USCIS takes a loss in Court

[Divine Mercy 0]

This doesn't pertain to most of us yet but will someday..

The Legal Intelligencer Vol. 237 No. 29

Immigration Lawyers Win Big in Name-Check Suits

Baylson Rules Use of Naturalization Procedure By USCIS Must End

By Shannon P. Duffy

US Courthouse Correspondent

In a significant win for immigration lawyers, a federal judge has ruled that the U.S. Citizenship and Immigration Services must cease using a FBI name check in the final security clearances for some immigrants seeking naturalization because it has led to “unreasonable delays.”

In Mocanu v. Mueller, U.S. District Judge Michael M. Baylson is presiding over six lawsuits brought by lawful permanent residents, or LPRs, who claim their applications for citizenship have been mired in bureaucratic delays, sometimes for years.

Baylson found that USCIS was never authorized by Congress to add the FBI name check to its process of conducting background checks.

“If in fact Congress intended for USCIS to require a ‘name check,’ Congress presumably would have used this term because the ‘name check’ program had been in place for many years, and Congress could have directly referenced a ‘name check,’ but did not do so,” Baylson wrote in his 38-page opinion.

“The court concludes that USCIS has required FBI name checks under the mistaken impression that it has authority, based on its on regulations, to require such checks for LPRs who seek to become naturalized citizens,” Baylson wrote.

Baylson disagreed with USCIS, saying “bedrock principles of administrative agency law” show that USCIS’s name-check requirement has never been authorized by Congress and is not mentioned in any of the current USCIS regulations.

As a result, Baylson enjoined USCIS from continuing to use the name check in the cases before him until it has followed the proper procedures for amending its regulations, including a notice and comment period.

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 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 in a prior opinion.

Baylson found 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 unlike his colleagues, Baylson took an especially aggressive approach to the cases, finding that the systemic problems would never be solved if the government were allowed to continue expediting any case that came to court, effectively mooting the claim and avoiding any judicial action.

“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 USCIS has been “consistently taking steps to make cases moot before a merits resolution is reached.”

USCIS was “overwhelmed” by applications for citizenship, Baylson said, and “has adopted a strategy of favoring delay by litigation, instead of developing an orderly and transparent administrative resolution.”

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.

Baylson then ordered the lawyers to submit briefs on the issue of what remedy the court should order and said they should specifically address the question of whether the FBI name check was authorized by Congress.

Now Baylson has sided with the plaintiffs’ lawyers, led by James J. Orlow of Orlow Kaplan & Hohenstein, who argued that the FBI name check is the main cause of the long delays in some cases and that it never authorized by Congress or regulation.

But Baylson also ordered USCIS action on their naturalization applications, would be similar to dealing only with the risks posed by the tip of an iceberg, but ignoring the submerged dangers – here, the unreasonable delays that have occurred,” Baylson wrote.

“Another apt metaphor is the screaming 2-year-old child who can be quickly appeased by giving in to demands, but doing so frequently only causes more serious, long-term problems as the child grows older,” Baylson wrote.

For a long-term solution, Baylson said, “it is necessary and appropriate to require USCIS to address the delay by revising its regulations, which is accomplished by initiating the notice and comment rule-making procedure.”

Merely giving USCIS a deadline for taking action on the six plaintiffs whose cases are before Baylson “would have predictable but unfair results,” the judge said.

USCIS would obtain expedited treatment from the FBI for those plaintiffs, Baylson said, and other applicants would be placed behind them in line.

“This ‘squeaky wheel’ solution only allows one applicant to ‘pass Go’ at the expense of another applicant who will be moved several spaces backward,” Baylson wrote.

By requiring USCIS to institute a notice and comment procedure in order to continue the FBI name-check program, Baylson said, the court’s goal was “to increase the transparency of the process.”

In promulgating the regulation, Baylson urged USCIS to consider several issues, including whether an FBI name check should be required for an LPR who has already undergone at least one and often two prior name checks and whether a check of the criminal background for an LPR who has already passed an FBI name check would be sufficient.

[SusieK 3]

This doesn't pertain to most of us yet but will someday..

The Legal Intelligencer Vol. 237 No. 29

Immigration Lawyers Win Big in Name-Check Suits

Baylson Rules Use of Naturalization Procedure By USCIS Must End

By Shannon P. Duffy

US Courthouse Correspondent

In a significant win for immigration lawyers, a federal judge has ruled that the U.S. Citizenship and Immigration Services must cease using a FBI name check in the final security clearances for some immigrants seeking naturalization because it has led to “unreasonable delays.”

