CHERTOFF: APPEALING "NO MATCH" RULE AFTER ALL

There has been an interesting development in the DHS "no match" saga involving the fight by DHS to implement a rule creating a "safe harbor" for employers who terminate employees who are the subject of letters from the Social Security Administration indicating employees whose social security numbers and names do not match in the SSA database. At the heart of the issue is whether an employer has constructive knowledge that an employee is unlawfully employed when they get one of these letters. If that is the case, then an employer could be liable for significant penalties. DHS has been reticent to draw this finding up until now, but under a rule issued last August that has been put on hold by a District Court in California, employers would be targeted and the one safe way to avoid targeting is if an employer notifies the employee of the letter, gives an employee 90 days to correct the problem and then terminates the employee if the problem is left uncorrected.

The rule has been attacked on two grounds. First, opponents of the rule are arguing that DHS did not follow the Administrative Procedures Act in terms of the way the rule was proposed and implemented. Second, there is concern that US citizens will be falsely identified as being a "no match." Opponents point to the fact that the SSA database is rife with errors and the SSA has a poor record when it comes to resolving these problems within 90 days.

Last month, the ACLU announced that DHS was abandoning the rule and would re-issue a new rule in December that would supposedly address the judge's concerns.

Secretary Chertoff announced today that DHS is going that route but that it also was planning on requesting the 9th Circuit Court of Appeals to reverse Judge Breyer's order suspending implementation of the "no match" rule. Presumably, the goal is to deal with the possibility that Judge Breyer will enjoin DHS from implementing the next version of the rule and then having to deal with the delay of waiting on an appeal of that future decision.

[UPDATE: Here are DHS' letter to the judge and the notice of appeal .

Comments

[Greg Siskind]

AV- It looks like DHS is working on a dual track of trying to develop a new rule while also seeing if they can win on the first case. Essentially, they're trying every strategy available to get the rule in place as quickly as possible.

[grepen]

Greg, could you post this on your blog. and also ask people to contact ACLU because this lawsuit does not include employment based greencard namechecks.

http://www.mercurynews.com/breakingnews/ci_7632838?nclick_check=1

ACLU suing federal government over FBI 'name check' backlog

LOS ANGELES—The American Civil Liberties Union sued the federal government Tuesday, claiming the FBI is taking too long finishing checks on immigrants applying for U.S. citizenship.

The U.S. Citizenship and Immigration Service has 120 days to grant citizenship after the applicant has met all requirements, been interviewed and passed a basic citizenship test. Until last year, it was during this period the USCIS would send the applicant's name to the FBI for a "name check." The FBI, which contracts to do such checks for 70 agencies, said it goes through about 70,000 names a week. About half those are from the USCIS, said Paul Bresson, an FBI spokesman in Washington.

"We run the name to see if a person has been the subject of or connected to a criminal or terrorist organization," Bresson said.
"If there's no information, and usually there isn't," such a check can take as little as an hour, Bresson said.
But, if there's a "hit" on a name, he said, "we have to go to that field office and pull the record to see if the individual is the same one."

An ombudsman for the USCIS says the backlog is worsening, with 329,160 name checks pending as of May 2007—up more than 98,000 over the previous year.

Although the USCIS says 90 percent of its name checks are resolved within six months, the ombudsman drew a different conclusion. In a June 2007 report, the ombudsman found that nearly a third of the checks had been pending for
more than one year. Such is the case for Abbas Amirichimeh, a microchip designer living in Irvine who has been trying to become a U.S. citizen for more than four years. Amirichimeh is one of four immigrants living in Southern California on whose behalf the ACLU filed the suit Tuesday in U.S. District Court. It seeks class-action status on behalf of the four and "all other persons similarly situated." Amirichimeh came to the U.S. from Iran in 1994, submitted his application for citizenship in May 2003, and had his interview and passed his examination the next summer. More than three years later, his case still isn't resolved because his name check has not been completed. "Is it the FBI or USCIS that's not doing their job?" Amirichimeh said. "I can't understand it. I'm in limbo." Amirichimeh said he was unable to visit Iran after the deaths of his father and other family members because he feared he would not be allowed back in the U.S. He at least had his citizenship interview and exam. In April 2006, the CIS distributed a memo saying "cases will not be scheduled for interview" until the agency receives the results of the fingerprint check and the FBI name check.

As a result, many applicants no longer have recourse for delays in getting name check results because the clock doesn't start ticking on the 120-day time limit until after those results are in. Chris Bentley, a spokesman for the USCIS, said the policy switch came "out of an abundance of caution." Meanwhile, Jim Moorhead waits for his citizenship interview. A North Hollywood resident who works in the scrap metal business, Moorhead is another of the plaintiffs in the ACLU suit. He came to live in the U.S. in 1976 from the United Kingdom. He said Tuesday that he applied for citizenship in January 2006 and the FBI received his name check request the following month.

Moorhead still hasn't had his citizenship interview and test, nor have the results come back on his name check. Despite countless inquiries to numerous government agencies, he is still waiting to find out why. "Everything they tell you is wrong," Moorhead said. "At best, wrong. At worst, lies."

Other suits have been filed to hold the government to the 120-day time limit to rule on citizenship cases. But attorneys involved with the ACLU suit say this is the first to include people such as Moorhead, for whom that window does not yet apply.
"We're hopeful that eventually we'll get a court ruling that the name check system isn't working and we'll get it fixed," said the ACLU's Ranjana Natarajan. The suit, Bavi vs. Mukasey, names as defendants Attorney General Michael Mukasey, Homeland Security secretary Michael Chertoff, and officials from the FBI and the CIS.

[Another voice]

Greg,

So does this mean that he will appeal and also come up with a new version of the rule in the future?

Does this mean that DHS has to show the court of appeals that they have corrected the problem as to the false positives?

If due to the false positives you fail to proof constructive knowledge how would you apply it correctly?

[USC]

LOL!! The Ninth Court of Appeals is more likely to agree with Judge Breyer than with the DHS. Greg, if this gets to SCOTUS is Justice Breyer likely to recuse himself on account of Judge Breyer being his brother?