:

hearing

prolonged tolling

missed asylum interview,

remand

On May 8, 2013, the court preliminarily approved the parties' settlement agreement; and on November 4, 2013, it approved the final settlement and granted class counsel's attorneys' fees. The court also granted defendants' motion for an extension of the implementation date due to the government shutdown. 2013 WL 5913323.

Under the settlement:

An applicant would be able to "lodge" an asylum application with an immigration court clerk at a time other than a hearing. The "lodged" date started the asylum EAD clock. (The asylum application still needed to be "filed" in a hearing before an Immigration Judge [IJ].)

IJs had to offer each non-detained asylum applicant whose case was on the expedited docket a hearing date at least 45 days out. If the applicant accepted that hearing date, the asylum EAD clock continued to run during the period before the hearing.

If the IJ had denied an application, but the Board of Immigration Appeals remanded a case to the IJ for reconsideration, the asylum clock would restart on the date of the remand, and would credit the number of days that the case was pending on appeal since the IJ denial.

Instead of definitively stopping the clock when an applicant missed a meeting, USCIS would mail a letter to asylum applicants who missed 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.

When there was a preliminary hearing, the Immigration Court would provide written notice to asylum seekers and their counsel about the asylum clock, including the impact of the different hearing adjournment codes on employment authorization. IJs were instructed to state clearly on the record the reason for adjournment. USCIS considered ways to make its letters denying EAD applications clearer and made changes to these letters.

On December 18, 2014, Defendant Executive Office for Immigration Review submitted a report to the court regarding its order granting final approval of the class action settlement. The last activity on the docket was on April 21, 2017, when an individual filed notice to the court regarding status as a member of the class. Otherwise, as of October 2018 the case is closed.

Jennifer Bronson - 10/24/2013
Esther Vinarov - 10/19/2018


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