In Mocanu v. Mueller, U.S. District Judge Michael M. Baylson is presiding over six lawsuits brought by lawful permanent residents, or LPRs, who claim their applications for citizenship have been mired in bureaucratic delays, sometimes for years.

Baylson found that USCIS was never authorized by Congress to add the FBI name check to its process of conducting background checks.

“If in fact Congress intended for USCIS to require a ‘name check,’ Congress presumably would have used this term because the ‘name check’ program had been in place for many years, and Congress could have directly referenced a ‘name check,’ but did not do so,” Baylson wrote in his 38-page opinion.

“The court concludes that USCIS has required FBI name checks under the mistaken impression that it has authority, based on its on regulations, to require such checks for LPRs who seek to become naturalized citizens,” Baylson wrote.

Baylson disagreed with USCIS, saying “bedrock principles of administrative agency law” show that USCIS’s name-check requirement has never been authorized by Congress and is not mentioned in any of the current USCIS regulations.

As a result, Baylson enjoined USCIS from continuing to use the name check in the cases before him until it has followed the proper procedures for amending its regulations, including a notice and comment period.

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 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 in a prior opinion.

Baylson found 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 unlike his colleagues, Baylson took an especially aggressive approach to the cases, finding that the systemic problems would never be solved if the government were allowed to continue expediting any case that came to court, effectively mooting the claim and avoiding any judicial action.

“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 USCIS has been “consistently taking steps to make cases moot before a merits resolution is reached.”

USCIS was “overwhelmed” by applications for citizenship, Baylson said, and “has adopted a strategy of favoring delay by litigation, instead of developing an orderly and transparent administrative resolution.”

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.

Baylson then ordered the lawyers to submit briefs on the issue of what remedy the court should order and said they should specifically address the question of whether the FBI name check was authorized by Congress.

Now Baylson has sided with the plaintiffs’ lawyers, led by James J. Orlow of Orlow Kaplan & Hohenstein, who argued that the FBI name check is the main cause of the long delays in some cases and that it never authorized by Congress or regulation.

But Baylson also ordered USCIS action on their naturalization applications, would be similar to dealing only with the risks posed by the tip of an iceberg, but ignoring the submerged dangers – here, the unreasonable delays that have occurred,” Baylson wrote.

“Another apt metaphor is the screaming 2-year-old child who can be quickly appeased by giving in to demands, but doing so frequently only causes more serious, long-term problems as the child grows older,” Baylson wrote.

For a long-term solution, Baylson said, “it is necessary and appropriate to require USCIS to address the delay by revising its regulations, which is accomplished by initiating the notice and comment rule-making procedure.”

Merely giving USCIS a deadline for taking action on the six plaintiffs whose cases are before Baylson “would have predictable but unfair results,” the judge said.

USCIS would obtain expedited treatment from the FBI for those plaintiffs, Baylson said, and other applicants would be placed behind them in line.

“This ‘squeaky wheel’ solution only allows one applicant to ‘pass Go’ at the expense of another applicant who will be moved several spaces backward,” Baylson wrote.

By requiring USCIS to institute a notice and comment procedure in order to continue the FBI name-check program, Baylson said, the court’s goal was “to increase the transparency of the process.”

In promulgating the regulation, Baylson urged USCIS to consider several issues, including whether an FBI name check should be required for an LPR who has already undergone at least one and often two prior name checks and whether a check of the criminal background for an LPR who has already passed an FBI name check would be sufficient.

What goes around comes around

[C and J 1]

“The court concludes that USCIS has required FBI name checks under the mistaken impression that it has authority, based on its on regulations, to require such checks for LPRs who seek to become naturalized citizens,” Baylson wrote.

I particularly liked this quote. I also liked the quote about making the USCISs processes more transparent and actually having to notify people of it's procedure changes. There seem to be quite a few changes that go through without any word at all until it is already in place.

[Divine Mercy 0]

“The court concludes that USCIS has required FBI name checks under the mistaken impression that it has authority, based on its on regulations, to require such checks for LPRs who seek to become naturalized citizens,” Baylson wrote.

I particularly liked this quote. I also liked the quote about making the USCISs processes more transparent and actually having to notify people of it's procedure changes. There seem to be quite a few changes that go through without any word at all until it is already in place.

Exactly, they think they are the be all, end all.

I found it disturbing, yet unsurprising, that USCIS uses the courts to buy themselves more time. How typical of governement, spend your energy figuring out how to avoid doing your job rather than just doing it. Thank God a judge finally said enough.

[SusieK 3]

“The court concludes that USCIS has required FBI name checks under the mistaken impression that it has authority, based on its on regulations, to require such checks for LPRs who seek to become naturalized citizens,” Baylson wrote.

