Ruling may end FBI name checks
Tuesday, February 26th 2008, 4:00 AM

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% 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.

Delays costly to applicants

The impact of FBI name check delays can be profound. A permanent resident can't vote, can't hold most federal jobs, can't be a police officer or a firefighter and in some cases, can't get needed public assistance. Unlike a U.S. citizen, a permanent resident can't 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 can't vote?

And then, of course, there is the cost, frustration and apprehension that accompanies victims of these delays. As the federal judge in Mocanu put it, "Plaintiffs have . . . incurred substantial expenses, and lived with the resulting uncertainty in their personal and professional lives, and immeasurable impact on their families."

With recent fee increases, a more difficult naturalization exam coming Oct. 1 and unusually long delays in processing naturalization cases, one needn't be a conspiracy nut or cynic to be suspicious about the FBI name check delays. It's time for the government to do the right thing and grant citizenship to those who deserve it. It's time to end the delays in the naturalization processing.

that sounds so good cause i think about USCIS to require FBI name checks before deciding a naturalization case. its kinda illegal
and i heard about there are about 7.7 million in the USA waiting for the citizenship cause of name checking by FBI
and they told them why you want the citizenship if you can go out and back to the USA
but i think they can not vote , they can not work as an officer......
and yeah i guess as i told you your senator or your congressman can help you somehow
good luck and have a blessed day

Sounds good for those in the citizenship process and those who will encounter it. But I would love to see some help for us at the waiting for the visa security checks level.

You know I get it...they have to do checks to make sure the person they are granting permission in to the USA is not some terrorist that will place harm or threaten USA National Security.

But they should be honest with those who wait....One they should say you will receive the visa when security checks are complete and this process can take anywhere from 2 weeks to over a year......Two they should be willing to give us more details when we inquire about our case instead of those generic "your case is in administrative processing" responses. I was told they could not dicuss administrative processing results with nonconsular staff. I was thinking WTF it is mine and my fiancee's petition/application and you cannot discuss it with us?

I personally think they should have to tell us exactly which security check it is in at the time....and how long the one it is in takes to complete (1 day to 1 month) and based on the outcome of that check what the next step will be. I understand they cannot email updates to every applicant at every change....but they coiuls at leas give you a real answer when you email and ask for an update.

Anyway, I receive an alert from DHL everyday but the pick up date never changes.....it still shows the date of the interview and I was told this means it is inside the embassy being scanned as it moves within from department to department. So maybe this means it is moving through these security checks and soon an end will be in sight.

I pray for all of those waiting...no matter what stage you are in. I pray that we will all be reunited with our loved ones soon.

Cheryl

I don't see anything wrong with an FBI check as long as there is reason behind it. To hold up an app just because a name matches someone's who applied for a job with the FBI seems silly to me.