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AMP Report – February 10, 2007

Delay in citizenship applications:
Civil rights groups file class-action
 suit against government

In San Francisco, CA, civil rights groups filed a class-action lawsuit on February 8 against the federal government for its practice of indefinitely delaying citizenship applications in violation of the Constitution and federal statutes and regulations.

The first of its kind in Northern California, the lawsuit seeks to enforce federal laws that expect the government to decide a citizenship application within 120 days of the naturalization test. Many of the named plaintiffs have been waiting for several years, a clear violation of the law.

The plaintiffs, long-time legal permanent residents of Northern California, have met all the legal requirements for citizenship, including passing their immigration interview and clearing criminal record checks, but have not been granted citizenship due to a so-called “FBI name check,” a process that has taken years to complete.

The eight plaintiffs include one Afghan, two Pakistanis, four Chinese and one Canadian national.

“I was excited when I passed the interview and the immigration officer told me that I would get a final response, at the latest, in three months. It has been over two years and still no word,” said 25-year- old Sana Jalili who has two American-born children. She immigrated to the United States from Pakistan when she was 15.

Ms. Jalili applied for naturalization in December 2003 and successfully passed her interview and criminal background checks in September 2004. At the end of the interview, a US Citizen & Immigration Services (USCIS) officer informed her that she would receive a notice of oath ceremony within three weeks to three months.

The law suit said: “Ms. Jalili meets all statutory requirements for naturalization, but her application has not been adjudicated. USCIS has informed Ms. Jalili that her application is pending because of a name check. Ms. Jalili is suffering prejudice from the delay in her naturalization application.”

Abdul Ghafoor, another Pakistani national plaintiff, applied for naturalization in March 2004. He successfully completed his naturalization examination and criminal background checks in October 2004 and was told at that time that he should receive his notice within 120 days. In response to Mr. Ghafoor’s several inquiries, the USCIS informed him that his background check is pending.

“The government’s failure to process naturalization applications in a timely manner creates terrible hardships for people like Abdul Ghafoor, who has been unable to bring his wife and four young children to the United States for the last several years” said Julia Harumi Mass, staff attorney for the American Civil Liberties Union (ACLU) of Northern California.

The ACLU Immigrants’ Rights Project, the ACLU of Northern California, the Asian Law Caucus, and the Council on American-Islamic Relations, San Francisco Bay Area Chapter (CAIR-SFBA), all jointly filed the lawsuit in federal district court in San Francisco. “This lawsuit deals with the government’s recent attempts to evade the law: moving the unreasonable delay earlier to skirt the letter of the law while still violating people’s due process rights,” said Sin Yen Ling, a staff attorney with the Asian Law Caucus.

The Council on American-Islamic Relations’ San Francisco Chapter alone has received more than 65 cases, mostly from people of Middle Eastern or South-Asian origin. Other civil rights groups are also reporting a disproportionately high number of persons affected among the American Muslim community.

Defendents

Defendants in the San Francisco lawsuit, titled Zhang v. Gonzales, are officers of USCIS and the Federal Bureau of Investigation (“FBI”) who are responsible for the naturalization process, including the FBI name check, which USCIS requires for naturalization despite the absence of any promulgated rule or regulation.

The lawsuits said: Defendants’ rationale for its unreasonable delays – that the delays are required to complete “FBI name checks” – highlights an independent violation of the Administrative Procedures Act: Defendants’ failure to follow the notice and comment requirements of 5 U.S.C. 553. CIS has promulgated no regulations concerning a “name check,” but nonetheless has imposed the FBI name check as a requirement for five years – without any deadlines for completion of the checks. In contrast, immigration regulations do provide for criminal records checks based on Plaintiffs’ fingerprints and biographical data. Each of the Plaintiffs has passed those specific background checks. Because Defendants’ addition of the FBI name check constituted a substantive rule and causes undue burden and prejudice to Plaintiffs and other members of the proposed class, the public should have been provided notice and an opportunity to comment prior to its implementation.

The lawsuit argued that the plaintiffs have spent many years in the United States and have made this Nation their home. They seek to pledge their allegiance to their adopted country and to participate fully in U.S. society as citizens. Each of the Plaintiffs has met the statutory requirements to become a U.S. citizen, and in many cases have sought relief through requests to representatives in Congress and through formal inquiries with the government. Nonetheless, each of the Plaintiffs has been stymied in his or her efforts by the unreasonable and extraordinary delay of the Respondents.

As a result of the Defendants’ failure to abide by the law, which is inconsistent with properly promulgated regulations and with the statutes passed by Congress, Plaintiffs are unable to participate in civic society by voting and jury service, the lawsuit said. Plaintiffs also are unable expeditiously to sponsor for lawful permanent residency for immediate relatives living abroad including, in some cases, their spouses and children. Plaintiffs also are unable to participate freely as U.S. citizens in the Visa Waiver Program and to travel abroad and return to the United States without fear of exclusion.

It may be recalled that in August 2006, ten Middle Eastern and Asian immigrants sued the government for letting their U.S. citizenship applications linger indefinitely by delaying background checks. Filed in U.S. District Court in Los Angeles, the suit asks that a federal judge review the files and administer the oath of citizenship. It also sought class-action status to include all immigrants who have been waiting at least six months for naturalization after filing applications at the U.S. Citizenship and Immigration Service in Los Angeles.

Interestingly, seven Muslims were notified in October 2006 that their applications had been approved, two months after they joined a lawsuit accusing immigration officials of illegally delaying background checks and allowing applications to linger indefinitely.

