On May 04 2015 by William A. Stock

Immigrants Challenge Lengthy Processing Delays in Court with Mixed Results

Last year, to much fanfare, United States Citizenship and Immigration Services (“USCIS”) announced that it had eliminated a two million case backlog of pending applications, in accordance with a promise made by President Bush in 2001.

Yet, as many immigration insiders noticed, the total number of applications pending with USCIS more than six months (the official definition of the “backlog”) was still more that a million applications. Some of these applications were filed two, three or more years ago, and remain unadjudicated. Yet, USCIS no longer considers them part of its “backlog.”

Part of the success of the USCIS backlog elimination project was a feat of redefinition: USCIS no longer considers a case part of its “backlog” if USCIS processing is awaiting input from another government agency. A prime example of such input is the security clearance immigrants seeking to complete the final step of the permanent residence process (called “adjustment of status”) and permanent residents seeking to become U.S. citizens, in particular, require from the Federal Bureau of Investigation to ensure that they do not have an undisclosed criminal record and are not a security risk. The FBI conducts two checks: a fingerprint-based check for criminal arrest records, and a name-based check for information in the FBI’s various databases that may affect eligibility for an immigration benefit.

Because name-based checks are currently made against a very large database of anyone who has ever had a file opened by the FBI (including witnesses and victims as well as subjects of investigation), a significant percentage of immigration applicants create a “hit” (a potential match against a name in the FBI database). The number of “hits” is increased for immigrants coming from countries using other alphabets (such as Russia or China), as several potential English spellings of their name will be checked. Nearly all of these “hits” are false positives – the FBI record is for a different person or for a reason that does not affect immigration eligibility – but reaching that conclusion often takes a manual file check by an FBI analyst, and the office that processes those namechecks (along with other FBI security clearances) is severely backlogged itself.

An immigrant finding him- or herself in this situation – with an application pending at USCIS for years because of an FBI security clearance that will, in every reported case so far, have no derogatory information in it – has few options. The immigrant can simply continue to wait, with the corresponding difficulties in travel, inability to sponsor relatives, and inability to participate fully in this country, which may or may not eventually result in the benefit being granted. The immigrant can complain to a U.S. Senator or Representative, who will investigate the delay and report back that the case is pending for security clearances and that there is nothing to do but wait. When tired of waiting, the immigrant can take the government to court on the basis of unreasonably delayed adjudication.

The first wave of these cases to hit the federal courts about a year ago were nearly all naturalization cases brought under §336(b) of the Immigration and Nationality Act (8 USC §1447(b)). This provision is based on the long tradition of federal court responsibility for naturalization of new citizens; until 1990, USCIS had no power to naturalize a citizen itself, and simply presented its recommendation on the application to a federal court. In granting it the power to do so, Congress provided several judicial review provisions to allow immigrants delayed or denied naturalization by USCIS to have their applications heard anew before a federal judge. INA §336(b) allows a federal judge to hear the application for naturalization in those cases where USCIS conducted a naturalization interview, but did not make a decision within 120 days of the interview. These cases were difficult for the government to defend, as the statute clearly provided for court action, and it quickly became known in many immigrant communities that merely filing a mandamus action resulted in a grant of the long-delayed benefit before any court hearings, as the Assistant US Attorneys assigned to the cases sought to resolve them by having the security clearances expedited by the FBI.

In response, USCIS simply stopped scheduling naturalization interviews until the FBI namecheck is complete, so that the 120-day clock of INA 336(b) never starts. As a result, while most applicants for citizenship can expect an interview within six months of filing the application, a significant number (by the FBI’s estimates, about 10% of all applicants) will not be scheduled for interview on their application for years. The second wave of litigation challenges the failure to conduct checks an schedule naturalization interviews in a timely manner. Such lawsuits normally take the form of actions for declaratory and injunctive relief under the mandamus statute (28 USC §1361), with jurisdiction founded on the Administrative Procedures Act’s provision allowing suit to challenge agency action unreasonably withheld or delayed (5 USC §706(1)). Since January, the government has taken a more aggressive defensive position, no longer expediting name checks merely because litigation is pending, and filing motions to dismiss in lieu of an answer in nearly every case. In the naturalization context, most courts have denied these motions and allowed the case to proceed on its merits. The results have been mixed, with some cases resolved quickly by consent and others litigated fully by the government; even when judges grant relief, however, it may not specify a specific time within which the government has to act.

The third wave of litigation challenging adjudication delays is now making its way through the courts, in which immigrants seeking to become permanent residents are challenging the same namecheck delays that hold up naturalization applicants. The problems for adjustment of status applicants are more acute than those of naturalization applicants: they are required to annually renew their work authorization and travel documents, they have no permanent status in the United States, and they do not begin counting the required five years of residence toward U.S. citizenship until their applications are granted. These mandamus actions have met with much less success, however, due to statutory changes limiting the ability of courts to review discretionary decisions of USCIS. While immigrants are claiming that mandamus is appropriate because USCIS does not have any discretion whether or not to decide the case, and the only relief sought is a decision (whether a grant or a denial), the government has defended those suits by claiming that the courts’ inability to review a discretionary decision also encompasses USCIS’s decisions about how and when to make such a discretionary decision. This argument is successful more often in the adjustment of status context than it is in the naturalization context, where courts continue to have a strong role in reviewing agency decisions.

While properly conducted security clearances are in everyone’s interests, USCIS and the FBI must be given the resources to conduct them in a timely manner. Our most successful argument to federal judges has been that it is of little use to allow the fraction of one percent (according to the FBI) of potential immigrants with criminal or security issues to remain in the United States for two or more years while the namecheck process proceeds, while at the same time holding up the lives of hundreds of thousands of honest immigrants who want nothing more than to take their oath of allegiance and become citizens.