I particularly liked this quote. I also liked the quote about making the USCISs processes more transparent and actually having to notify people of it's procedure changes. There seem to be quite a few changes that go through without any word at all until it is already in place.

Exactly, they think they are the be all, end all.

I found it disturbing, yet unsurprising, that USCIS uses the courts to buy themselves more time. How typical of governement, spend your energy figuring out how to avoid doing your job rather than just doing it. Thank God a judge finally said enough.

for USCIS lol

[Mohgli 0]

This doesn't pertain to most of us yet but will someday..

The Legal Intelligencer Vol. 237 No. 29

Immigration Lawyers Win Big in Name-Check Suits

Baylson Rules Use of Naturalization Procedure By USCIS Must End

By Shannon P. Duffy

US Courthouse Correspondent

In a significant win for immigration lawyers, a federal judge has ruled that the U.S. Citizenship and Immigration Services must cease using a FBI name check in the final security clearances for some immigrants seeking naturalization because it has led to “unreasonable delays.”

In Mocanu v. Mueller, U.S. District Judge Michael M. Baylson is presiding over six lawsuits brought by lawful permanent residents, or LPRs, who claim their applications for citizenship have been mired in bureaucratic delays, sometimes for years.

Baylson found that USCIS was never authorized by Congress to add the FBI name check to its process of conducting background checks.

“If in fact Congress intended for USCIS to require a ‘name check,’ Congress presumably would have used this term because the ‘name check’ program had been in place for many years, and Congress could have directly referenced a ‘name check,’ but did not do so,” Baylson wrote in his 38-page opinion.

“The court concludes that USCIS has required FBI name checks under the mistaken impression that it has authority, based on its on regulations, to require such checks for LPRs who seek to become naturalized citizens,” Baylson wrote.

Baylson disagreed with USCIS, saying “bedrock principles of administrative agency law” show that USCIS’s name-check requirement has never been authorized by Congress and is not mentioned in any of the current USCIS regulations.

As a result, Baylson enjoined USCIS from continuing to use the name check in the cases before him until it has followed the proper procedures for amending its regulations, including a notice and comment period.

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 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 in a prior opinion.

Baylson found 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 unlike his colleagues, Baylson took an especially aggressive approach to the cases, finding that the systemic problems would never be solved if the government were allowed to continue expediting any case that came to court, effectively mooting the claim and avoiding any judicial action.

“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 USCIS has been “consistently taking steps to make cases moot before a merits resolution is reached.”

USCIS was “overwhelmed” by applications for citizenship, Baylson said, and “has adopted a strategy of favoring delay by litigation, instead of developing an orderly and transparent administrative resolution.”

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.

Baylson then ordered the lawyers to submit briefs on the issue of what remedy the court should order and said they should specifically address the question of whether the FBI name check was authorized by Congress.

Now Baylson has sided with the plaintiffs’ lawyers, led by James J. Orlow of Orlow Kaplan & Hohenstein, who argued that the FBI name check is the main cause of the long delays in some cases and that it never authorized by Congress or regulation.

But Baylson also ordered USCIS action on their naturalization applications, would be similar to dealing only with the risks posed by the tip of an iceberg, but ignoring the submerged dangers – here, the unreasonable delays that have occurred,” Baylson wrote.

“Another apt metaphor is the screaming 2-year-old child who can be quickly appeased by giving in to demands, but doing so frequently only causes more serious, long-term problems as the child grows older,” Baylson wrote.

For a long-term solution, Baylson said, “it is necessary and appropriate to require USCIS to address the delay by revising its regulations, which is accomplished by initiating the notice and comment rule-making procedure.”

Merely giving USCIS a deadline for taking action on the six plaintiffs whose cases are before Baylson “would have predictable but unfair results,” the judge said.

USCIS would obtain expedited treatment from the FBI for those plaintiffs, Baylson said, and other applicants would be placed behind them in line.

“This ‘squeaky wheel’ solution only allows one applicant to ‘pass Go’ at the expense of another applicant who will be moved several spaces backward,” Baylson wrote.

By requiring USCIS to institute a notice and comment procedure in order to continue the FBI name-check program, Baylson said, the court’s goal was “to increase the transparency of the process.”

In promulgating the regulation, Baylson urged USCIS to consider several issues, including whether an FBI name check should be required for an LPR who has already undergone at least one and often two prior name checks and whether a check of the criminal background for an LPR who has already passed an FBI name check would be sufficient.

this explains the press release that GCs would be issued without fbi name check, LONG LIVE THE JUDICIAL SYSTEM, restored my faith in the law.

TIME FOR ACTION - now is naturalization a privelege?