In May 2006, ten Chicago area Muslim men filed a class-action lawsuit against the federal government alleging their quest to become U.S. citizens is being delayed because of their Islamic faith and male gender. The Syrian, Moroccan, Jordanian, Pakistani and Egyptian natives have no criminal records, but they have been waiting one to four years for the government to make a decision on their applications, Midwest Immigrant & Human Rights Center attorney Chuck Roth said. Some of their wives applied at the same time and have since received their U.S. citizenship.

Detail of California cases:

Abdul Ghafoor

Abdul Ghafoor is a native and citizen of Pakistan. He has a bachelor’s degree in Humanities from Bahauddin Zakariya University in Pakistan. He immigrated to the United States as a lawful permanent resident in April 1999. He currently works for the U.S. Postal Service as a mail carrier.

Mr. Ghafoor applied for naturalization in March 2004. He successfully completed his naturalization examination and criminal background checks in October 2004 and was told at that time that he should receive his notice within 120 days. Mr. Ghafoor meets all other statutory requirements for naturalization. Nonetheless, his application has not been adjudicated.

Despite numerous in-person and written inquiries to CIS, including inquiries made by an attorney Mr. Ghafoor retained at his own expense to represent him with respect to his pending naturalization application, CIS has failed to adjudicate his naturalization application. Mr. Ghafoor has received notices from CIS saying that his background check is pending.

Mr. Ghafoor is suffering extreme prejudice from the delay in adjudication of his naturalization application. His wife and four children live in Pakistan and he can afford to visit them only once a year. Although he applied for them to join him in the United States in 2002, the government has not yet granted them visas to reunite with him in the United States. They are subject to long waiting periods due to Mr. Ghafoor’s status as a noncitizen. He seeks to naturalize both to speed his family’s ability to join him in the United States and also because he has been subjected repeatedly to secondary immigration inspections – including strip searches, hours-long detentions that have caused him to miss connecting flights, and rude treatment – when he has reentered the United States after visiting his wife and children in Pakistan.

Sana Jalili

Sana Jalili is a native and citizen of Pakistan. She came to the United States in 1995, at the age of 15, as a dependent of her parents, who had H-1 employment visas. Ms. Jalili has been a lawful permanent resident of the United States in 2001. She attended high school on

Long Island in New York, and graduated with honors. She then attended the State University of New York at Stony Brook and graduated after only three years with a Bachelor of Science in information systems. Following graduation, she worked as an IT specialist in the Information Technology Leadership Program at Travelers Insurance Company. She later also served as a Connecticut state court interpreter and offered multi-cultural classes in her town. She and her husband, a U.S. citizen, married during Ms. Jalili’s second year of college. They now have two U.S.-citizen children under the age of five. Mr. Jalili is currently home-schooling her daughters full-time. Ms. Jalili’s husband supports the family financially as a project manager at IBM.

Ms. Jalili applied for naturalization in December 2003 and successfully passed her interview and criminal background checks in September 2004. At the end of the interview, a CIS officer informed her that she would receive a notice of oath ceremony within three weeks to three months.

Ms. Jalili applied for naturalization in December 2003 and successfully passed her interview and criminal background checks in September 2004. At the end of the interview, a CIS officer informed her that she would receive a notice of oath ceremony within three weeks to three months.

Ms. Jalili meets all statutory requirements for naturalization, but her application has not been adjudicated. She has contacted CIS repeatedly, both in the Hartford, Connecticut, office where she originally filed her application, and then in the San Jose and San Francisco offices, after she and her husband moved to California. Ms. Jalili also sought assistance from U.S. Representative Nancy Johnson and the CIS Ombudsman office, to no avail. CIS has informed Ms. Jalili that her application is pending because of a name check.

Ms. Jalili is suffering prejudice from the delay in her naturalization application. America is her home and she serves her local community in many ways. By delaying her naturalization, the government has prevented her from enjoying the liberties and duties of citizenship, including participation in the democratic process through voting. Ms. Jalili does not have the same legal status as her husband and children, which is especially difficult when the family travels together abroad. Upon gaining citizenship, Ms. Jalili also would like to apply for interpreter positions with government agencies, which may require U.S. citizenship, and would like to sponsor her parents for lawful permanent resident status so that her daughters can enjoy a quality relationship with their grandparents.

Alia Ahmedi

Alia Ahmedi is a 73-year-old native and citizen of Afghanistan. She came to the United States as a lawful permanent resident in November 1986, sponsored by her son Basheer Ahmedi, a U.S. citizen. Ms. Ahmedi and her husband, a U.S. citizen, currently live in Fremont, California, with Basheer. She also has five other children living in the United States. Of her six children, five are U.S. citizens. Ms. Ahmedi also has over 20 grandchildren, all U.S. citizens, living in the United States.

In October 2002, Ms. Ahmedi applied for citizenship and successfully completed her naturalization interview and criminal background checks in May 2003. She meets all other statutory requirements for naturalization. At the end of the interview, the CIS officer told Ms. Ahmedi that she had passed her examination and would receive her oath notice shortly.

Approximately three to four months after successfully passing her naturalization examination, Ms. Ahmedi contacted CIS because she had not received her oath notice. A CIS employee told Ms. Ahmedi that her application was still pending. Ms. Ahmedi has followed up with further contacts with CIS by telephone and in person. Each time, CIS officers have informed her that her naturalization application is still pending due to an FBI name check. She also has had to re-submit her fingerprints as her application has been pending so long that CIS informed her that her original fingerprint card “expired.” Ms. Ahmedi’s children also contacted their representatives in Congress for assistance. Representative Pete Stark made an inquiry to CIS, which responded that a name check was pending.

Ms. Ahmedi has suffered harm from the delay of her naturalization. One of her daughters lives outside of the U.S. part-time. