Immigrants won a major victory this month when a federal judge ruled it was unlawful for the U.S. Citizenship and Immigration Services (USCIS) to require FBI name checks before deciding a naturalization case. While the USCIS continues to fight the decision, lawyers for the plaintiffs (the permanent residents suing the government) are confident of victory. Let’s hope they are right.
Readers often write asking about what to do about long USCIS processing delays. While sometimes intervention by a U.S. Representative or Senator can help, until now the best way to get the agency to act was to file a federal mandamus action - an action asking the federal court to force an agency to act. At one time, merely filing a mandamus action would result in the USCIS deciding a case. Since the USCIS began fighting these cases, plaintiffs have been successful over 80 percent of the time.
Filing individual mandamus actions is a costly and cumbersome approach for the more than 300,000 naturalization applicants whose cases are being held up pending FBI name checks. More than 100,000 of these applicants have been waiting for the FBI clearances for more than one year. Clever lawyers came up with a way to challenge the whole name-check process, arguing that requiring the FBI name check was itself unlawful.
The U.S. District Court for the Eastern District of Pennsylvania agreed. In Mocanu, et al. v. Mueller, et al., the Court found that “USCIS’ use of the FBI name check program has never been authorized by statute or regulation.” The court added that continuing to require the checks is “improper because of the unreasonable delays it has caused in the adjudication of Plaintiffs’ applications for naturalization.”
The plaintiffs’ stories in Mocanu, et al. v. Mueller, et al., are similar to those of many of my readers. The lead plaintiff, A. Victor Mocanu, a native of Romania, applied for naturalization in March 2004. The USCIS fingerprinted Mocanu and was scheduled to interview him in February 2005. In January 2005, USCIS notified Mocanu that his interview had been cancelled “due to unforeseen circumstances.” More than two years later, his application remained pending.
“Nothing about these applicants is special,” according to James Orlow, lawyer for Mocanu, “except that they might become voters.” While the decision in this case will apply only to the named plaintiffs, Orlow believes that when victory comes in this case, the decision will benefit applicants across the nation.
The impact of FBI name check delays can be profound. A permanent resident cannot vote, cannot hold most federal jobs, cannot be a police officer or a firefighter and in some cases, cannot get needed public assistance. Unlike a U.S. citizen, a permanent resident cannot petition for his or her parents or married children. Travel to some countries without a U.S. passport can be difficult. Did I mention that permanent residents could not vote?
With recent fee increases, a more difficult naturalization exam coming October 1 and unusually long delays in processing naturalization cases, one need not be a conspiracy nut or cynic to be suspicious about the FBI name check delays. It is time for the government to do the right thing and grant citizenship to those who deserve it. It is time to end the delays in the naturalization processing.
Allan Wernick is an attorney and director of the City University of New York Citizenship and Immigration Project. He is the author of “U.S. Immigration and Citizenship - Your Complete Guide, Revised 4th Edition.” Send questions and comments to Allan Wernick, Daily News, 450 West 33rd Street, New York, N.Y., 10001. Professor Wernick’s web site: www.allanwernick.com.
Allan Wernick’s Immigration column is reprinted from Tuesday, February 26 editions of the New York Daily News.
