(EMPLOYMENT AUTHORIZATION STILL AVAILABLE IF CASE IS ADMINISTRATIVELY CLOSED)
© Attorney Farhad Sethna 2013
On September 6, 2013, the Administrative Appeals Office (“AAO”) decided a case that arose from the Texas Service Center. The appeal was taken even though the Texas Service Center granted employment authorization since the applicant’s underlying asylum case had been administratively closed by the immigration judge. However, the District Director of the TSC then “certified” the decision to the AAO (effectively, “certification of a decision” means the underlying court or decisionmaker seeks approval or guidance from a higher authority as to the accuracy of the decision).
The Administrative Appeals Office is a branch of the USCIS which handles appeals from denial of USCIS decisions. In this case, the AAO held that an alien who’s application for asylum was administratively closed may still continue to be eligible for employment authorization under 8 C.F.R. §274 a.12 (c) (8). (asylum applicant).
As background, the alien had filed for asylum. While the asylum application was pending, the alien had obtained employment authorization. Subsequently, the immigration judge issued an order closing the case because both the applicant as well as the DHS attorney agreed to do so. Therefore, while the case was closed, the alien applied for an extension or renewal of employment authorization.
The AAO determined that because the immigration judge had made a “interlocutory or non-final order rather than dismissing the case”, the alien remained eligible for employment authorization. The case remained “pending”. The AAO cited numerous decisions in support of its analysis that administrative closure had no legal effect because administratively closing a case is not a dismissal or a final decision.
It is important to know that in this particular case even though the applicant’s counsel and the government’s counsel as well as the immigration judge specifically noted that the Department of Homeland Security would continue to permit the applicant to receive work authorization, the case did not turn on that particular fact. Rather, the case turned on the issue that an order of administrative closure was not a final order, and therefore an administratively closed case continued to remain “pending”.
The holding on in this case therefore affects all such administratively closed cases where a respondent applies for a renewal of employment authorization.
Copyright, Farhad Sethna, Attorney, 2013
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.