\ fr \ Federal Register Publications (CIS, ICE, CBP) \ Federal Register Publications (Legacy INS) - 1994 \ FEDERAL REGISTER FINAL REGULATIONS - 1994 \ Rules and Procedures for Adjudication of Applications for Asylum or Withholding of Deportation and for Employment Authorization [59 FR 62284 - 62303][FR 70-94] \ 7. Employment Authorization (Section 208.7)
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7. Employment Authorization (Section 208.7)
Proposed Rule: The proposed rule would have amended the regulations governing eligibility of asylum applicants for employment authorization in the following manner: An application for employment authorization (Form I-765) could be submitted to the INS no earlier than 150 days after the date on which a complete application for asylum was filed. If the asylum application was denied by an immigration judge or an asylum officer within the 150-day period, the applicant would not be eligible to apply for employme
nt authorization. After 150 days, the INS would have 30 days from the date of the filing of the application for employment authorization to adjudicate the application for employment authorization. If the INS failed to adjudicate the application for employment authorization within the 30-day period, the applicant would be eligible for interim employment authorization. If the application for asylum was denied by an immigration judge or an asylum officer within this 30-day period, the application for employmen
t authorization would be denied. The 150- and 180-day periods would be extended by any delay sought or caused by the applicant. The proposed rule also would have prohibited an applicant for asylum who has been convicted of an aggravated felony from applying for or being granted employment authorization. If an applicant who has been convicted of an aggravated felony has previously been granted employment authorization, the employment authorization would be revoked. Finally, an applicant who inexcusably faile
d to appear for a scheduled interview before an asylum officer or a hearing before the immigration judge would not be granted employment authorization. The proposed rule also would have amended the current rule by requiring a fee for the filing of an initial application for employment authorization.
Comments: A few comments supported these proposals as an appropriate balance between meeting the needs of asylum applicants while discouraging frivolous claims. A greater number of comments criticized these provisions for imposing economic hardship on asylum applicants. The comments stated that many applicants arrive in the United States with few belongings, no money, and no network of family or friends to provide them assistance. Furthermore, the United States does not provide public assistance benefits to
most people who apply for asylum. As a result, asylum applicants would be forced to work illegally in jobs where they would be underpaid and treated poorly, but would have no means of redress because of the fear of reprisals. Other comments claimed that the rule would violate the right to work of asylum applicants and is inconsistent with the 1951 Convention Relating to the Status of Refugees, 189 U.N.T.S. 150, 19 U.S.T. 6260, T.I.A.S. 6577, and the 1967 Protocol Relating to the Status of Refugees, 606 U.N
.T.S. 267, 19 U.S.T. 6223, T.I.A.S. 6577, because it creates an obstacle to the filing of an asylum application. Comments also stated that the rule would deny due process to asylum applicants because they would be unable to afford attorneys to represent them. Numerous other comments claimed that the rule would impose new burdens on social service organizations and state and local governments because asylum applicants unable to work will turn to these sources for assistance.
One comment specifically observed that a greater number of Cubans and Haitians will apply for cash and medical benefits under the Refugee Education Assistance Act of 1980, 8 U.S.C. 1522 note, and suggested that Cubans and Haitians be exempt from the employment authorization limitations under 8 CFR 208.7(a). Another comment contended that applicants paroled into the United States to file asylum claims will lose their work authorization under the proposed rule, which would be unjust because many such parolee
s have been recognized by the INS to have credible asylum claims.
Some comments indicated that the proposed rule is confusing because it does not specify that persons granted asylum are immediately eligible for work authorization and does not provide sufficient detail on how the 150-day waiting period will be measured. Other comments expressed doubt that asylum applicants would actually receive work authorization 180 days after the filing of their applications because of difficulty and confusion in applying the 150-day waiting period.
Many comments advocated eliminating the waiting period and maintaining the current rule, which allows immediate applications for employment authorization and issuance within 90 days. Some comments suggested a decrease in the waiting period with one specifically stating that employment authorization valid for 3 to 6 months should be granted at the time of the interview or within 90 days, except for cases deemed "frivolous" or "manifestly unfounded." Another comment advised providing exceptions to the waiting
period by granting employment authorization immediately or within 90 days to applicants who demonstrate hardship or economic need (such as those with no relatives in the United States or who have small children). Another comment advocated issuing employment authorization at the time of the interview or hearing because it would ensure that applicants appear for their interview or hearing and allow the applicant to receive employment authorization sooner.
