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A federal district court
in Minnesota has approved the settlement of litigation on behalf of a
nationwide class that challenged delays on the part of the former
Immigration and Naturalization Service (now U.S. Citizenship and
Immigration Services, or CIS) in adjudicating applications for
adjustment of status filed by asylees. If approved, the settlement will
require CIS to grant an additional 31,000 asylee adjustment applications
over the next three years.
At the time that
the lawsuit was filed in 2002, section 209 of the Immigration and
Nationality Act set a cap of 10,000 on the number of asylee adjustment
applications that could be granted in a single year. Asylees can apply
for adjustment to lawful permanent residence after they have been
physically present in the U.S. for one year after having been granted
asylum. However, because substantially more than 10,000 noncitizens are
granted asylum each year, a significant backlog has developed. The
plaintiffs alleged that the INS added to this backlog by mismanaging the
allocation of available adjustments and failing each year to use the
10,000 asylee adjustment numbers allowed under the cap. In 2004, the
district court ruled in favor of the plaintiffs (Ngwanyia v. U.S.
Attorney General, 302 F. Supp. 2d 1076 (D. Minn. 2004)), and the
defendants appealed. The parties then negotiated and reached the
settlement that has now been provisionally approved by the court.
Under the
agreement, the parties estimate that 31,000 asylee adjustment numbers
were available and not used in prior years, and these will be used over
the next three fiscal years, in addition to the 10,000 numbers per year
under the cap, which must also be used, beginning with the year in which
the settlement takes effect. After the settlement was approved,
President Bush signed the REAL ID Act (on May 11, 2005), which
eliminated the statutory cap on asylum adjustment (see “REAL ID Enacted:
Imposes Rigid Driver’s License Requirements,” p. 1). However, it should
be noted that the settlement provides a significant benefit on top of
the elimination of the cap. While the statute does not require the
government to grant any particular number of asylee adjustments each
year, the settlement requires CIS to adjust at least 61,000 asylees over
the next three years.
The settlement
also requires CIS to establish a method for asylee adjustment applicants
to contact the agency to determine the status of their applications,
which is likely to be available by email.
The plaintiffs
also challenged the INS’s requiring asylees to apply for employment
authorization documents (EADs), since asylees are authorized to work
incident to their status. After the litigation was brought, the INS
published guidance to clarify that asylees are authorized to work
whether or not they have an EAD, while also noting that an EAD provides
a secure and useful form of proving work authorization. Under the
settlement, CIS affirms the inherent employment authorization of asylees
and also agrees to establish a process by which asylees may apply for
EADs valid for multiple-year periods, up to five years. The agreement
also requires CIS to establish a process by which asylees can make
inquiries regarding the status of applications for EADs.
The full agreement
and further information is available on the USCIS website,
http://uscis.gov/graphics/index.htm.
Ngwanyia v. U.S. Attorney
General, No. 02-502 (RHK)
(D. Minn., settlement approved, June 15, 2005).
By
Linton Joaquin, NILC executive director
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