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Immigration lawyers are abuzz over a series of recent rulings by a federal judge that harshly criticized the government for taking too long to rule on some applications for citizenship due to the extensive background checks that have left some Green Card holders waiting for up to three years or more to be naturalized. “Congress certainly did not intend for the process to become tortuous, expensive, mystifying and delayed, but it has,” U.S. District Judge Michael M. Baylson wrote in Mocanu v. Mueller. “Although careful security checks must be made for individuals seeking entry into the United States, and for applications for permanent legal residency, I fail to see why an individual who has achieved legal permanent residency must undergo a detailed security clearance in order to become a naturalized citizen,” Baylson wrote. Baylson is presiding over six such cases brought by “lawful permanent residents,” or LPRs, who claim their applications for citizenship have been mired in bureaucratic delay for years. In a Jan. 11 decision, Baylson said, “Federal judges are not equipped to micro-manage the naturalization process nor to deny the executive branch of the government the right to carry out the intent of the Legislature for criminal background checks, etc.” Nonetheless, Baylson found that, under the Administrative Procedures Act, the court has jurisdiction “to compel agency action that has been unlawfully withheld or unreasonably delayed.” Baylson noted that many of his colleagues on the Eastern District of Pennsylvania federal bench have handled similar cases and that most have rejected the government’s argument that the courts lack jurisdiction. But what set Baylson’s decision apart was his decision to consolidate the six cases and to look to the bigger picture, as well as his criticism of the government’s litigation tactics and his creative approach to putting a stop to it. “These cases are in large part unnecessary and reflect a small scale litigation epidemic, similar to a sudden bout with the measles, and in my opinion, just as readily curable,” Baylson wrote. Baylson found that the U.S. Citizenship and Immigration Services has been “consistently taking steps to make cases moot before a merits resolution is reached.” Whenever a court rules in favor of a plaintiff on the issue of jurisdiction, USCIS simply expedites the plaintiff’s petition, effectively ending the case. “I have reached a tentative conclusion that defendant USCIS, overwhelmed by these applications, has adopted a strategy of favoring delay by litigation, instead of developing an orderly and transparent administrative resolution,” Baylson wrote. “Although this strategy is often evident in private party damages litigation, it is improper in these cases. Congress did not intend that the path to citizenship be conducted along a detoured and rocky road of litigation. Given the resources of the government and the technology available in our digital world, it is necessary and proper under the APA that I inquire into the availability and reasonableness of administrative remedies to these cases.” As a result, Baylson issued a temporary injunction that barred the government from taking any action on the cases pending before him. “This action is necessary because, otherwise, this judicial revolving door will continue from case to case and judge to judge. Other courts will be forced to consider the same issues over and over again, with extensive briefing without final resolution or testing of the government’s position before an appellate court,” Baylson wrote. “Although our judicial system wisely grants parties in most types of litigation the right to settle at any time, these cases are different because they do not seek damages or a specific substantive result. The court has decided to issue this temporary injunction because Congress intended the naturalization process to be conducted in a fair and expeditious manner; it certainly did not intend for the process to be what it has been alleged, and what appears to be a judicial revolving door,” Baylson wrote. Baylson held a hearing on Jan. 22 and heard testimony from USCIS Director Donald Neufeld, who explained that the government requires three kinds of background checks when a LPR applies for naturalization – a fingerprint check, an FBI name check, and an interagency background information system check. In a Jan. 25 decision in Mocanu, Baylson found that the long delays in some cases stem from the FBI “name check,” a generic term reflecting a detailed investigation into an individual’s background that consists not only of any criminal record, but also whether the individual’s name appears as a subject or otherwise in any type of FBI investigative file for any reason. Although most requests for name checks are resolved quickly, Baylson found that some take up to 60 days, others take up to six months and that about 1 percent result in investigations of six months or longer. “It is obvious that the petitions for all of the plaintiffs in these cases are in the latter category since their name checks have taken several years, without resolution,” Baylson wrote. Baylson said he questions whether an applicant for naturalization who has already gone through the FBI name check process twice – upon entry and again when granted LPR status – should be required to undergo the process a third time to become a naturalized citizen. An answer to that question is necessary, Baylson said, to “determine whether USCIS properly requires this check, particularly when it has undisputedly resulted in such significant costs, hardships and delays.” Baylson said he recognized that USCIS has the discretion to adopt the procedures it sees fit to carry out its mandate, but said he questions whether the current process – and the delays it causes in some cases – can be justified. “Given that naturalization applicants have already gone through the FBI name check process twice, the court has genuine concerns as to whether there is any justification for USCIS requiring a third name check, as it has resulted in delays in these cases of several years, significant expenditures of public funds, expenses by these individuals, plus the resulting uncertainty in their personal and professional lives, and immeasurable impact on their families,” Baylson wrote. In perhaps his harshest criticism of the government’s conduct, Baylson suggested that such long delays make no sense if the government truly has security concerns. “One looking at this issue from a national security perspective could seriously question the priorities adopted by USCIS in its dealing with the one percent of naturalization applicants for whom name checks cannot be completed promptly,” Baylson wrote. “If these individuals are potentially dangerous to the security of the United States, it seems their applications should be expedited over all other work. The government should not allow individuals who are threats to the security of our country to remain at large in the United States.” If any of the applicants is a true security concern, Baylson said, they “should instead be placed in custody as quickly as possible, have their LPR status revoked, and be deported, forthwith. . . . If they are truly a danger, . . . why has USCIS allowed them to remain here for three years? Delaying their citizenship status does not eliminate the danger they may pose to our country; indeed, as LPRs, they can remain here indefinitely.” Instead, Baylson said, the one percent of cases whose investigations are taking the longest should instead be “investigated more quickly, not more slowly, than everyone else. Indeed, logically, their petitions should be expedited, not to settle their lawsuits, but to protect our national security.” Baylson ordered lawyers on both sides to file briefs by Feb. 1 addressing the question of whether USCIS “can properly require a name check for all naturalization applicants without any congressional statute, authorization or rule promulgation within its own agency – particularly where the name check process for plaintiffs is taking several years for completion, and information as to the completion date or reason for the delay is unavailable.” He also ordered the lawyers to address the issue of what remedy is available to the plaintiffs, focusing on whether the court itself should grant the relief or instead remand the cases to USCIS, and whether the court may impose time limits. Lead plaintiff attorney James J. Orlow of Orlow & Orlow said he expects Baylson to issue a declaratory judgment that says the government has violated the APA due to its unreasonable delays. Orlow said a joint brief filed by the plaintiffs will also ask for mandamus relief that will require the government to act on the plaintiffs’ petitions quickly. Assistant U.S. Attorney Virginia Gibson, the chief of the civil division of the U.S. Attorney’s Office, declined to comment on what the government will argue in its brief this week. (Copies of the 20-page opinion in Mocanu v. Mueller , PICS No. 08-0075, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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