A number of comments suggested clarification of the 150-day waiting period. One comment noted that the 150-day period should begin when the application is received by the INS, rather than when the application is actually processed. Some comments argued that the INS should notify the applicant in writing of the date of receipt and whether the application is complete. Other comments criticized the provision for an extension of the 150-day period in the case of delays caused by the applicant, and one comment
recommended that this aspect be eliminated. Another comment suggested, however, that the applicant be notified when additional information is required and the waiting period be extended only if the additional information is not provided. Other comments asked for clarification as to what actions serve to extend the waiting period, and one comment requested that a mechanism to contest the extension be provided.
Finally, some comments opposed the inability of the applicant to obtain work authorization during the appeal period if his or her claim is denied by the immigration judge within the 180-day period. One comment noted that the applicant's access to counsel will be jeopardized on appeal while another observed that negative decisions frequently are reversed. A comment stated that such an applicant may face the choice of either starving or returning to a country where he or she faces persecution. Comments also s
tated that a decrease in appeals will hinder proper interpretation of the law by preventing the presentation of novel legal issues. These comments suggested that employment authorization be granted to applicants during the appeal process or that an exception for economic necessity be provided.
Response and Disposition: The Department strongly believes that the asylum process must be separated from the employment authorization process. This rule will discourage applicants from filing meritless claims solely as a means to obtain employment authorization. More important, the rule provides legitimate refugees with lawful employment authorization. When the system is fully operational, asylum officers are expected to grant or refer affirmative claims within about 60 days. Thus, persons with bona fide a
sylum claims would get work authorization in approximately the same time as the current 90-day period for adjudicating work authorization applications. All applicants could have work authorization after 180 days, unless their claims have been denied by an immigration judge. Under existing authority, work authorization may be granted to persons who are paroled into the United States by the INS. 8 CFR 274a.12(c)(11). This provision, which can be employed in the case of asylum applicants seeking admission at a
port of entry to the United States and paroled into the country, is not changed in this rule.
The comments presented on this issue have been carefully considered. Particular attention was given to the recommendations that alternative means be established to adjudicate employment authorization on the basis of the merits of the claim or on the economic situation of the asylum applicant. Either alternative would invite a large number of applications, thus diverting resources and undermining the goals of asylum reform. Using a merit-based standard would require the INS to adjudicate asylum application
s for work authorization eligibility either through a paper evaluation or a separate work authorization interview. A need-based standard would impose a similar administrative burden. Given that the vast majority of those deserving asylum will promptly receive their decisions and, hence, their employment authorization, this burden would not be justified by the results achieved.
The Department also considered the claim that asylum applicants will disregard the law and work without authorization. While this is possible, it also is true that unlawful employment is a phenomenon not limited to asylum applicants, but is found among many categories of persons who have illegally entered or remained in the United States. The Department does not believe that the solution to this problem is to loosen eligibility standards for employment authorization. This is particularly so because of the e
vidence that many persons apply for asylum primarily as a means of being authorized to work. These rules will discourage applications filed for such reasons and thus will enable the INS to more promptly grant asylum--and provide work authorization--to those who merit this relief.
These provisions of the proposed rule also are in keeping with United States obligations under international law. Article 17 of the 1951 Convention provides that a "[c]ontracting State shall accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country in the same circumstances, as regards the right to engage in wage-earning employment." Under this rule, refugees--i.e., persons granted asylum--are immediately eligible to apply for and receive
employment authorization. Article 17 imposes no further obligations on access to employment authorization for those who are applying for asylum.
The Department also has carefully considered the comments directed to the impact that new rules on employment authorization would have upon the states. These concerns are addressed under heading 3.
Consistent with its decision to remove the requirement for an asylum application fee, the Department will not adopt in this final rule a requirement that asylum applicants pay a fee to accompany an initial application for employment authorization under 8 CFR 274a.13. The fee requirement will be retained for applications to renew employment authorization.
