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Greg Siskind on Immigration Law and Policy

COURT ORDERS USCIS TO STOP REQUIRING FBI NAME CHECKS PRIOR TO FINISHING NATURALIZATION CASES

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Wow. On the heels of a decision last week that resulted in USCIS agreeing to adjudicate adjustment applications pending more than 180 days even if an FBI name check is not complete, a federal district court in Pennsylvania has issued an order requiring USCIS to adjudicate four naturalization cases for long delayed applications and, more importantly, to revise its regulations to address delayed naturalization cases. USCIS will presumably appeal the decision, but this is something the agency cannot ignore without risk. Stay tuned. In the mean time, here is the case as well as some of the highlights from the ruling. Download natz_mandamus.pdf



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Based on a review of the facts and bedrock principles of administrative agency law, the Court finds that USCIS's name check requirement has (1) never been authorized by Congress; (2) is not mentioned or contemplated by any fair reading of the current USCIS regulations; and (3) may not, without USCIS initiating notice and comment procedures, be used to delay action on Plaintiffs petitions for naturalization, particularly because Plaintiffs have already undergone a name check in order to achieve LPR status and will clear the "fingerprint check" described in the Memorandum of January 25, 2008.





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This Court finds it problematic that the policy USCIS has adopted - to require not only a criminal background check, but a name check as well - was never subject to the notice and comment procedures of rule-making resulting in new regulations.




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The Court can only conclude that the USCIS policy to require name checks for all LPRs who want to become naturalized citizens, while undoubtedly well-intended, was a substantive change, which is having a "substantive adverse impact on [the Plaintiffs]".




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The Court concludes that even if the USCIS regulations are facially valid, they present unacceptable situations to Plaintiffs, who have been waiting between 30 and 47 months for action on their naturalization applications, without any explanation other than "name check pending."




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For all the above reasons, this Court finds USCIS's requirement of the name check for Plaintiffs, and the delay in completing it, is "without observance of procedure required by law." 5 U.S.C. 706.




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Ruling in favor of Plaintiffs, but only setting deadlines for USCIS action on their naturalization applications, would be similar to dealing only with the risks posed by the tip of an iceberg, but ignoring the submerged dangers - here, the unreasonable delays that have occurred.




These delays are caused by USCIS relying on the inadequately authorized FBI name check program, without any transparency or explanation to Plaintiffs of why their applications have been pending for some 30 to 47 months.




Another apt metaphor is the screaming two-year-old child who can be quickly appeased by giving in to demands, but doing so frequently only causes more serious, long-term problems as the child grows older. The Court has determined that it is necessary and appropriate to require USCIS to address the delay by revising its regulations, which is accomplished by initiating the notice and comment rule-making procedure.




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The other problem with giving USCIS a deadline for action regarding these Plaintiffs is that such an order would have predictable but unfair results: USCIS would obtain expedited treatment from the FBI for these Plaintiffs, and other applicants would be placed behind Plaintiffs in line. This "squeaky wheel" solution only allows one applicant to "pass Go" at the expense of another applicant who will be moved several spaces backward (without notice). One reason for the Court requiring that USCIS institute a notice and comment procedure in order to continue the FBI name check program as to these Plaintiffs is to increase the transparency of the process. This does not require revealing confidential information or national security
precautions. However, in doing so, USCIS should examine several issues, and some of these are mentioned in the Ombudsman Report:




1. Why is an FBI name check required for an LPR who has already undergone at least one and often two prior name checks?




2. Why is a check of the criminal background insufficient for an LPR who has already passed an FBI name check?




3. Should USCIS use risk management principles and consider the cost/benefit analysis of spending many millions of dollars for repetitive FBI name checks for all naturalization applicants, considering that the act of naturalizing an LPR itself neither increases nor decreases our national security?




4. Would Congressional hearings and increased appropriations for USCIS security procedures be appropriate?




5. How can more information about delay be provided to applicants whose name checks require more than the usual time to process?




6. Is the USCIS litigation strategy, as described in prior memoranda, appropriate, considering the costs and burdens it places on naturalization applicants and their families, the U.S. Attorney's Offices and the many district court judges who have been faced with essentially identical issues?




7. Are the delays themselves dangerous to our security?




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The Court believes that a fair, albeit interim, resolution of these cases would be advanced if the following were to occur:




1. Within thirty (30) days USCIS shall provide to Plaintiffs or their counsel accurate reason(s) as to why their FBI name check has not been completed, but if appropriate, this information may be submitted to the Court in camera.




