nyc_naturalizer
Registered Users (C)
My apologies if this has already been posted, I saw it in another forum. Should be required reading for anyone worried about namecheck issues:
http://www.bibdaily.com/pdfs/Mocanu 2-8-08 LEXIS.pdf
Basically, the ruling (by US District Court for Eastern PA) rules in favor of the plaintiffs against USCIS namecheck requirements for naturalization, particularly given unreasonable delays in the procedure and the fact that other security checks are in place (fingerprinting and namecheck as LPR). The court specifies that its recommendations lie outside the revised policy on namecheck that was circulated earlier this month, since that did not apply to N-400.
I have no legal background so I don't really know what the impact of this will ultimately be. Anybody care to comment on the ruling?
It's a long document. I quote some of the more interesting passages:
Summary
"Plaintiffs in all these cases sue to require the United
States Citizenship and Immigration Services ("USCIS")
to act on their pending, applications for naturalization.
This is the situation in many other cases pending before
federal judges in this and other districts throughout the
United States. Plaintiffs allege that they are lawful
permanent residents ("LPRs"), whose applications have
been pending without any action, whether an approval or
rejection, for lengthy periods, ranging from 30 to 47
months. They contend that this inaction has been caused
by unreasonable delays in the completion of the Federal
Bureau of Investigation ("FBI") name check program.
For the reasons set forth below, the Court concludes
that USCIS' use of the FBI name check program has
never been authorized by statute or regulation, and its
continued application to Plaintiffs is improper because of
the unreasonable delays it has caused in the adjudication
of Plaintiffs' applications for naturalization. The Court
will give USCIS an opportunity to promptly initiate
notice and comment procedures leading to revised
regulations."
Applying Administrative Law Principles to the
Facts of Record
"The Court concludes that USCIS has required FBI
name checks under the mistaken impression that it has
authority, based on its own regulations, to require such
checks for LPRs who seek to become naturalized
citizens. 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. The fingerprint check will show
whether an LPR who is applying for naturalization has
had any contact with the criminal justice system that
would warrant denial of the petition."
Relief to Plaintiffs
"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."
"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."
"The Court feels strongly that these Plaintiffs deserve
relief that will promptly lead to adjudication of their
naturalization petitions. As many other district court
judges have concluded, it is simply unacceptable to
require an LPR to wait several years for action on a
naturalization petition. Plaintiffs have demonstrated that
there must be some improvement in the underlying
USCIS regulatory framework, so that the name check
program will be appropriately authorized, accurately
described, fairly administered, and concluded without
reasonable delay."
"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?
Of great concern is that there is no way of knowing,
from the information on the record, whether the name
check process, as applied to these Plaintiffs, has been
held up because of some truly sensitive national security
concern, or because of some bureaucratic delay in
securing the appropriate files, or because overloaded FBI
personnel have not had the opportunity to address the
pertinent name check request."
http://www.bibdaily.com/pdfs/Mocanu 2-8-08 LEXIS.pdf
Basically, the ruling (by US District Court for Eastern PA) rules in favor of the plaintiffs against USCIS namecheck requirements for naturalization, particularly given unreasonable delays in the procedure and the fact that other security checks are in place (fingerprinting and namecheck as LPR). The court specifies that its recommendations lie outside the revised policy on namecheck that was circulated earlier this month, since that did not apply to N-400.
I have no legal background so I don't really know what the impact of this will ultimately be. Anybody care to comment on the ruling?
It's a long document. I quote some of the more interesting passages:
Summary
"Plaintiffs in all these cases sue to require the United
States Citizenship and Immigration Services ("USCIS")
to act on their pending, applications for naturalization.
This is the situation in many other cases pending before
federal judges in this and other districts throughout the
United States. Plaintiffs allege that they are lawful
permanent residents ("LPRs"), whose applications have
been pending without any action, whether an approval or
rejection, for lengthy periods, ranging from 30 to 47
months. They contend that this inaction has been caused
by unreasonable delays in the completion of the Federal
Bureau of Investigation ("FBI") name check program.
For the reasons set forth below, the Court concludes
that USCIS' use of the FBI name check program has
never been authorized by statute or regulation, and its
continued application to Plaintiffs is improper because of
the unreasonable delays it has caused in the adjudication
of Plaintiffs' applications for naturalization. The Court
will give USCIS an opportunity to promptly initiate
notice and comment procedures leading to revised
regulations."
Applying Administrative Law Principles to the
Facts of Record
"The Court concludes that USCIS has required FBI
name checks under the mistaken impression that it has
authority, based on its own regulations, to require such
checks for LPRs who seek to become naturalized
citizens. 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. The fingerprint check will show
whether an LPR who is applying for naturalization has
had any contact with the criminal justice system that
would warrant denial of the petition."
Relief to Plaintiffs
"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."
"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."
"The Court feels strongly that these Plaintiffs deserve
relief that will promptly lead to adjudication of their
naturalization petitions. As many other district court
judges have concluded, it is simply unacceptable to
require an LPR to wait several years for action on a
naturalization petition. Plaintiffs have demonstrated that
there must be some improvement in the underlying
USCIS regulatory framework, so that the name check
program will be appropriately authorized, accurately
described, fairly administered, and concluded without
reasonable delay."
"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?
Of great concern is that there is no way of knowing,
from the information on the record, whether the name
check process, as applied to these Plaintiffs, has been
held up because of some truly sensitive national security
concern, or because of some bureaucratic delay in
securing the appropriate files, or because overloaded FBI
personnel have not had the opportunity to address the
pertinent name check request."