The provisions of the proposed rule are adopted with several amendments in the final rule. Sections 208.3(c)(5) and 208.7(a)(1) of the final rule will be amended to provide that the 150-day period shall commence upon the receipt by the INS of a complete application for asylum. The filing of an incomplete application shall not commence the 150-day period provided that the INS has returned the application by mailing it within 30 days in accordance with 8 CFR 208.3(c)(5). Section 208.7(a)(4) also will be amend
ed to specify that an applicant's failure without good cause to appear for an interview under section 208.9(a) precludes the applicant from receiving employment authorization under section 274a.12(c)(8). Failure to appear without good cause to receive the decision of the asylum officer under section 208.9(d) shall be treated as delay caused by the applicant and shall toll the 150-day period. A new paragraph 208.7(a)(5) will be added to specify that the new rules governing eligibility for employment authoriz
ation do not apply to persons whose asylum applications have been filed prior to January 4, 1995. Finally, section 208.2(b) will be amended to state that an immigration judge may permit a referred applicant to file an amended application, but that any delay caused by such a request shall extend the period within which the applicant may not apply for employment authorization.
8. Renewal of Employment Authorization (Section 208.7(d))
Proposed Rule: Section 208.7(d) would be amended to require that in order for employment authorization to be renewed before its expiration, an application must be received by the INS at least 90 days before the employment authorization expires. Under current regulations, applications for renewal must be received at least 60 days prior to expiration.
Comment: Several comments criticized this proposal for placing an unfair and unnecessary burden upon applicants for renewal. The comments stated that the INS should be able to process renewals within 60 days. Some comments stated that renewal of work authorization should be assigned to INS District Offices, and not to the INS Service Centers, because the District Offices are more likely to have access to information regarding the alien's status. One comment approved of the practice of charging a fee for ren
ewal of work authorization.
Response and Disposition: Under 8 CFR 274a.13(d), the INS district director shall adjudicate the application for renewal of employment authorization within 90 days of receipt.
The lack of uniformity between the current 60-day rule for filing renewal applications and the 90-day rule for adjudicating such applications led to disagreements between applicants and the INS. The INS believes that fewer disputes will result if these periods are uniform. The INS agrees that many such applications can be adjudicated in significantly less than 90 days, and will continue to work for improvements in this area. Due to the workloads involved in processing a large volume of employment authorizat
ion requests, however, the Department believes that it would not be prudent to establish a shorter mandatory period for the adjudication of such requests. Accordingly, these provisions of the proposed rule will be adopted without amendment in the final rule.
9. Interview and Procedure (Section 208.9(a))
a. Mandatory vs. Discretionary Interview
Proposed Rule: Current regulations require that for each application for asylum within the jurisdiction of an asylum officer, an interview shall be conducted by that officer. The proposed rule would provide that interviews on asylum applications are discretionary.
Comments: Many comments opposed making interviews discretionary. Some rested their objections in part on constitutional grounds; these concerns have been addressed above in subheading 2. The comments also expressed concern that direct referral of claims without an interview to an immigration judge is inappropriate because the written application often is not a reliable indicator of the strength or weakness of the applicant's claim. The comments argued that a system of discretionary interviews and direct re
ferrals would be unfair because many applicants are unable fully to articulate their claim in writing due to language barriers, lack of understanding of the laws governing asylum, or innocent reliance on unscrupulous paid preparers of asylum applications. These comments argued as well that the asylum interview is of significant benefit because it allows the applicant to present the facts of the case in a nonadversarial manner and compels the asylum officer to consider the full range of facts, including all
relevant country conditions, before making a determination in the case. While many comments acknowledged the advantages of adversarial proceedings before an immigration judge in eliciting the facts of an asylum claim, the commentators generally felt that the value of an asylum interview should be given greater weight.
Several comments stated that the proposed rule would be contrary to the legislative intent behind section 208 of the Act, 8 U.S.C. 1158, because Congress contemplated that asylum determinations would be made independent of exclusion and deportation proceedings.
Several comments claimed that the system of discretionary referrals would actually make the process less efficient because applicants would be forced to present their claims in a longer, more formal hearing before an immigration judge. The comments claimed that this would increase overall expense to the Government, exacerbate the problem of delay in asylum adjudications, and undermine the intent of the proposed rule to streamline the asylum system.