2. The Court will enjoin USCIS from using the FBI name check program as a factor in the decision making as to these Plaintiffs unless within thirty (30) days, USCIS has initiated a notice and comment procedure, pursuant to the APA, concerning its use of the FBI name check procedure.




3. The Court will require the parties to file a report no later than March 14, 2008, setting forth their position on these requirements. USCIS shall indicate, assuming it is prepared to initiate notice and comment procedures, how quickly they can be completed including adoption of new regulations. Plaintiffs may request other additional relief they should receive pending further administrative outcomes.




4. In view of the fact that the Court can retain jurisdiction over the remedial action being required, even if some or all of the present Plaintiffs' petitions are adjudicated, the Court will lift the injunction against USCIS proceeding with the adjudication of the Plaintiffs' naturalization petitions.




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AND NOW, this 8 day of February, 2 th 008, based on the foregoing Memorandum,
it is hereby ORDERED as follows:




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6. Within thirty (30) days USCIS shall provide to Plaintiffs or their counsel accurate reason(s) as to why their FBI name check has not been completed, but if appropriate, this information may be submitted to the Court in camera.




7. USCIS is enjoined, pending further Order of Court, from using the FBI name check program as a factor in the decision making as to these Plaintiffs, unless within thirty (30) days, USCIS has initiated a notice and comment procedure, pursuant to the APA, concerning its use of the FBI name check procedure.




8. The parties shall file reports no later March 14, 2008 as to their positions on these requirements.




9. The Court will retain jurisdiction over these cases.



10. The Court will hold a hearing on March 18, 2008 at 10:00 a.m. in Courtroom 3A, at which time the Court will consider arguments and any evidence a party wishes to offer on these remedies, and any other remedies that may be appropriate.

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Comments

  1. hmm's Avatar
    "Why is an FBI name check required for an LPR who has already undergone at least one and often two prior name checks?"

    There is a simple answer to this. It take many years (>5) for a typical LPR applicant to be eligible for naturalization. This is a long wait and many things can happen in between, in particular an applicant can become a danger to national security.


  2. paskal's Avatar

    although i would beg to ask why a further 5 years is needed when the LPR process already takes a decade to complete? most people have been in the US >5 years already when they get LPR.
    it made sense when GC's ere a routine issuance, but now?
  3. Sid's Avatar
    hmm please do not underestimate the intelligence of these terrorists. They may be crazy but they do not lack analytical skills required for the success of their mission. Why would they knowingly trigger an investigation by applying for naturalization when they can continue to legally live in this country as LPRs (and continue to do whatever they do)?

    Slightly unrelated, but when Obama was asked about NY denying driving licenses to illegal immigrants, he replied that they came here to work and not to drive. Extending the analogy to terrorists - they come here to carry out terror attacks as soon as possible, not to slack off for 10+ years, become citizens and LPRs and then carry out attacks.
  4. hmm's Avatar
    People are not born terrorists. Most are converted later in life. It could just happen between namechecks. In fact, growing frustration with US immigration system could be a contributing factor, could not it? Besides, FBI surely uses the opportunity to check for spys etc. So no matter how much I hate it, a name check before naturalization makes sense. In fact, I would not be suprized if they run a fair number of name checks on US citizens for the very same reason.

  5. Sid's Avatar
    The primary problem I have with FBI name checks is it's reactive approach. The knowledge that an immigrant is a threat to national security should not depend on an external event like a green card/citizenship application. If you are letting people into this country and allowing them to stay for 5-10 years, you should run these checks irrespective of whether they apply for LPR/citizenship status, possibly on a periodic basis(the period would be decided based on your level of paranoia).

    If and when these immigrants apply for naturalization/permanent residency, you should just be able to look up some existing database, find out that they've been cleared and get on to the next step. Of course, this approach requires the USCIS/DHS policymakers to have a certain level of common sense, which, on available evidence, is an unrealistic expectation on our part.
  6. hmm's Avatar
    Sid, you have a point. I am just saying that IF the name check makes sense at all, it makes sense to do it periodically rather than once in a lifetime.

