By Bethany McAllister, Esq.
Last weekâ€™s article briefly explored the naturalization process from the time of submitting the application to the decision.
Unfortunately, many applicants attend the required interview and pass the English language and civics parts of the test only to hear the adjudicating officer tell them that itâ€™s not enough. Then U.S. Citizenship and Immigration Services (â€œCISâ€) sends the applicantâ€™s file to the FBI for a security background check.
The rumor on the street: CIS requires FBI checks to unfairly scrutinize and penalize Muslims and Arabs after 9/11, but… Surprise! Wrong again! Congress started requiring the FBI investigations well before 9/11, in 1998.
After the Interview
The applicant quickly learns that CIS does not offer a time limit for the FBI investigation and finds himself in immigration limbo. Nobody wants to live in limbo and virtually all applicants try to find a way out–but the only sure way to get a decision is to file a civil suit.
The reason to file a civil claim is to have a judge review the application because CIS is not doing it fast enough. The goal is to have a judge render a decisionâ€“ either to send the case back to CIS for a decision or to make the decision herself.
When an applicant for naturalization decides to go to federal court he has to make sure that the court has jurisdiction. Jurisdiction is tricky but thereâ€™s no way to get around it. Even lawyers must use care when they are trying to prove to a court that it has jurisdiction over a case.
Essentially, the applicant must meet two requirements in order for the case to be properly filed. First, the applicant must file at the right place. Second, the applicant must file the case for the right reason.
If he does not meet either requirement then the court will not hear the case. It is surprising to people that a court can actually decide whether or not it has the authority to hear a case. But this is true… a judge can refuse to hear a case and therefore the best thing is to make sure that everything is done right the first time around.
Letâ€™s look at the first requirement. Under the law, applicants have the right to file a civil claim in a â€œdistrict court.â€
Not all courts are the same. Hereâ€™s a simple example in Michigan. In Michigan there are district courts such as the 36th District Court. And then there are federal district courts such as the Eastern District of Michigan. Although a statute may clearly designate that a case may be filed in â€˜district court,â€ for applicants living in Michigan, the meaning is not always clear cut. And just for the record, with this type of case, â€œdistrict courtsâ€ refer to federal courts.
Filing a case in the correct court, though, is not that hard. The hard part is proving that the correct time to start counting is immediately after the interview because applicants need time on their side.
120 Days Starts When?
By law, CIS must make a decision on a naturalization application within 120 days of a complete examination. Itâ€™s common knowledge among applicants that CIS has to make a decision in 120 days. The sooner they can start counting, the better. Applicants argue that the proper time to start counting the 120 days is at the conclusion of the interview. The CIS argues that the initial interview is not a complete examination. The CIS further argues that the â€œexaminationâ€ is a process and the interview is only one part of the process because CIS may require more than one interview, witnesses (in addition to the applicant), books, documents, and other forms of evidence.
Then CIS sends files to the FBI for a security investigation. And now the big question. What if CIS interviews a person and then sends the file to the FBI all the while ignoring the 120-day processing time?
Is CIS breaking the law? Yes–but only if the law designates that the first interview constitutes the whole and complete â€œinitial examination.â€
If the interview is only one part of a process, then the answer is not so simple. The CIS takes the position that since the interview is one part of a process, it does not matter that the FBI security check will take place until after the interview. The CIS can always request additional evidence. In other words, the 120-day clock doesnâ€™t start ticking until after CIS acquires the FBI results.
However, an applicant may successfully argue that the interview should trigger the 120 days if for instance he can prove that CIS is holding a file hostage with no plans to send the file to the FBI.
Since each case is different, a creative attorney may discover that CIS has engaged in unlawful conduct for other reasons. An applicant who has this type of concern should locate an immigration specialist in his local area who has experience speaking with supervisors at the local office. (I am not referring to a attorney who has â€œcontactsâ€ (see last weekâ€™s article), rather I am speaking about attorneys who have had contact with the local office and know the person with whom to speak.) There may be other mitigating factors, as well, that demonstrate that CIS is breaking the law, which would break in favor of the applicant in a civil suit.
What happens next? There are not certain outcomes. No attorney can guarantee the best results. Attorneys can only work hard within the context of a specific clientâ€™s case.
It is true that Muslims and Arabs have had to struggle a great deal after September 11th, but I am trying to show that everything will work outt according to the deliberate procedures that the government follows, even if it takes some time and perhaps even some litigation. Going to court should be a last resort.
Hereâ€™s some advice: the legal system is scary and complicated–avoid do-it-yourself advice. Some of my clients come to my office explaining the law to me. They bring printouts from the internet. The funniest and most absurd legal advice that they bring to me is from an â€œimmigration message boardâ€ where people share war stories and offer reliable advice. If a person chooses to take his case to court without the assistance of an attorney, he should especially avoid well-meaning message boards.
Immigration law is emotionally hard. It is admittedly illogical and unpredictable. It is smoke and mirrors.
Although you might have had negative experiences with CIS, it is important to maintain a positive attitude until you have a real reason to believe you are being discriminated against (a reason other than having to wait the same amount of time as other applicants).
Remember also that other people are â€œsingled out,â€ not just Muslims and Arabs. I will leave you with two examples. The first example is of a young Japanese woman who works as an engineer. She has waited three years for CIS to clear her name–not for citizenship, but just for a green card! The second example involves an Egyptian student who came to my office a few weeks ago. He complained about how CIS had treated him unfairly.
He explained that he was angry because CIS granted him citizenship on the spot while CIS sent his wifeâ€™s file to the FBI. He told me that she was a housewife and he is more of a threat to national security than a young mother.
As you can see from what we have explained above, this man had in fact been lucky, and although it may be difficult to wait, you should find comfort in knowing that your wait and the discomfort you experience may possibly be just the usual difficult process associated with immigration matters, not necessarily discrimination.
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.