SAN DIEGO—In a case that could help thousands of lawful permanent residents become American citizens, the ACLU, ACLU of San Diego & Imperial Counties, and DLA Piper today filed a class action lawsuit on behalf of four long-time, lawful permanent residents of the U.S. and others whose applications for naturalization have been mysteriously and illegally held up by pending FBI “name checks. The plaintiffs have each been kept in this state of indecision for at least two years, though the law requires the Bureau of Citizenship and Immigration Services (CIS) to decide naturalization applications within 120 days of a citizenship interview.
“It’s wrong to keep longtime lawful residents in limbo, when they are doing all they can to be Americans.” said David Blair-Loy, Legal Director for the ACLU of San Diego & Imperial Counties. “Many have been waiting for a decision for years, unable to vote, serve on a jury, travel freely, or otherwise exercise the rights and responsibilities of United States citizenship in a country they call home.”
The plaintiffs include:
- a tenured professor of mechanical and aerospace engineering who is married to a native-born U.S. citizen;
- a refugee from Iraq who assisted the U.S. in establishing a safe zone in the Kurdish region of Iraq after the first Gulf War and was sponsored by the World Relief Organization and granted asylum by the U.S. government; and
- a doctor who is a native of Iran.
“Even the Citizenship and Immigration Services itself questions the name check process,” said Nancy Dix, whose firm, DLA Piper US LLP serves as co-counsel on the class action suit. “Unlike other routine FBI background checks, the name checks bring up many false-positives, sending those poor folks into a bureaucratic Catch-22. If there are lawful permanent residents who pose a security risk, the government should discover that quickly and get to the bottom of any possible questions.”
“These name-checks have become a bureaucratic black hole,” said Kevin Keenan, Executive Director of the ACLU of San Diego & Imperial Counties. “Whether through intent or indifference, the government’s delays are causing real harm to upstanding members of our community and their families.”
Because the delays have prevented the plaintiffs and others similarly situated from enjoying their full rights under the law, the ACLU complaint asks the U.S. District Court to authorize their naturalization as allowed under the Immigration and Nationality Act, which provides the court with this power when there has been no adjudication within 120 days of an initial examination.
In recent years, thousands of lawful permanent residents—many of whom are from the Middle East and South Asia—have been forced to wait years for final decisions on their naturalization applications. The CIS claims that the backlogs are caused by the FBI, which performs “name checks” on each application prior to a final determination.
An ombudsman for CIS issued a 2007 Annual Report, which singled out name checks as a significant problem, stating that the checks ‘significantly delay adjudication of immigration benefits…hinder backlog reduction efforts, and may not achieve their intended national security objectives.’ The report noted that “any person referenced in a file,” such as crime victims, witnesses, or others innocent of any wrongdoing, will appear in the name check database
When a name check results in a “hit” on an applicant’s name, it can take years to resolve the issue. The ACLU suit argues that an applicant may be identified erroneously as a “person of interest” to the FBI, even though the applicant has committed no crimes and is not a suspect. The FBI database contains more than the names of people who have been convicted of or arrested for a crime. The database may identify a different person with a name similar to the applicant’s and also contains data on innocent witnesses or victims of a crime. Any “hit” can delay a decision on the naturalization application.
The costs are high. Those applicants left in this indeterminate state without citizenship rights cannot vote or serve on a jury, sponsor foreign relatives, travel abroad without fear of being denied re-entry, or qualify for other rights dependent on citizenship. Elderly or disabled applicants run the risk of losing SSI benefits. Their children may be forced to file their own applications if they become adults while their parent’s application is pending.
All plaintiffs either work or are students, and all qualify for naturalization but for the final “name check” clearance. Qualifications include:
- being a lawful permanent resident for at least five years
- having “an understanding of the English language and the history and civics of the United States
- living in the United States for a specified amount of time
- being of “good moral character”
- undergoing a criminal background check
“By delaying citizenship applications for years – when they normally are decided within weeks – the government agencies are breaking the law,” said Cecillia Wang, senior staff attorney with the Immigrants’ Rights Project of the ACLU. “In America, the government is supposed to play by the rules. Our clients have committed themselves to this country and want to pledge their allegiance. They have waited patiently, and the time to fix the problem is now.”
The suit is filed against Michael Chertoff, Secretary of the Department of Homeland Security, which oversees the Bureau of Citizenship and Immigration Services; Robert Mueller, Director of the Federal Bureau of Investigation; Alberto Gonzalez, Attorney General of the United States, who together with Secretary Chertoff is responsible for enforcement of immigration laws; Emilio Gonzalez, Director of the Bureau of Citizenship and Immigration Services, whose agency is responsible for processing naturalization applications; and Paul Pierre, District Director of CIS, San Diego District.