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Around the country, thousands of legal immigrants have asked federal judges to compel the government to act on work visas or permanent-residency requests that have languished for years. While some succeed, many find the courthouse door barred by judges who say they lack jurisdiction to force action. This legal rift among district courts may come to a head in two appeals filed recently in the 3d and 11th U.S. circuit courts of appeals concerning the extent of court jurisdiction to compel the attorney general to resolve long-delayed security clearances. Immigration lawyers have discovered that one way to expedite action in a case stuck in a backlog of 400,000 immigration service requests for FBI security checks has been to file a mandamus suit asking a court to compel the government to decide. This strategy brought a flood of 3,000 mandamus actions in 2006 alone, according to Amy Tehauno, an immigration lawyer in Teaneck, N.J., who has tracked the cases. But since January, the government has been fighting them, claiming that the courts lack jurisdiction to intercede under immigration reforms in the REAL ID Act of 2005. And district judges have come down on both sides ever since. Russian boxing promoter Boris L. Grinberg has waited six years for the U.S. Citizenship and Immigration Service (CIS) to rule on his application to become a permanent resident and receive a skilled-worker visa. In March, U.S. District Judge Federico Moreno of Miami dismissed the mandamus action seeking to force the government to act, saying courts had no jurisdiction to rule on the pace of immigration decisions. Grinberg v. Swacina, 478 F. Supp. 2d 1350 (2007). It is currently on appeal in the 11th Circuit. In New Jersey, Feng Li, a Chinese molecular biologist specializing in breast cancer research, has waited nearly three years for clearance, but U.S. District Judge Stanley Chesler ruled Congress did not specify a time period in which immigration officials must act and refused to step in. Feng Li v. Gonzalez, No. 06-5911. Escaping limbo Not everyone remains in limbo. Last year, judges in California, Connecticut, Florida, Minnesota, New York, Pennsylvania and Texas responded to mandamus actions by asserting jurisdiction and compelling the government to take action one way or another. Many of the same states include judges who have rejected jurisdiction. Tehauno, who represents Li, appealed to the 3d Circuit this month. The security reviews involve FBI name checks and includes a variety of phonetic spellings for names. People with common names, such as Li or Garcia, will get stuck in FBI name checks. “There is a tiny staff at the FBI doing the checks and, given the huge numbers, it is a completely silly check,” said Tehauno of SimmsParris Maldonado Tehauno. The aliens have already passed fingerprint checks, she said. Grinberg’s lawyer, Anis Saleh of Saleh & Associates in Miami, said his client is “being given the runaround. Our argument is that the government has a duty to make a decision. We want the court to order them to make a decision. That is not discretionary, he’s entitled to a decision,” said Saleh. By contrast, the government argued in papers filed in the Li case, as it has in many others, “Not only does the statute vest the Attorney General with exclusive and discretionary authority, it also does not place any time restriction upon the attorney general.” The court would have to create a time standard “out of thin air,” said Jafer Aftab, an assistant U.S. attorney involved in filings in the Li case in New Jersey. He argued that Congress set specific time limits in other areas of immigration law, but not here. CIS, despite saying it would respond to written questions, ultimately declined to make any statement on the situation. Robert Whitehill, an immigration specialist in Philadelphia-based Fox Rothschild’s Pittsburgh office, called the delays “unseemly.” That is what is “bringing the proliferation of mandamus actions,” he said. Even so, it takes considerable courage for noncitizens to sue the U.S. government, he said. Justin X. Wang of Baughman & Wang in San Francisco said he has filed 150 mandamus actions in the last three years. “It seems in the Northern District [of California], judges are very receptive to our cases,” he said. Before December 2006, once a mandamus suit was filed, the CIS would request the FBI to expedite the security name checks and get it resolved. Last year, Wang said, his cases were taking 47 days to resolve. Then everything changed and the government began filing motions to dismiss for lack of jurisdiction, Wang said. “I guess they were overwhelmed.” Manmohanjit Singh, an Indian asylum seeker who waited eight years for a decision on his permanent-resident status in San Francisco, was finally successful when the court ordered the government to act. Singh v. Still, 470 F. Supp. 2d 1064 (2006). “The judges are seeing that these cases are unreasonably delayed,” said Stacy Tolchin, Singh’s lawyer in Los Angeles with Van der Hout, Brigagliano & Nightingale. But if the appeals courts agree with the government argument that they lack jurisdiction over discretionary actions, “then the government can take 10 years, 20 years or 50 years and the courts couldn’t do anything about it,” said Emily Creighton, staff attorney for the American Immigration Law Foundation, which provides research for immigration lawyers. “We will all be at the whim of the agency,” she said. Security ignored Yet security checks have been ignored in a rush to clear up other backlogs. In a spat between CIS and the State Department, the State Department announced last month that an allotment of green cards would be available for immigrants in highly skilled job classes, setting off an avalanche of applications in July. But CIS thwarted those hopes suddenly by announcing rapid approval of backlogged visa requests and using up the year’s allotment. The rapid approvals were given even before the FBI security checks were complete. “My instant reaction was, ‘that stinks, but I am going to ask the [3d Circuit] to take judicial notice,’ ” said Tehauno. “ They shot themselves in the foot.” Complicating matters still further, the 5th Circuit ruled earlier this year that a statutory 120-day time period for the CIS to act on naturalization does not begin to run until the CIS has a definitive response from the FBI on criminal background checks. Walji v. Gonzales, No. 06-20937. That conflicts with a number of district courts and the 9th Circuit. And a Florida judge has rejected the 5th Circuit rationale as flat wrong in June. Naos v. Swacino, No. 07-20724 (S.D. Fla.). The Walji decision “makes me sick at my stomach,” said Whitehill. It says that the courts will do nothing to encourage or require the FBI to act in a timely fashion, he said.

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