Imagine waiting patiently for five years to apply for U.S. citizenship since obtaining lawful permanent residence (also called "green card status"). You submit your application, study English and U.S. history and civics, and go to U.S. Citizenship and Immigration Services (CIS) for your naturalization interview. You show the CIS officer that you know enough English, demonstrate knowledge of U.S. history and civics and prove that you meet the "good moral character" requirement to naturalize (you don't have a single arrest or even a traffic ticket in your entire life).
However, the officer tells you that, while you appear to satisfy all the requirements for U.S. citizenship, you cannot be naturalized because of a pending "security check" coordinated by the FBI. A year later, this check is not complete and you still are not a U.S. citizen.
Hundreds of Western Washington immigrants face this situation, waiting weeks, months and even years after their interviews for U.S. citizenship. Many are low-income, elderly refugees who will lose Supplemental Security Income if they don't become citizens. Others await federal government jobs requiring citizenship. Some hope to sponsor a family member, but need citizenship to do so.
The source of the snafu is a relatively recent CIS dictate that has resulted in a technological tangle. According to a letter issued by CIS to applicants facing security check delays, "On November 13, 2002, the Adjudication Branch of the legacy Immigration and Naturalization Service (INS), now CIS, was mandated to ensure that background security checks were initiated and completed prior to any decision or adjudication of a benefit."
These checks, also referred to as "name checks," involve research into various electronic databases containing names of persons ostensibly with criminal backgrounds or who have been deemed a security threat. Attorneys in the private bar don't know exactly how these checks are conducted. Apparently CIS transmits names of applicants for certain immigration benefits to the FBI. Once the checks clear, the FBI informs CIS and adjudication of the application proceeds.
Applicants for many immigration benefits, including naturalization, also are subject to a check by the Interagency Border Inspection System (a database managed by the Department of Homeland Security, which oversees CIS), a name check by the FBI of its investigative records and an FBI fingerprint check, which produces an applicant's arrest record. In addition, applicants must answer an extensive battery of questions about their immigration and criminal history and their membership in groups and associations, among other subjects.
While applicants face frustration over long waits, advocates face confusion about what more to do for clients who have clean records. Current law allows a naturalization applicant to request a hearing on his or her naturalization application in U.S. District Court if CIS has not made a decision within 120 days of the applicant's initial interview. Last year, attorneys from the Northwest Immigrant Rights Project, the Northwest Justice Project and the law firm of Gibbs Houston Pauw requested that CIS naturalize nine individuals under this law or they would file suit. Eight of the nine potential plaintiffs are now citizens.
NWIRP currently represents additional individuals facing name-check delays who may request a hearing in federal court if necessary. Other attorneys have brought similar litigation in Seattle. However, legislation pending in Congress would limit or eliminate the ability to request federal court hearings on naturalization applications.
One of the potential plaintiffs represented by NWIRP is "Ali" (not his real name), a refugee from Iraq with Kurdish and Arabic language skills who has performed simulation work for the U.S. military to assist in preparing troops for deployment in Iraq. He was interviewed by CIS on May 4, 2004, and told that his application was approvable but for the pending background check. Fortunately, he became a citizen last fall.
He stated, "All of my family were citizens except me. But I am a [U.S.] citizen now and that is very good." (Ali's wife's naturalization application was approved the day of her interview and their children automatically became citizens by operation of law when his wife was naturalized.) Ali plans to continue serving the U.S. military.
This highlights the predicament of other individuals who have obtained security clearances from the U.S. government for work in certain jobs but have background checks pending with CIS and the FBI.
These security checks apply not only to applicants for naturalization, but also to those who apply for lawful permanent residence in the United States. These applicants may be able to expedite their cases by filing a mandamus action in federal court, a different type of relief than that available to naturalization applicants.
The CIS office in Newark, N.J., has issued a notice indicating that certain applicants may request expedited name checks. These include applicants whose military deployment is imminent, individuals with pending litigation and people with "compelling reasons as provided by the requesting office (i.e., critical medical condition) assessed on a case-by-case basis."
Kristen Kussmann is a staff attorney with the Northwest Immigrant Rights Project. She may be reached at 206-957-8608 or kristen@nwirp.org.
