Nobody makes simple things complex better than the government.  The new 16-page, single-spaced memorandum on the Asylum Clock is a perfect example.  As far as I can tell, there are no major changes to how the Clock works, but there is some new “guidance.” 

I should say at the outset that I think the Asylum Clock is one of the stupidest ideas to be put into law since Prohibition (I’m a big drinker), so my comments here should be taken with a grain of salt (also, I’m drunk).  With that in mind, here are some observations on the new memo:

The memo clarifies that cases referred to the IJ from the Asylum Office with less than 75 days on the clock are “expedited cases,” meaning that the IJ “should” complete them within 180 days from the date that the application was filed.  To comply with this rule, IJs sometimes bump non-expedited cases, thus causing major delays for other respondents.  This seems like a lot of trouble just to prevent an asylum applicant from getting her EAD.  Given the massive delays in all Immigration Courts, why not simply make all cases non-expedited?

The memo does not change the requirement that to start the clock in a defensive case, the I-589 must be filed with the Immigration Judge in open court.  This means that if the hearing is scheduled for next year, the Clock will not start until the application is filed in court next year.  The easy solution here would be to allow applicants to file their I-589 forms with the clerk (this would have the added advantage of avoiding problems with the ever-annoying one-year asylum bar).  Clerks are competent to determine whether an application is substantially complete and, if so, they could start the Clock.

One bit of clarification that seems helpful is that the Clock will restart at the next hearing after a delay caused by the applicant.  Where I practice, different IJs have different policies on the Clock, and this will hopefully resolve the issue of restarting the Clock after the applicant causes a delay.

For a more detailed discussion of the new memo, see the American Immigration Counsel’s statement released on Monday, which offers some helpful criticism.

The bottom line for me is that the Asylum Clock should be completely re-done.  The Clock should run from the date that the application is filed.  It should only be stopped if the IJ (or the Asylum Officer) determines that the applicant is purposely causing a delay in order to abuse the system and obtain an EAD.  I understand the need for the Clock: To prevent aliens from filing for asylum solely to obtain an EAD, and so I do not support returning to the old days when asylum applicants got an EAD immediately after filing (and many people abused the system).  However, the pendulum has swung way too far, and we waste way too much time and energy on this issue.  There are far fewer frivolous cases today, and the Asylum Clock mainly serves to make life more difficult for legitimate asylum seekers.  By shifting the presumption in favor of asylum seekers, we can restore some of the balance and help–rather than harm–people fleeing persecution.