Some Immigrants Forced to Sue for Citizenship

[YuAndDan 153]

Some Immigrants Forced to Sue for Citizenship

December 20, 2006

Alfonso Chardy -- Miami Herald

Nancy Fernandez, a Cuban seeking U.S. citizenship, expected to swear allegiance to the United States within months of filing her paperwork. But three years went by and no one could explain why her case was taking longer than the usual six months.

Fernandez, 63, sued and within weeks her citizenship was approved -- among a growing number who are turning to the courts to expedite their citizenship or green-card requests. On Tuesday, she was among 6,000 new citizens sworn in at the Miami Beach Convention Center by Emilio Gonzalez, head of U.S. Citizenship and Immigration Services.

"I would say that 95 percent of the cases in which we have filed a federal lawsuit got a swearing-in notice," said Eduardo Soto, Fernandez's Coral Gables immigration attorney.

Immigration attorneys Mazen Sukkar in Hollywood and Stephen Bander in Miami are among several South Florida lawyers, including Soto, offering the niche service: suing for immigration documents.

Sukkar said he has filed 15 such suits in the past six months, and that in the vast majority of cases, his clients have received citizenship or green cards.

One of Sukkar's clients, a Middle Eastern professional, applied for citizenship four years ago, but it was only after he sued in November that immigration authorities scheduled him for naturalization in January.

Bander said he has filed at least 35 lawsuits for citizenship and residency since 2003 -- with most clients getting documents.

One of his clients, Wael Saffouri, is a former Jordanian of Palestinian origin who now lives in Miami.

He applied for citizenship in 2003. In March 2004, Saffouri was summoned to an interview at the citizenship office. He was asked questions about U.S. history and tested for knowledge of the English language.

Saffouri, a financial analyst in a private company, said the citizenship examiner told him "everything was fine" but that he lacked "FBI clearance."

Bander advised him that if he did not get clearance within 120 days after the interview, he should sue.

Federal regulations require that immigration authorities render a decision on a citizenship application within 120 days of an "initial examination."

Immigration attorneys interpret "examination" to mean "interview." Immigration officials construe the interview as part of a broader process that also includes background checks. In their view, the 120 days do not start running until background checks are complete.

As a result, the agency is no longer scheduling interviews until background checks are finished, said Ana Santiago, Miami spokeswoman for U.S. Citizenship and Immigration Services, or USCIS.

In Saffouri's case, he was sworn in in 2005 -- six months after he sued for citizenship.

In most cases, the reason for the delay is an uncompleted check of the applicant's background. Gonzalez said in Miami recently that at least one million applications remain stalled because of lengthy background checks conducted by the FBI and other agencies -- as well as rules limiting the number of visas per country.

But some lawyers claim suing also speeds the process.

"The reason why [lawsuits] are successful … is because the law is clear," Bander said. "The federal government cannot take an unreasonable amount of time to process a government benefit like a naturalization or permanent residence application."

After a complaint is filed, he said, "it becomes the interest of the U.S. attorney's office, who represents USCIS, to resolve the matter as quickly as possible."

But Santiago said there's no connection between suing and approval.

"We do not expedite cases because a person sues the agency," Santiago said. "We expedite humanitarian cases or [cases involving] a member of the armed forces who is about to be deployed, but not simply because a person sues us."

Santiago said any links between lawsuits and background check completions are a coincidence.

Only 1 percent of security checks requested by USCIS do not come back in less than six months, she said.

Thorough background checks, Gonzalez told The Miami Herald, take precedence over processing because of national security.

"I would rather … explain why I delayed a certain program than have to explain why, in an effort to expedite things, we naturalized a terrorist," Gonzalez said earlier this year.

Michael A. Cannon, chief of the FBI's national name check program, said in a federal court statement in Miami in September that 68 percent of the name checks submitted by USCIS are completed and returned to the agency within 48 hours.

But 22 percent are delayed 30 to 60 days, requiring further investigation. The remaining 10 percent are linked to an FBI record and subject to a wider review.

About 50,000 citizenship applications are processed at any given time at the Miami naturalization unit, part of U.S. Citizenship and Immigration Services.

