After changes in immigration law in 1995, when an alien applies for asylum, he or she can only obtain a document from USCIS authorizing him or her to work if his or her asylum case is pending more than 180 days. The immigration court maintains an “asylum clock” to calculate how long a case has been pending. Like everything else in the law, the issue becomes the definition of the words, in this case, “pending,” and like everything else in the law, it gets complicated. The rules of the asylum clock were shrouded in mystery. The rules were designed to prevent an asylum applicant from delaying his or her case so it would be pending more than 180 days. People seeking asylum need to feed themselves and without receiving permission to work, it is a very difficult thing to do. Should the clock stop in a case before 180 days has passed, an asylum applicant may have to wait years for the resolution of his or her case without having the right to work. Thus, making sure the clock does not stop is a matter of great importance.

For reasons I do not know, many immigration judges, at least in San Diego, where I practice, delight in stopping the asylum clock. Because the procedures for stopping and starting the clock were veiled in secrecy, clients’ clocks have been stopped with little or no understanding by attorneys of why. Rules about re-starting the clock were also hidden, leaving attorneys with little ability to help their clients with clock issues. One seasoned practitioner once told me that she does not even bother with clock issues because the immigration judges are going to stop it one way or the other.

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Today I write again on a technical matter, discussing the case, Matter of Silva-Trevino, again. As you may recall from writings  here and here  and here, in this case, the then-attorney general, Michael Mukasey, issued a decision deviating from the prevailing law regarding what an immigration judge may consider in determining whether someone committed a crime of moral turpitude. This is important because depending on the number of such crimes, when they were committed, and the severity of the sentence, conviction for crimes of moral turpitude could result in exclusion, deportation, or ineligibility for relief from deportation.

The problem addressed in Matter of Silva-Trevino is how to determine whether someone was convicted of a crime of moral turpitude. This invites two questions:

1. What crime was the person convicted of?

2. Is the crime a crime of moral turpitude?

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