The vast majority of the comments directed to this question stated that asylum interviews should be mandatory. However, a large number of these comments also suggested that, as an alternative, direct referral without interview should take place only in circumstances where the written application indicates that the claim is frivolous or manifestly unfounded. Some comments criticized the proposed rule for making it appear that the granting of interviews to asylum applicants will be the exception, not the rul
e. The comments also stated that applicants deserve to know the standard under which the INS will determine whether or not to grant an interview.
Response and Disposition: The Department has carefully considered these comments and determined that the goal of streamlining asylum adjudications can be met without changing the present rule that mandates the opportunity for an interview of each asylum applicant. Accordingly, the present rule is retained and there is no provision for immediate referral of cases, without an interview, to an immigration judge. The rule is clarified to state that an interview will be granted for applications that are complete
within the meaning of Sec. 208.3(c)(5). Section 208.10 also is amended to provide that the failure without good cause of an applicant to appear for a scheduled interview under Sec. 208.9(a) may be deemed to constitute a waiver of the right to an interview with an asylum officer or, in the case of an applicant who is a stowaway, alien crewman, alien temporarily excludable under section 235(c) of the Act, 8 U.S.C. 1225, or in current lawful immigration status, may be deemed to constitute an abandonment of th
b. Procedural Issues
Proposed Rule: The proposed rule would have amended 8 CFR 208.9 (b) and (c) to require the applicant to provide full identifying information at the time of the application. Section 208.9(d) would have been amended to require that, at the conclusion of the interview, the applicant be notified that he or she must appear in person to receive the written decision of the asylum officer. A new section 208.9(g) would have been added to specify rules regarding the use of interpreters during interviews.
Comment: One comment stated that the proposed rule is unclear on whether witnesses could testify at the interview because section 208.9(b) of the rule states that the applicant "may . . . submit affidavits of witnesses" while section 208.9(g) refers to live witnesses.
Response and Disposition: An asylum applicant may present live witness testimony at the time of his or her interview. In the final rule, section 208.9(b) is amended to clarify this point.
Comment: Several comments criticized the requirement in the proposed rule that the applicant be informed that he or she must appear in person to acknowledge receipt of the written decision of the asylum officer. The comments stated that this requirement would be inefficient and would result in applicants having to make an unnecessary return trip to the Asylum Office, where they may have to wait for a long period of time. A comment also questioned whether those who are interviewed in "circuit ride" locations
would be able to go to those locations, or would be required to travel to the more distant Asylum Office with jurisdiction over their cases. Several comments suggested that written decisions be served by certified mail or that mail service be used in cases where the applicant has an attorney or registered representative.
Response and Disposition: In order to streamline asylum adjudications, there must be a reliable system to accomplish and verify service of the decision to grant, refer, or deny the claim and, if applicable, service of the charging document. The INS experience with certified mail under the current rule demonstrates that this may not be the most effective method to meet this goal. If the applicant has provided an invalid address or has moved without notifying the INS, delivery most often will not be accomplis
hed. In addition, postal delays and difficulties in processing return receipt cards detract from the INS's ability to confirm timely delivery. It may be somewhat inconvenient to make a return trip to the Asylum Office; however, under this system, the applicant will receive his or her decision promptly. If the decision is to grant the claim, the applicant will be able to apply more quickly for employment authorization and other benefits. If the decision is to refer the claim, the applicant will receive a cha
rging document that will state the date and time of required appearance in immigration court, and will be able to plan for that proceeding. Finally, both the asylum adjudications and removal proceedings systems will benefit if there are fewer disputes regarding the service of decisions and charging documents. In cases where the applicant has failed to appear at the appointed time to receive his or her decision, certified mail will be used in lieu of personal service to deliver the decision.
The INS has carefully considered whether the rule should be amended to permit the use of mail service in the case of applicants who have an attorney or registered representative. The Department has declined to adopt that proposal at this time, chiefly because of concerns that an attorney retained for the asylum application process may not remain as the applicant's attorney in exclusion or deportation proceedings. However, as this final rule is implemented, the INS will work with attorneys and advocacy organ
izations to consider this and other proposals relating to service of decisions.
