The CFR has the power of federal law, the agencies can only create their own policies by interpreting the law. Moreover, APA sets a procedure how those interpretations (or rules) are to be implemented. An agency cannot just create a rule without following APA, including public comments requirement.
The word "regulations" in 1255 does mean CFR. 8 CFR specifically mentions "full criminal background check" twice:
8 CFR 240.67(a), where it apparently means "fingerprint check" when we look at 8 CFR 240.67(a)(3):
"Confirmation from the FBI 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."
and
8 CFR 335.2(b), but we have the same situation here as well, 8 CFR 335.2(b) is a copy of 8 CFR 240.67(a)(3).
8 C.F.R. 103(2)(e) refers to fingerprinting only as well.
So here are my points (let's forget about how a judge may look at them, we are talking about law interpretation, not about somebody's feelings):
1) employment-based/family-based AOS does not require the SAME full criminal background checks as asylum or naturalization;
2) The law does not specify name-based criminal background check as mandatory requirement for any immigration benefit application. Name check is distinctly different from fingerprinting. Also, name check is requested before fingerprinting quite often, so they cannot say it is the same process (i.e. part of the fingerprint background check).
APA provides for judicial review of agency action, and it requires the reviewing court to remand a case to the agency or to set aside agency action when it finds that the agency "has erroneously interpreted a provision of law." Nothing in the APA requires the court to defer to the agency's interpretation and nothing limits the reviewing court's authority to those cases in which the court determines that the agency's interpretation is "clearly" erroneous.
That's my story and I'm sticking with it.
You may be on to something. Even if it is true as SLIS and paz have pointed out, that agencies can have internal regulations that are can be used under the vague provison of the law, these regulations have to be codified even internally within CIS process. Look at posting by brb2:
http://boards.immigration.com/showthread.php?p=1570494#post1570494
It shows that name check regulations have not even been formally codified as regulations within CIS and they are only now trying to do this. This may support your assertion that there is no basis for these checks under current legal and regulatory framework.
-------------------------------------------------------------------------
1306. WITHHOLDING OF ADJUDICATION
Priority: Other Significant
Legal Authority: 8 USC 552; 8 USC 552a; 8 USC 1101; 8 USC 1103; 8 USC
1304; 8 USC 1356; 8 USC 1421; 8 USC 1443; 8 USC 1447; . . .
CFR Citation: 8 CFR 103; 8 CFR 208; 8 CFR 310; 8 CFR 335; 8 CFR 336
Legal Deadline: None
Abstract: This interim rule codifies the Secretary of Homeland
Security's current discretionary authority, as delegated to the
Department of Homeland Security (DHS) directors, to manage the caseload
of pending requests for immigration benefits in districts or regions
over which the directors have jurisdiction. A component of this case
management authority is the ability to withhold adjudication of any
pending application or petition, particularly when an investigation is
ongoing and background and security checks are still pending
completion. This interim rule expands the circumstances under which DHS
may withhold adjudication or toll any applicable regulatory deadline
for completion of adjudication of an application or petition. This
interim rule also modifies the regulations governing processing of
naturalization applications to define when a naturalization examination
will be deemed ``conducted'' for purposes of seeking administrative or
judicial review under section 336 of the Immigration and Nationality
Act (Act). The interim rule also requires that background and security
checks be completed to the satisfaction of the Secretary before an
alien may be found to have ``good moral character'' for naturalization
and before the alien may be naturalized in accordance with title III of
the Act. These changes will aid DHS in its efforts to improve case
adjudication overall while simultaneously ensuring that no immigration
or naturalization benefit is granted until any pending investigation or
required background and security check is completed to the satisfaction
of the Secretary. These changes also will ensure that no immigration
benefit is provided to an ineligible individual or person who may pose
a threat to public safety or national security.
Timetable:
__________________________________________________ ______________________
Action Date FR Cite
__________________________________________________ ______________________
Interim Final Rule 01/00/07
Interim Final Rule Comment
Period End 03/00/07
Regulatory Flexibility Analysis Required: No
Small Entities Affected: No
Government Levels Affected: None
Additional Information: CIS No. 2234-02
Transferred from RIN 1115-AG86
Agency Contact: Alice J. Smith, Chief Counsel, Department of Homeland
Security, U.S. Citizenship and Immigration Services, 20 Massachusetts
Avenue NW., Washington, DC 20536
Phone: 202 272-1418
RIN: 1615-AA86
So, we do have agreement here.