As explained, eligibility for employment authorization under that section is contingent on the passage of 180 days—not counting any delays requested or caused by the applicant—from the filing of the application. See 8 U.S.C. § 1158(d)(2); 8 C.F.R. § 274a.12(c)(8); 8 C.F.R. § 208.7.

But such an individual may have sought a form of relief for which an aggravated felony conviction served as either an automatic or a discretionary bar. Compare, e.g., 8 U.S.C. § 1158(b)(2)(B)(i) (aggravated felony conviction bars grant of asylum) with § 1231(b)(3)(B) (aggravated felony conviction bars withholding of removal, a related form of relief, only when it has been determined to be a “particularly serious crime”); Matter of N-A-M-, 24 I.&N. Dec. 336, 342 (BIA 2007) (explaining that the determination of whether an offense is “particularly serious” so as to bar withholding of removal 12 turns on “a variety of factors” including “the nature of the conviction, the type of sentence imposed, and the circumstances and underlying facts of the conviction”). In addition, a rule that requires litigants to obtain and introduce evidence of the cause of the defendant’s deportation—likely resulting in disputed issues of fact requiring resolution—imposes a significant and unwelcome burden on appellate courts whose review is generally confined to the state court record below.

FY 2012 Statistical Year Book, supra 17, at R3. - 32 - States, 8 U.S.C. § 1158(a)(2)(B), and requires demonstrated proof of a "well- founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A); see also Carcamo-Flores v. INS, 805 F.2d 60, 62-63 (2d Cir. 1986).

The INA (Immigration and Nationality Act) authorizes DHS to adopt regulations authorizing employment for asylum applicants. 8 U.S.C. §1158(d)(2). While regulations prescribe that USCIS has discretion to grant or deny EAD applications to well over a dozen categories of immigrants and non-immigrants, the regulations afford USCIS no such discretion with respect to EAD applications filed by asylum applicants.

VI. THE REFUGEE PLAINTIFFS’ ARRIVAL ON THE AMERICAN SHOAL LIGHTHOUSE CONSTITUTES PRESENCE IN THE UNITED STATES UNDER 8 U.S.C. §1225(a)(1) AND “PHYSICALLY PRESENT IN THE UNITED STATES” PURSUANT TO 8 U.S.C. § 1158(a) United States law, in 8 U.S.C. § 1225 is applicable only to matters involving inspection by immigration officers, expedited removal of Case 1:16-cv-21868-DPG Document 11 Entered on FLSD Docket 06/01/2016 Page 30 of 43 31 inadmissible arriving aliens, and referrals for hearing. The plain language of § 1225(a)(1) describes the inspection process for aliens: (a) Inspection (1) Aliens treated as applicants for admission An alien present in the United Sates who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) shall be deemed for purposes of this chapter an applicant for admission.

In fact, individuals may apply for asylum whether they entered legally or illegally, and they may apply for asylum either defensively (while in removal proceedings) or affirmatively. 8 U.S.C. § 1158(a)(1); 8 C.F.R. § 208.2; see also EOIR Fact Sheet at 3.

But the administering agencies are not required to pursue removal or other sanctions in every case, as other congressional purposes may counsel in favor of forbearance or even an affirmative grant of relief. See, e.g., 8 U.S.C. § 1158 (asylum); § 1254a (temporary protected status); § 1227(a)(1)(E)(iii) (humanitarian waiver of deportability to assure family unity); § 1229b (cancellation of removal); § 1182 (d)(5) (parole); § 1182(a)(6)(A)(ii) (exclusions from inadmissibility); 8 C.F.R. § 274a.12(c)(14) (limited employment authorizations); Ragsdale Decl. ¶¶ 7, 9, 10, 18, 41 (“[T]he federal government often has affirmative reasons for not bringing immigration charges against an alien.”)

The INA provides that a “refugee” is an individual “unable or unwilling to return to . . . [his or her country of nationality] because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1158(b)(1). Not all refugees are granted admission to the United States; instead, Congress granted the President explicit authority to determine the number of refugee admissions in a given fiscal year, 8 U.S.C. § 1157(a)(2); to determine which refugees are of “special humanitarian concern to the United States” and to allocate admissions accordingly, 8 U.S.C. § 1157(a)(3); and to increase the number of refugee admissions as necessary to account for emergencies, 8 U.S.C. § 1157(b).

ment at 3 (emphasis added); see also Reno v. Flores, 507 U.S. 292, 294, 113 S. Ct. 1439, 1443, 123 L. Ed. 2d 1 (1993) (noting that the litigation applied to “alien juveniles who are not accompanied by their parents or other related adults”). Case 2:85-cv-04544-DMG-AGR Document 184 Filed 08/06/15 Page 43 of 60 Page ID #:2811 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 • The Agreement contains many provisions clearly designed for UACs, including provisions: governing the placement of class members in facilities licensed to care for “dependent children,” Agreement at 3; requiring that any custodian to which a minor is released provide for the minor’s “financial well-being” (yet accompanying parents pursuing asylum in standard removal proceedings or those pursuing protection in withholding/deferral only proceedings face significant limitations on their ability to lawfully work in the United States, 8 U.S.C. § 1158(d)(2), 8 C.F.R. § 274a.12(c)(8)), Agreement at 10; requiring notice to the INS upon the initiation of dependency proceedings, id. at 11; authorizing the INS to “assume legal custody of any minor whose custodian fails to comply with the agreement,” id.; authorizing suitability assessments for possible custodians, id.; and requiring the INS to make “continuous efforts . . . toward family reunification,” id.

The Secretary’s discretion is at its apex when the removal of aliens is at issue. The INA -4- Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 22 of 75 expressly authorizes immigration officials to grant aliens certain forms of discretionary relief from removal, including parole, 8 U.S.C. § 1182(d)(5)(A); asylum, id. § 1158(b)(1)(A); and cancellation of removal, id. § 1229b. Indeed, “[t]he broad discretion exercised by immigration officials” is a “principal feature of the removal system.”