These provisions of the proposed rule have been adopted with an amendment to clarify that an applicant's failure to appear to receive and acknowledge receipt of the decision of the asylum officer shall be treated as delay caused by the applicant for purposes of 8 CFR 208.7(a)(3) and shall extend the period within which the applicant may not apply for employment authorization by the number of days until the applicant does appear to receive the decision or until the applicant appears before an immigration jud
ge in response to the issuance of a charging document under 8 CFR 208.14(b).
Comment: Several comments addressed the proposed rule's provisions governing the use of interpreters (8 CFR 208.9(g)). Some comments criticized the requirement, also contained in current regulations, that the applicant who does not wish to proceed in English provide an interpreter for the asylum interview. These comments stated that this will impose a financial burden on applicants and that it may be difficult for applicants to find competent interpreters, particularly for certain languages. Other comments
recommended that the rule be amended to specifically permit immediate family members to serve as interpreters. Some comments suggested that the rule be more lenient in cases where the applicant has failed to provide an interpreter. One comment stated that the proposed rule should be amended to prohibit representatives, as well as attorneys and immediate family members, from serving as interpreters.
Response and Disposition: The requirement that asylum applicants wishing to proceed in a language other than English provide an interpreter is currently enforced by the INS as an operations policy. Any other rule would impose an undue financial burden on the Government. Currently, asylum applicants may use a family member, friend, or volunteer from the community, or may hire a professional interpreter. The proposed rule was intended to adopt this policy into the regulations. The recommendation that a regist
ered representative, as well as an attorney, be prohibited from serving as an interpreter will be adopted in the final rule; an advocate should not be called upon to serve two distinct roles in the course of a proceeding. However, the final rule does not prohibit an employee of the applicant's attorney or registered representative, such as a paralegal, from serving as the applicant's interpreter. Finally, while an applicant's failure without good cause to provide an interpreter may be considered as a failur
e without good cause to appear for the asylum interview itself, the asylum officer has discretion in applying this sanction. If the failure to provide an interpreter is justified by good cause, the INS will not consider the applicant to have waived his or her right to an interview or to have abandoned his or her asylum application.
These provisions of the proposed rule are retained with appropriate amendments in the final rule.
10. Failure to Appear (Section 208.10)
New Amendment: The proposed rule would have made no amendment to 8 CFR 208.10. However, in the course of reviewing the comments regarding the interview of asylum applicants, it was concluded that this section should be clarified to modify the provision that an applicant who fails to appear for a scheduled interview may be deemed to have abandoned his or her application for asylum. The final rule will modify this section to provide that failure without good cause to appear for a scheduled interview may be de
emed to constitute a waiver of the right to an interview or, in the case of an alien crewman, stowaway, person excludable under section 235(c) of the Act, 8 U.S.C. 1225, or person in current lawful immigration status, may be deemed to constitute an abandonment of the application. The final rule also will amend 8 CFR 208.14(b) to provide that an applicant who is deemed to have waived the right to his or her asylum interview in accordance with this section may be referred to an immigration judge for adjudicat
ion in the course of exclusion or deportation proceedings.
11. Comments From the Department of State (Section 208.11)
Proposed Rule: As amended by the proposed rule, 8 CFR 208.11 would retain the practice of submitting asylum applications to the Department of State but would eliminate the mandatory period during which asylum officers and immigration judges must await the receipt of State Department comments in individual cases. The State Department could provide such comments, but the intent of the rule is to change the role of the State Department to one of providing detailed and current country conditions information.
Comments: Comments supported this change. Several comments stated that applicants should have access to the country conditions information provided by the State Department and relied upon by INS, and that applicants should continue to receive copies of case-specific comments from the State Department. Some comments stated that the applicant should be given 30 days to respond to any such comments from the State Department.
Response and Disposition: Under section 208.11(c) of the rule, applicants will receive copies of case-specific comments provided by the Department of State. Immigration judges will have discretion to grant an appropriate time period, if necessary, for rebuttal. A uniform and mandatory waiting period will not be beneficial because it would add unnecessary delay to the process. Copies of generic country conditions information relied upon by immigration judges also will become part of the record available to
the applicant. The INS currently is considering means by which country conditions information used by asylum officers may be made more generally available and will continue to work with attorneys, advocacy groups, and other interested members of the public in accomplishing this goal. This provision of the proposed rule is adopted in the final rule with amendments to clarify the text and eliminate unnecessary words.