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

By Greg Siskind

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. *****

Full post as published by Greg Siskind's Blog on February 14, 2008 (boomark / email).