Class Action Update: Rosario v. USCIS, Case No. C15-0813JLR (W.D. Wash. July 26, 2018)

Great news for asylum seekers – as of February 7, 2022, the Rosario class has been fully restored. In this certified nationwide class action filed in the federal court for the Western District of Washington, asylum applicants whose initial applications for employment authorization documents (EADs) were not adjudicated within the 30-day period required by regulation (8 C.F.R. § 208.7(a)(1)) sought a court order compelling U.S. Citizenship and Immigration Services (USCIS) to comply with the regulatory timeframe. Following summary judgment briefing by both parties, the court ruled in Plaintiffs’ favor on July 26, 2018. The court ordered USCIS to follow the law and timely adjudicate initial EAD asylum applications.

Nearly two years later, on June 22, 2020, the government published a new rule eliminating the 30-day processing deadline for initial asylum EAD applications. Removal of 30-day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications Rule, 85 Fed. Reg. 37,502 (June 22, 2020) (Timeline Repeal Rule). However, a different federal court held that this new rule could not be applied to members of Casa de Maryland (CASA) and Asylum Seekers Advocacy Project (ASAP). Casa de Maryland Inc. et. al. v. Chad Wolf et. al., No. 8:20-cv-02118-PX (D.D.C. Sept. 11, 2020). Therefore, members of ASAP and CASA who filed initial asylum EAD applications remained Rosario class members entitled to adjudication within 30 days.

Recently, on the evening of February 7, 2022, the U.S. District Court for the District of Columbia, in the case, AsylumWorks, et. al. v. Alejandro N. Mayorkas, et. al., vacated the June 22, 2020, Timeline Repeal Rule and another final rule issued on June 26, 2020, Asylum Application, Interview, and Employment Authorization for Applicants Rule, 85 Fed. Reg. 38,532 (June 26, 2020) (EAD Bar Rule). See AsylumWorks v. Mayorkas, No. 1:20-cv-03815-BAH, 2022 WL 355213 (D.D.C. Feb. 7, 2022) (the “AsylumWorks Order”). USCIS advised on its website, “Effective immediately, USCIS has ceased applying these rules to asylum applicants. USCIS will soon share additional information regarding how this order impacts applicants and USCIS processes.” See https://www.uscis.gov/i-765 (last visited February 16, 2022).

As stated above, the Timeline Repeal Rule had eliminated the 30-day processing timeline at 8 C.F.R. § 208.7(a)(1) for initial EADs for asylum seekers that formed the basis of the Rosario court’s permanent injunction. Rosario, Case No. C15-0813JLR, ECF No. 127 at 12 (finding that USCIS was in violation of 8 C.F.R. § 208.7(a)(1) and enjoining USCIS “from further failing to adhere to the 30-day deadline for adjudicating EAD applications, as set forth in 8 C.F.R. § 208.7(a)(1)”). With the vacatur of the Timeline Repeal Rule, the AsylumWorks Order restores the 30-day processing timeline to 8 C.F.R. § 208.7(a)(1) and consequently expands the class of individuals entitled to protection under the Rosario court’s July 26, 2018, injunction to again include all initial asylum EAD applicants. See Rosario, Case No. C15-0813JLR, ECF No. 127 at 4-5 (defining the class to include “applicants for whom 30 days has accrued or will accrue under the applicable regulations, 8 C.F.R. §§ 103.2(b)(10)(i), 208.7(a)(2), (a)(4)”).

Read the full article here.