what is the definition of the full criminal background check?
Reading all kind of stuff about these N-400 applications pending security background checks (like mine), I don't understand couple of things. I would be interested to know your opinions.
In a November 26, 1997 appropriations act for the Department of Justice and other federal departments and agencies, Congress mandated that "during fiscal year 1998 and each fiscal year thereafter, none of the funds appropriated or otherwise made available to the Immigration and Naturalization Service shall be used to complete adjudication of an application for naturalization unless the INS has received confirmation from the FBI that a full criminal background check has been completed". Pub. L. No. 105-199, Title 1, 111 Stat. 2440. 2448-49 (1997).
Now let's see what are the Federal Regulations: 8 C.F.R. Sec. 335.2 Examination of applicant. Paragraph (b) states:
b) Completion of criminal background checks before examination. The Service will notify applicants for naturalization to appear before a Service officer for initial examination on the naturalization application only after the Service has received a definitive response from the Federal Bureau of Investigation that a full criminal background check of an applicant has been completed. A definitive response that a full criminal background check on an applicant has been completed includes:
(1) Confirmation from the Federal Bureau of Investigation that an applicant does not have an administrative or a criminal record;
(2) Confirmation from the Federal Bureau of Investigation that an applicant has an administrative or a criminal record; or
(3) Confirmation from the Federal Bureau of Investigation that two properly prepared fingerprint cards (Form FD-258) have been determined unclassifiable for the purpose of conducting a criminal background check and have been rejected.
(Paragraph (b) added effective 3/29/98; 63 FR 12979)
This is from the USCIS web page: from the Immigration law repository, see at
http://www.uscis.gov/lpBin/lpext.dl...b-32058?f=templates&fn=document-frame.htm&2.0
If I go now and read what is at 69 FR 12979, I found nothing about name checks.
Now let's see what Michael Cannon, the chief of the National Name Check Program in FBI said in a declaration given in one of the 1447(b) lawsuits:
"(17) In this period of heightened national security concerns, a review of the background check procedures employed by USCIS was conducted in November 2002. It was determined that in order to better protect the people and the interests of the United States, a more detailed, in-depth clearance procedure was required. One of these procedures involved the name check clearance performed by the FBI. At that time only those "main" files that could be positively identified with an individual were considered responsive. The risk of missing a match to possible derogatory record(s) was too great and therefore, the search criteria was changed to access references. From a process standpoint, this meant many more files were required to be revieved for each individual."
(These main files are checked when we are requesting the FOIPA, and in most of the cases this comes back with "no record".)
In my interpretation, there is nothing in the statue, codified law or federal regulation, which includes the FBI name check in the definition of the full criminal background check. And, again, in my opinion, this is the explanation, why people were interviewed before the name check results came back from FBI. After 9/11/2001 somebody in DHS or USCIS decided in November 2002 that they should add the FBI name check to the full criminal background check requested from FBI about the N-400 and I-485 applicants. The problem is that they simply 'forgot' to go to Congress and ask them to ammend the law and now we are in this mess, with these name checks pending forever, without any legal basis, just an internal decision made by somebody in a government agency.
Please, please, tell somebody that I am wrong and point me to the correct legal basis of the name checks. I can't believe that this is true and NOBODY, neither the suffering applicants, nor the immigration lawyers or District Judges discovered till now the lack of legal basis....
Disclaimer: I am not advocating that the name check is not necessary if people who know better than me (like the responsible persons in DHS or USCIS) how useful is this name check to catch the bad guys. So be it. But in this case this should be codified, i.e., included in the law, and FBI should fix the process to not sit forever in this "black hole" called name check.