Every year, more than half a million citizenship applications are processed nationwide. How many are delayed in Miami and across the country is not known. But immigration statistics suggest that more than 20,000 are delayed nationwide during any given year.

Fernandez applied for citizenship three years ago.

But her application was delayed because the FBI was unable to complete a check on her background, court documents in her case show. She hired Soto and sued USCIS in September. On Nov. 22, her attorneys learned immigration had approved her application.

"It was a dream come true," she said.

Source: Copyright © 2006, The Miami Herald. Distributed by McClatchy-Tribune Business News.

http://www.hispanicbusiness.com/news/newsb...s/more-news.asp

[Dr_LHA 3]

Note, they're suing for Citizenship, not a Green Card. The law that allows this does not cover Green Cards.

This thread should be moved to the Citizenship forum.

Edited December 21, 2006 by dr_lha

[khool 0]

They seem to be suing for both citizenship and residency.

This statement strikes me as funny: "The reason why [lawsuits] are successful … is because the law is clear," Bander said. "The federal government cannot take an unreasonable amount of time to process a government benefit like a naturalization or permanent residence application."

I'd like to see what law this guy is talking about. The federal government can do whatever it wants when it comes to immigration benefits. Immigration a privilege, not a right, and suits based on a privilege, like these, probably serve more to harass than anything else. That is why these lawsuits are seemingly successful. And such lawyers are making a fortune off of this sort of business.

Edited December 21, 2006 by khool

[YuAndDan 153]

Note, they're suing for Citizenship, not a Green Card. The law that allows this does not cover Green Cards.

This thread should be moved to the Citizenship forum.

Note: Paragraphs 2, 5, 18 indicate Green-Cards, and Permanent Residence Application (AOS)

Fernandez, 63, sued and within weeks her citizenship was approved -- among a growing number who are turning to the courts to expedite their citizenship or green-card requests. On Tuesday, she was among 6,000 new citizens sworn in at the Miami Beach Convention Center by Emilio Gonzalez, head of U.S. Citizenship and Immigration Services.

Sukkar said he has filed 15 such suits in the past six months, and that in the vast majority of cases, his clients have received citizenship or green cards.

"The reason why [lawsuits] are successful … is because the law is clear," Bander said. "The federal government cannot take an unreasonable amount of time to process a government benefit like a naturalization or permanent residence application."

[YuAndDan 153]

Some immigrants resort to lawsuits for green cards

OKLAHOMA CITY Some immigrants in Oklahoma who grow tired of waiting for answers on their requests to become permanent U-S residents are now filing lawsuits against the government.

Some immigrants have waited more than two years for an answer and at least 30 lawsuits were filed this year in U-S District Court for the Western District of Oklahoma. Most name Michael Chertoff who is head of the Department of Homeland Security which oversees U-S Citizenship and Immigration Services.

Douglas Stump with the American Immigration Lawyers Association says most of the lawsuits are for highly skilled medical researchers. He says every case he's filed has resulted in either a green card or naturalization.

Immigration lawyers and officials blame the delays on slow processing of background checks of the applicants by the F-B-I.

http://www.kswo.com/Global/story.asp?S=5828744

Immigrants sue government to get green cards faster

For more than two years, the Chinese doctor had been waiting to become a legal permanent resident of the United States. Until he got his green card, he could not apply for grants — vital to his career as a researcher at the University of Oklahoma Health Sciences Center. Changing jobs was out of the question under terms of his employment-based visa.

Every time Li called to check on the delay, U.S. Citizenship and Immigration Services officials said they were waiting for an FBI name check.

"I was so desperate. I had no idea what to do,” Li said.

The Internet provided the answer. On Web sites run by and for immigrants, Li learned how to file a lawsuit that might expedite his application. He downloaded a form, and in the space above the word "defendant,” he carefully printed "Michael Chertoff,” secretary of the U.S. Department of Homeland Security.

Li filed the suit Sept. 29. A month later, he had his green card.

Faced with long waits caused by a backlog of applications, more and more immigrants are following Li's path, using the courts to nudge U.S. Citizenship and Immigration Services, a unit of Homeland Security, to process stalled requests. In U.S. District Court for the Western District of Oklahoma alone, at least 30 cases against Chertoff were filed in 2006, including Li's, court records show.

