Unused Asylee Adjustment Numbers From Prior Years Still Available; All Asylees Must Receive Continuously Valid Work Authorization Document

IMMIGRATION LAW & POLICY

Obtaining
Lawful Permanent Resident
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Unused asylee adjustment numbers from prior years still available; all asylees must receive continuously valid work authorization document
Immigrants' Rights Update, Vol. 18, No. 2, April 2, 2004

In a nationwide class action, a federal district court has found “that all refugee admission numbers that have been made available for asylee adjustments [to permanent residence] in prior years but [that] remain unused are presently available to be used for asylee adjustment” and that all asylees must be provided a work authorization document immediately upon being granted asylee status. The work authorization document issued to asylees, the court said, must contain their fingerprint and photograph—and, more importantly, it must be “continuously valid for the duration of the [person’s] status as an asylee.”

The lawsuit in which the U.S. District Court for the District of Minnesota issued partial summary judgment on these two issues was brought on behalf of all asylees in the United States who have applied for lawful permanent resident status and whose applications remain pending. The plaintiffs alleged that the Immigration and Naturalization Service (which was dissolved last year and its functions transferred to a handful of agencies within the new Dept. of Homeland Security, including U.S. Citizenship and Immigration Services) had failed to issue approximately 22,000 asylee immigrant visas that should have been allocated to waiting plaintiffs and class members. The plaintiffs also contended that, in part because of INS mismanagement, at the time they brought the lawsuit there was a backlog of more than 96,000 applications for adjustment by asylees.

The lawsuit also challenged the INS’s requirement that asylee adjustment applicants pay a fee (currently $120) to renew their employment authorization documents every year. In addition, the plaintiffs argued that the immigration services’ practice of automatically issuing an employment authorization document (EAD) only to asylees granted asylum by asylum officers, while requiring those granted asylum by immigration judges or the federal courts to apply separately for an EAD, is illegal.

The court was particularly forceful in agreeing with the plaintiffs’ arguments regarding the government’s duty under the law to provide work authorization documents to all asylees, saying that the government’s “violations are so widespread, so egregious, and so plainly harmful to asylees as a class as to constitute nothing short of a national embarrassment.” The judge described government-established procedures for providing asylees evidence of work authorization as “Kafkaesque.”

On the issue of whether asylee adjustment numbers made available by successive presidential administrations each fiscal year since 1992 are still available—since each year’s allotment of numbers was not used in its entirety (presumably because of mismanagement) by the immigration services to adjust the status of asylees to permanent residence—the court found that they are still available. The government, the court ordered, must “make an accounting of the precise number of asylee adjustment numbers made available . . . but not used by Defendants in each fiscal year since 1992.” In addition, the government must find out how many asylee adjustment numbers have been “misused” to adjust the status of certain asylees who were not subject to the per-year limits on how many asylees can adjust to permanent residence. (Such “exempt” asylees include certain Iraqi Kurds, Syrian Jews, and asylees who applied for asylum before 1990.) “Defendants,” the court ordered, “shall use all unused and misused asylee adjustment numbers made available in prior years to adjust the status of aylees, beginning at the start of the waiting list.”

The plaintiffs in the case are represented by the American Immigration Law Foundation, the Massachusetts Law Reform Institute, and the law firm of Dorsey & Whitney, LLP. The court’s partial summary judgement is available in PDF format at www.aila.org/fileViewer.aspx?docID=12262&index=0.

Ngwanyia v. Ashcroft, No. 02-CV-502 RHK/AJB,
2004 U.S. Dist. LEXIS 1975 (D.Minn., Feb. 12, 2004).