Bethany McAllister is a local attorney who has graciously offered to provide an immigration column for TMO this week and next week.
Part 1 of 2 parts
Rumors abound in the Muslim and Arab communities that the U.S. government has launched covert immigration policies specifically designed to prevent Muslims and Arabs from acquiring U.S. citizenship.
In fact these rumors are many times overblown. As a matter of fact, many times people lie about their immigration status. It is is a fiction to believe that one personâ€™s bad experience represents many others that have not come to the surface. My personal experience has been that it is not uncommon to go to immigration court only to find out someone who has sworn up and down that he is a U.S. citizen is actually being deported for overstaying a tourist visa. Another experience I have had is that a permanent resident finds himself in deportation proceedings and tells his friends that the U.S. government has singled him out after profiling him, failing to mention that in fact he is suspected of having committed a heinous crime.
This article addresses some of the forms of relief available to a person awaiting a decision on his naturalization case. Naturalization cases are to some degree arbitrary and subjective. Therefore, some naturalization applicants have waited three years for a decision while others have received decisions at the close of the first interview or after only a few months.
The outcome of the ideal case involves five steps: (1) file form N-400; (2) attend the biometrics appointment; (3) attend the citizenship interview at the local district office; (4) pass the civics and English language components of the test; and most importantly, (5) receive a final decision on the spot.
It goes without saying that the best decision is an approval leading to an appointment to attend the swearing-in ceremony.
Regrettably, some naturalization applicants will not receive a final decision after the citizenship interview. At the conclusion of the interview, adjudicating officers inform some applicants that although they passed both tests, a decision cannot be made this time.
The officer might further inform the applicant that the U.S. Citizenship and Immigration Services (CIS) will send the file to the FBI for a security check. Even worse, the officer might also tell the applicant that CIS will not guarantee that the results will come within a specific time-frame.
The hopeful applicant might remind the officer that U.S. immigration law entitles him to a decision within 120 days of the interview because he has an absolute right to become a U.S. citizen and no discretion is involved–but instead the officer assures him this is not the case… and the applicant finds himself in the ugly world of immigration limbo.
The natural reaction to a delayed decision is frustration and despair. A person who has never even received a parking ticket feels insulted at the scrutiny, because he is not a criminal. Nevertheless, all persons inside of the United States have a right to due process. In other words, those in immigration limbo have a right to seek relief in federal court.
Here are three strategies applicants use. First, some applicants believe that arguing with supervisors will result in an immediate approval. Second, some people try to contact a friend of a friend who owes him a very big favor. The very big favor in this situation requires the alleged contact who works for the FBI or CIS to use his power and influence to move the file to the front of the line or grant an approval. Third, applicants in immigration limbo hire attorneys to avoid the delay and guarantee an approval.
Let us look at these strategies one by one. First, arguing with immigration officials does not work. Second, â€œfavorsâ€–it is very unlikely that a government employee will actually use his power and influence to perform a miracle. Any government employee who engages in this type of conduct may find himself the subject of a federal investigation at some point in the future. Sometimes applicants have served as witnesses in criminal immigration fraud cases that have resulted in convictions against government employees and other relevant parties. This has resulted in hundreds of immigrants being required to serve as witnesses in federal investigations which subsequently resulted in criminal convictions against government employees and other parties.
Third, attorneys. The harsh reality is that attorneys do not have any magical powers to speed up cases any more than a physician can guarantee that he or she will cure a person of a terminal illness. Another reality is that attorneys do not have connections within the government who will grant approvals. If any attorney makes this type of promise, avoid him or her at all costs because attorneys are also vulnerable to crminial convictions for their misdeeds (like for instance immigration fraud). As a general rule, attorneys can help applicants establish eligibility by producing all requested and relevant evidence in the proper manner.
Remember: the success of a case does not necessarily reflect the effectiveness of an attorney–any more than a denial has a direct relation to an attorneyâ€™s incompetence. Although attorneys do not have magical powers, a competent attorney will have the technical knowledge and creativity to navigate applicants through the federal court system.
There are basically two strategies that an applicant can use to receive a decision on his case. First, he/she can file a writ of mandamus in federal court. A writ of mandamus is used to compel CIS to act on an application and grant an answer. A successful writ of mandamus does not require CIS to grant an approval. The CIS will still have the authority to deny a case. The benefit of filing a writ of mandamus is to receive a definitive answer.
A second strategy involves filing a Petition for Hearing on Naturalization Application. This type of federal court filing asks the judge to do one of two things. First, the judge will exercise his or her authority to render a decision on the naturalization case. In the alternative, the judge will also have the authority to compel CIS to make a decision.
Please see next weekâ€™s column for the second part of this article–which will address the judicial process in greater detail.
This article does not constitute legal advice and those with immigration problems should seek out the services of a competent immigration specialist.
Ms. McAllister is an attorney in private practice in Dearborn, MI. Please direct immigration inquiries to Ms. McAllister by telephone at (866) 584-4411.