Such lawsuits seek what is called a "writ of mandamus” — a court order requiring a government agency or official to perform a duty, in this case, to process an application. The order does not require a favorable outcome for the immigrant — only that he gets an answer one way or the other.

T. Douglas Stump, a national board member for the American Immigration Lawyers Association, has filed 18 such cases in Oklahoma, mostly for highly skilled medical researchers.

"Every case to date has resulted in action: Either they've been granted green cards or naturalization,” Stump said.

Background checks

U.S. Citizenship and Immigration Services are blamed for delays in processing immigration applications. But local immigration lawyers say the fault usually is with the FBI, which conducts security checks on every would-be immigrant to weed out criminals, drug traffickers and people with links to terrorism.

The requirement, introduced after Sept. 11, 2001, nearly doubled the number of names immigration officials submitted annually and created a huge backlog at the FBI.

"The sudden need for data overloaded the system years ago. We're still dealing with the result,” Stump said.

In May, immigration officials reported 235,802 FBI name checks pending. Sixty-five percent of those had been pending for 90 days or more, and 35 percent had been pending for a year or more, the report said.

The initial check takes about two weeks, and 80 percent of cases are cleared in that time, according to immigration service documents. Most others are resolved within six months. But in less than 1 percent of cases, it takes the agency six months or longer to determine whether the immigration applicant is a threat to the country, the agency says.

"Unfortunately, if you're in that 1 percent ... odds are it could be two to three years,” Stump said.

The wait is more than an inconvenience for foreign medical researchers such as Li. Researchers often depend on grants from the National Science Foundation and other entities that award money only to citizens or legal permanent residents.

"It's not like these foreign nationals are just eager-beaver to go to court. They have a compelling need to seek the relief,” Stump said.

‘There is a shortage'

While the United States must take care deciding who gets into the country, delays approving top-flight researchers could be against the country's best interests, said Stephen M. Prescott, president of the Oklahoma Medical Research Foundation, where 44 percent of 143 top-level researchers are here on visas.

Could the foundation get by without foreign nationals?

"Absolutely not,” Prescott said. "The fact is our education system has not produced a sufficient amount of laboratory technicians, scientists and engineers.”

While foreign-born individuals make up about 8 percent of the U.S. population, they make up 23 percent of the doctorate-level scientists and engineers, according to a National Science Foundation report.

The OU Health Sciences Center, where Li works, could not provide exact numbers but has "several dozen” foreign-born researchers and doctors, said Dewayne Andrews, vice president for health affairs and executive dean of the OU College of Medicine.

Andrews described the foreign-born researchers as dedicated and hard-working scientists whose presence enhances OU's scientific work while adding an international flavor to the campus.

"Can we function without them? Yes. But there is a shortage of individuals in this country to work in certain areas,” Andrews said.

So far, the United States has enough prestige to attract foreign researchers despite the hassles some face getting visas. But as other countries roll out the welcome mat, that could change, Prescott said.

"If we don't get them someone else will,” he said.

That ‘unlucky guy'

Li does not know why the FBI name check stalled his application, but the delay left him frustrated and depressed.

"I needed this green card. I wanted to apply grant. I want to have better job. A visa have so many restrictions,” said Li, who speaks English as a second language.

He came to Oklahoma on a student dependent visa in 2000. The Oklahoma Medical Research Foundation sponsored him for a temporary worker's visa that allowed him to stay for up to six years.

In 2003, Li moved from the foundation to the OU Health Sciences Center, which agreed to sponsor him for legal permanent residency.

When that application was approved in April 2004, Li filed another form to get his green card and began to settle down. Twenty-nine months elapsed before Li turned to the courts.Now that he has his green card, Li said he understands the need for background checks.

"I understand. I just don't want to be that unlucky guy,” Li said.

http://www.newsok.com/article/2987387/?template=news/main Edited December 21, 2006 by YuAndDan

[Dr_LHA 3]

Ah OK. Sorry. It should be pointed out that the law covering suing for citizenship is very different from filing a Writ of Mandamus. For citizenship Federal law requires that citizenship be granted within 120 days of passing your citizenship exam. If you don't get it within those 120 days, you have grounds to sue. There are no such rules for Green Cards.