    Certainly, name check is not a recent invention. According to the above court order, name check existed since Eisenhower. So it must have been generating useful info for FBI. Maybe this is not about terrorists at all. Maybe they just use 9/11 as an excuse to collect a database on as many people as they can to make their job easier. And collecting the info from immigrants or USC applying for security clearance is way easier than collecting it from a random US citizen, because when we fill out immigration forms, we self-report loads of information.

  7. Legal and no longer waiting's Avatar
    "This is a long wait and many things can happen in between, in particular an applicant can become a danger to national security."

    That sounds like namecheck is the only possible way to ever apprehend a terrorist. It also suggests that a US citizen terrorist will never be caught because they never have to go through namechecks.

    "it makes sense to do it periodically rather than once in a lifetime."

    Since citizens may also become terrorists, do you suggest that everyone in the US are namechecked every 5 years?

    I am here with Sid - there is a way to catch terrorists, and it has nothing to do with namechecks - it is called intelligence. You find informaiton on a terrorist, then you find the terrorist, then you catch him or her, and then s/he goes to the court of justice.
  8. Another voice's Avatar
    This sounds like the new anti's flag against Immigrants or changes in Immigration policy. But I am glad that this helps immigrants in the mean time we got to take what ever good little thing happens to make the process better.
  9. Ren's Avatar
    Would some one know if I140 requires name check as well? I have been told my namecheck is pending and thus the delay with i140 at TSC? And, if it is the case, can someone do anything about the namecheck?
  10. Legal and no longer waiting's Avatar
    I-140 does not require namecheck clearance. Sometimes, the center would tie a concurrently filed I-140 to I-485, and may not look at I-140 before I-485 is ready for approval, but I think this is rather rare. Keep on bugging them.
  11. Incredulous Academic's Avatar
    My wife and I came here from Cambridge, UK, 54 years ago as legal green-card holders. For over 40 years I was a professor at a reputable state university, and for over 30 years my mathematical research was generously suppported by the US Office of Naval Research. I even flew the Atlantic in US Military Aircraft. I have had three re-entry permits approved, and two renewals of my green card. So the authorities have had SIX opportunities to discover if I were undesirable as a resident. I am now close to 82 years of age. Although my wife was promptly found OK by the FBI (how come?) when we applied for citizenship in July 2006, my application was blocked by their name check, now blocked for 20 months. Is there no commonsense at work in the system? Were I bent on evil, which, of course, I am not, then why have I been allowed to stay here for 54 years, influencing the minds of thousands of young students? And how did I slip though all those SIX earlier checks of my suitablility? Yet the FBI is, unless I am being lied to, spending a great deal of money on an extensive search for black secrets in my past! (They should have done that 54 years ago!) And, if the truth be told, causing me a great deal of anguish. As Shakepeare wrote: "Oh judgement, thou art fled to brutish beasts, and men have lost their reason"!
  12. Half as Incredulous Academic's Avatar
    Dear Incredulous Academic:

    I have been a Green Card holder less than half as long you, Professor, but that's still over a quarter century. I may have "polluted" as many young minds as you have, though. The FBI's criteria are apparent from the similarities in our cases. I too have been generously funded by a few agencies of the US government, and roamed some places that can only be described as scary, and the government has had plenty of occasion to see my name.

    When my wife and I applied, her application was approved and she was sworn in with remarkable speed (almost by return mail, it seems), while I am stuck in "namecheck" over two years after the interview. About a year and a half ago, a very nice young FBI agent visited me for an outwardly friendly chat about foreign graduate students etc., and I quickly realized that she had little interest in them, it was in me that her agency was interested. They seemed to be completely amazed into paralysis by the fact that we "aliens" have been doing work for their government. As she left she said: "You know, in the cases of people in the scientific community, we have to make sure..."

    There are many comments that come to mind, Professor, along the lines you (under) stated, but few of them are worth daring to write here. What comes to mind repeatedly is the scene from the movie "Men In Black" where the hero asks a smartly-turned-out squad of (FBI) agents: "Hey dudes, why were YOU picked for this mission?"

    And the Leader answers, snapping to attention: "BECAUSE WE ARE THE BEST OF THE BEST OF THE BEST, SIRRR!" To which our hero responds: " So you ain't got no clue neither, huh?"

    Describes the Namecheck process beautifully. The Clueless going about their cluelessness, mightily impressed with the importance of the clueless job they think they are doing.

    Good luck, Professor. Keep up your sense of humor. It's the only resort in dealing with this immensely senseless situation.
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