The last TRAC factor directs courts to examine the motives behind the agency’s delay. See TRAC, 750 F.2d at 80 (“[T]he court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.”) (internal quotations and citation omitted). Even though Plaintiff is not required to assert, that any propriety lurked behind USCIS’ lassitude in adjudicating her AOS application for this Honorable Court to find the agency delay unreasonable (see Yu v. Brown, 36 F. Supp. 2d 922, 933 (D.N.M. 1999)), there are some troubling facts indicating that the USCIS, being fully aware of the delays associated with FBI name checks, did nothing to resolve it for several years.
First, the USCIS created the problem by expanding the scope of FBI name check without Congressional authorization, without implementing corresponding regulations in accordance with APA. See Mocanu v Mueller:
“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 …” 2008 U.S. Dist. LEXIS 10122 at *32-33 (E.D. Pa, Feb 8, 2008).
Second, the USCIS and FBI did not provide adequate resources for processing name checks. See Aslam v. Mukasey, 531 F.Supp.2d 736, U.S. Dist. LEXIS 5616 at *5 (E.D.Va. Jan 25, 2008): “The government concedes that the agency within the FBI responsible for name checks, the National Name Check Program Section ("NNCPS"), is understaffed. Approximately 3.3 million name checks are requested each year, resulting in 330,000 checks that proceed past the second stage. As of 2006, NNCPS only employed 103 personnel, 59 of which are dedicated to performing name checks for CIS. To meet its internal goals, the FBI has estimated that it needs 180 employees to process the CIS requests alone.”
Being aware of the problem the Defendants instead of resolving the problem adopted the policy of further delays by litigation. See Mocanu v Mueller, 2008 WL 154606 at * 4-5 (E.D. Pa. Jan 11, 2008):
“I have reached a tentative conclusion that Defendant USCIS, overwhelmed by these applications, has adopted a strategy of favoring delay by litigation, instead of developing an orderly and transparent administrative resolution… The entire pattern of the government conduct in these cases, including the way USCIS is handling the matters, and the Justice Department is briefing them, allows the unfortunate inference that judges and the judicial process are being used as tools to further delay, and obfuscation of the real reasons for delay on these petitions. From the above facts, specifically the failure to request class action treatment, MDL consolidation, single district consolidation, interlocutory appeal of the subject matter jurisdiction issue, and the surprising lack of citations, I tentatively conclude that the Defendants’ strategy is to use litigation as part of the delaying process.”
Finally, the Memo by Michael Aytes, Associate Director, Domestic Operations, United States Citizenship and Immigration Services from February 4, 2008 which instructed all USCIS employees to adjudicate adjustment applications when the FBI name check has been pending for 180 days or more without waiting for the results of the FBI name check confirms that the FBI name check requirements is not contemplated by federal laws and regulations. The Memo says, in particular:
“USCIS is issuing revised guidance in response to recommendations of the DHS office of Inspector General (OIG-06-06) regarding the need to align the agency’s background and security check policies with those of U.S. Immigration and Customs Enforcement (ICE)… In the context of removal proceedings, ICE has determined that FBI fingerprint check and Interagency Border Inspection Services (IBIS) checks are the required security checks for purposes of applicable regulations”.
Given the fact, that adjustment of status can be granted in removal proceedings (see 8 C.F.R. § 240.1(a), 8 U.S.C. § 1255), it's clear that FBI name check is not required by federal laws or regulations to adjudicate AOS application. Plaintiff would also like to raise a question: “Why the USCIS waited 3 years to follow recommendation issued in year 2005?”. Accordingly, the final TRAC factor also indicates that the delay in adjudication of Plaintiff's application is unreasonable.