[khool 0]

Ah OK. Sorry. It should be pointed out that the law covering suing for citizenship is very different from filing a Writ of Mandamus. For citizenship Federal law requires that citizenship be granted within 120 days of passing your citizenship exam. If you don't get it within those 120 days, you have grounds to sue. There are no such rules for Green Cards.

Thanks for the clarification, but still, that guy's statement is misleading.

[Dr_LHA 3]

"The reason why [lawsuits] are successful … is because the law is clear," Bander said. "The federal government cannot take an unreasonable amount of time to process a government benefit like a naturalization or permanent residence application."

Just to pick up this quote, the law is clear for citizenship, but I'm not so sure its that clear for Green Cards.

[kim&james 0]

Im just wondering if those who are/have been stuck in name check hell for their greencard will encounter the same problem when naturalising? I certainly hope not!

[rebeccajo 14]

"The reason why [lawsuits] are successful … is because the law is clear," Bander said. "The federal government cannot take an unreasonable amount of time to process a government benefit like a naturalization or permanent residence application."

Just to pick up this quote, the law is clear for citizenship, but I'm not so sure its that clear for Green Cards.

There's no reason for clarity because there simply isn't any legislation for it.

There is presently no such law requiring USCIS to perform what they have been paid to do for the I-485. But there is legal precedent aplenty (and growing every day) for the successful filing of Writ of Mandamus after a 'reasonable time' has passed. The concensus amongt the legal community for 'reasonable time' is two years.

From what I know of the law, the only legal principal at play would be that of 'reasonableness', which is a vaguery but one that exists as a remedy in law nonetheless. USCIS has been paid to perform a service and by virtue of accepting money for that service they need to 'do their job'.

Edited December 22, 2006 by rebeccajo

[Shami 0]

The law doesn't say anything about Green Card. This only apply for Citizenship. I have lived in this country for ten years, never been illegal. It's been six months they have not approved my case. I heard about story after story people entering the country illegaly and lived in united States illegaly but when they apply for green card they have no problem getting it. I have no legal grounds to sue USCIS, because the law does not say they have to grant me the green card even though I am married to an American Citizen.

Edited December 23, 2006 by Shami

[LaL 418]

The law doesn't say anything about Green Card. This only apply for Citizenship. I have lived in this country for ten years, never been illegal. It's been six months they have not approved my case. I heard about story after story people entering the country illegaly and lived in united States illegaly but when they apply for green card they have no problem getting it. I have no legal grounds to sue USCIS, because the law does not say they have to grant me the green card even though I am married to an American Citizen.

again - read the rest of the thread. Hundreds of people file Writ of Mandamus for greencard delays and the outcome is overwhelmingly positive. As rebecca stated, wait a reasonable amount of time, amass clear documentation that you have attempted to reconcile this by your own merit, and you may have a case. Again, this DOES work for greencards.

Im just wondering if those who are/have been stuck in name check hell for their greencard will encounter the same problem when naturalising? I certainly hope not!

yes, they can. AND lifting of conditions as i understand it.

[Girona40 0]

"the government argues that the timing of processing is a discretionary act".

News from the Courts

"If a government agency is unable or unwilling, however, to adjudicate an adjustment of status application within a reasonable time (which Congress has determined to be 180 days)"

An Analysis of Adjustment of Status Portability Under AC21

I don't agree with Rebecca that 2 years is a timeframe that one should be prepared to apply in order to meet the "reasonable" criteria here. If you think about it, why should you wait 2 years when an EAD is issued for 1 year - surely that would give you an indication as to when an AOS application is expected to be processed by. I know that it isn't always the case, but that is where I think you should be basing what Congress considered "reasonable" in the processing of AOS.

There are cases that have been through the courts, requesting the "service" the applicant is paying for is afforded them, within a reasonable timeframe. Many of these cases are filed well before 2 years has elapsed.

[LaL 418]

the lawyer i just spoke to advised me that we even have a case 7 months later. it really just depends on how much document you have amassed to support your case.

[Girona40 0]

the lawyer i just spoke to advised me that we even have a case 7 months later. it really just depends on how much document you have amassed to support your case.

and also what your circumstances are that make further delay "unreasonable".