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If it’s not one thing, it’s another. But something is always happening at the U.S. Citizenship and Immigration Service (USCIS) that results in certain cases falling into a deep, black hole from which there appears to be no escape. Those currently afflicted by these delays are those whose cases are pending security clearances. All applicants for a U.S. immigration benefit are subject to criminal and national security background checks. According to USCIS, the purpose of these checks is “to enhance national security and ensure the integrity of the immigration process.” A number of problems have arisen with these background checks. A November 2005 report by the Department of Homeland Security, Office of Inspector General recognizes that “USCIS security check records are fragmentary. Incomplete records hinder staff in monitoring check completion and result in processing inefficiencies.” Increased security clearances do have their place, but are they really serving their purpose of keeping us more secure if they never get cleared? Are the endless delays and lack of accountability justified? In an April 2006 Fact Sheet posted on USCIS’ Web site titled “Immigration Security Checks � How and Why the Process Works,” USCIS seeks to provide this justification as it “strives to balance the need for timely, fair and accurate service.” The USCIS Fact Sheet outlines the three most widely used background check mechanisms: The Interagency Border Inspection System (IBIS) name check, FBI fingerprint check, and FBI name checks. USCIS also maintains the authority to conduct other background investigations, as they deem to be warranted. The IBIS check is a multi-agency system that combines information from a variety of databases relating to national security risks, public safety issues, and other law enforcement concerns. IBIS checks are performed on every single application and petition, each and every time an application or petition is submitted. USCIS advises that results to IBIS checks are immediately available. The FBI fingerprint check and FBI name check are performed on some, but not all, applications and petitions. The FBI fingerprint check provides information relating to criminal background within the United States, and results are available within 24 to 48 hours. The FBI name check differs from the FBI fingerprint check. The FBI name check reviews administrative, applicant, criminal, personnel and other files compiled by a number of U.S. law enforcement agencies. Initial responses to FBI name checks take about two weeks, but these name checks are not considered complete until full information is obtained. A hit as the result of any of these background check mechanisms can mean a number of things. Frequently it means that the applicant happens to have the same name as someone who is of concern. It may also be that the entry in the database relates to something minor that is not a basis for denying a visa, and there are also many times where the entry is quite simply a mistake. USCIS does advise that such hits do yield information about applicants involved in crimes, or who have links to terrorism. However, since these are highly confidential issues of national security, no information about such hits – either statistically or providing case examples – has been made available to the public. Rather, for most of us, a hit is synonymous with intractable delay, since once there is a hit, the security clearance never actually clears. The petition is simply left to languish, with the applicant given no opportunity to clarify a mistaken identity, otherwise clear his or her own name, or establish that the hit is something minor and they are nevertheless entitled to the immigration benefit. Unfortunately, when there is a hit, the applicant is not provided any information regarding the nature of the hit. In fact, the only information the applicant is provided is that the petition is delayed because of a security clearance issue. Often, even the location of the applicant’s file is kept classified. Nor is it apparent that the government is taking steps to make sure that this security clearance hit is not a real security threat. Since one of the main purposes of these extensive checks is to enhance national security, it would be expected that such a hit would elicit some sort of government response as the subjects of these security clearances are physically present in the United States. The government’s inaction in these cases suggests that they do not believe that such hits indicate a security threat, and if there is no threat, why finalize processing of the case? Ours is not to question why. Ours is to find a solution to compel the government to do its job by filing a mandamus action in federal district course pursuant to 28 U.S.C. Section 1361. The Mandamus Act authorizes district courts to order a remedy where the plaintiff demonstrates that he or she has the right to the relief requested; the defendant has a duty to perform the act; and there is no other remedy available. The court may only compel the government to take an action, it cannot compel the agency to exercise its discretion in a particular manner. As a result, it is possible that filing a mandamus may result in a prompt denial of the application. However, where the government has a nondiscretionary duty to adjudicate an application, mandamus is appropriate where the government fails to act within a reasonable amount of time. This is the issue with many adjustment of status is applications, which have been mired in these security clearance delays. An adjustment of status application basically registers an individual as a permanent resident (green card holder) after he or she has already been determined to be eligible for permanent residency. The question that arises here is what is a reasonable amount of time. At least one court has answered. The U.S. District Court in Florida granted a writ of mandamus in an employment-based adjustment of status case, finding that four years is an unreasonable length of time for such a petition to be pending. A successful mandamus action does not necessarily mean federal court involvement. Filing the mandamus action, or even an initial complaint with the U.S. Attorney’s Office, may prompt the government to take whatever action is requested. If the U.S. Attorney’s Office is successful in getting the FBI to expedite the security clearance, a complaint in federal court can be avoided. However, many times the complaint will have to be filed in federal court to get resolution. While mandamus does offer a solution to these security clearance delays, it may be a lengthy and expensive process. Moreover, it really does not clarify how any of this is enhancing national security. SUZANNE B. SELTZER is partner of Klasko Rulon Stock & Seltzer. She is a member of the National Coalition for Access to Healthcare, as well as co-chairwoman of AILA’s NY-NJ State Department of Labor Liaison Committee. She is a frequent speaker on immigration options available to international medical graduates, and is the author of Options for J-1 Clinicians: Expanded Use of the O-1 Visa.

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