No Expedite on Name Check Where Mandamus Only Reason

February 27th, 2007

The USCIS will no longer request that the FBI expedite a name check on a pending immigration case where the only reason for the request is a mandamus action filed with the district court.  The USCIS will continue to consider expedite requests in the following situations:

1.  Military deployment;

2.  Aging out of children on immigration applications;

3.  Significant and compelling reasons, such as medical conditions; and

4.  Loss of social security benefits or other subsistence at the discretion of the USCIS director.

The USCIS states that the name checks are part of the security checks to ensure the safety of our nation.  However, how does the inordinate backlog in processing these security checks, sometimes pending for years, enhance our protection?  For our government to allow individuals, who are real threats to our country, to remain for long periods of time in the US while their applications are pending actually harms our national security. 

In light of this new policy, aliens with pending immigration cases will face a more sustained and complicated battle in the federal courts to have their applications decided within a reasonable period of time.  The government should beware, however, since if it loses it could lose monetarily as well.  The courts have awarded attorneys fees to the winning party.

Balance Lost in Formulating Immigration Policy

February 19th, 2007

According to the New York Times, we have failed to properly balance immigrants’ human rights against get-tough immigration enforcement policies.  In particular, the article points to the overzealous tough policies in border enforcement, federal raids, local crackdowns, gutting of due process and increasing suspicion, backlogs and hate.  The editorial concludes:”Enforcement of laws cannot be ignored. Punish immigrants who enter illegally, make them pay back taxes and fines, restrict their ability to get work through deceit and false identities. But open a path to their full inclusion in the life of this country.

The alternative “the path of immigrant exploitation, of harassment without hope” will only repeat the ways the country has shamed itself at countless points in its history.”

The New Citizenship Test is Administered

February 19th, 2007

The USCIS’s pilot citizenship test has been administered and there are reports that it is more difficult than the current test. Listen to the applicant about their experiences at NPR.

Mandamus Jurisdiction Victory

February 19th, 2007

The United States District Court for the District of Oregon held in favor of the alien in compelling the USCIS and FBI to adjudicate the alien’s long-pending Form I-751 petition to remove the conditions on his residency and Form N-400 Naturalization Application.  On 4/29/04, Lazli filed Form N-400 to naturalize.  On June 5, 2006, the USCIS sent him a notice of an interview, but then cancelled this interview through a notice on July 3, 2006.  It never rescheduled the N-400 interview.  On November 4, 2005, Lazli filed among others a mandamus action compelling the USCIS to adjudicate the Form I-751, to complete the security checks within 90 days and to adjudicate the N-400 within 120 days of the court’s order.  The USCIS claimed that it had no jurisdiction because Lazli failed to establish the nondiscretionary duty to adjudicate the I-751.  The Court found for Lazli:

“Although in her Findings and Recommendation, the Magistrate Judge’s conclusion arose under a mandamus action, the reasoning applies equally under § 1252. Because Plaintiffs have established Defendants’ duty to adjudicate Plaintiffs Form I-751 and Naturalization Application within a reasonable time is ministerial and so plainly prescribed as to be free from doubt for purposes of mandamus relief, the Court concludes Plaintiffs have also established Defendants’ duty to adjudicate Plaintiffs’ Form I-751 and Lazli’s Application for Naturalization within a reasonable time is not a discretionary duty over which the Court lacks jurisdiction under § 1252.”  Lazli v. USCIS, Feb. 12, 2007.

The court ordered that the FBI complete its name and fingerprint checks by May 14, 2007, adjudicate the N-400 by June 13, 2007 and send a copy of the N-400 decision to the court within five days of adjudication.

USCIS Proposes Significant Increase in Immigration Fees

February 5th, 2007

On February 1, 2007, the USCIS proposed an increase in fees for immigration application and petitions.  According to USCIS’s fact sheet, the weighted average increase is 86%.  However, it states that fees for individuals will actually increase 66% because applicants for adjustment of status will no longer need to pay for interim benefits (e.g. work authorization).  

Under this new scheme, the application fee for citizenship would increase to $595 from $330, the fee for permanent residency would increase to $905 from $325, and fees for sponsoring family members or employees would more than double. Refugees and victims of human trafficking or sex crimes would still have their fees waived, and other applicants could request hardship waivers.

The USCIS states that the substantial increase in fees will “allow USCIS to close certain funding gaps, achieve security objectives, modernize its business infrastructure, accomplish performance goals, eliminate problematic incentives, the issuance of interim benefits, and fairly allocate costs.”  Please see the Q&A dated January 31, 2007, from USCIS entitled “Building an Immigration Service for the 21st Century.”

Congress created a user account for the legacy Immigration and Nationality Service in 1998, transforming it into a fee-based agency as opposed to one funded by Congressional appropriations.  The Administration has instructed the USCIS to become fully funded by consumers as opposed to being supported by the general population through tax dollars.

According to The American Immigration Lawyers Association (AILA), which opposes the proposal, “This increase would create a barrier for some immigrants and serve as a new tax on applicants seeking to immigrate or to become citizens,” said Carlina Tapia-Ruano, President of AILA.

“USCIS may well be the only government agency other than the Postal Service that tries to operate 99% on user fees,” added Tapia-Ruano. “These fees are expected to pay not just for the services delivered to the applicant, but for the agency’s overhead and for law enforcement activities such as investigations and security checks. It is well past time that the Administration requested, and the Congress appropriated, funds to allow this agency to properly do its job. Funding an entire agency on the backs of immigrants and their U.S. citizen spouses is beyond the pale.”

“Also, AILA is concerned that the public will not get significantly improved services to go with the significantly increased fees,” said Tapia-Ruano. “USCIS Director Gonzalez has stated a goal for the agency of a 20% improvement in processing times by the end of 2009. A 66% increase in fees now for at best a 20% improvement in service three years from now is simply not acceptable.”

According to AILA, over the past 12 years we already have seen a fourfold increase in the cost of applying for citizenship. This proposed hike would result in a more than sevenfold increase. In 1994 the cost was only $95, now the total fees are $400, and under this proposal they will become $675. AILA is unconvinced that the money from new increases will be put toward improving the antiquated systems that have caused years-long delays in the path to citizenship.

According to the New York Times, “advocacy groups on both sides of the immigration debate agree that the increases are exorbitant, and we agree. The proposed fees would become a means test for new Americans, slamming the door on many people who desperately want to be part of this country and have much to contribute.

The blame clearly lies with Congress, which has required the agency to support itself entirely with fees. Congress should abandon this misguided rule and allocate the money to run the agency adequately and efficiently. All Americans benefit from the healthy, invigorating flow of naturalized citizens, and all Americans not just the newest, least powerful ones should help pay for it.”

I agree that the taxpayers of America, through Congressional appropriations, should fund the government’s fair share of the immigration process.  Immigration provides many benefits to our nation, including desperately needed skilled and unskilled workers, and also allows the US to continue to hold itself out as the ultimate beacon of light to aspiring refugees and immigrants seeking a better life and opportunities for themselves and their families.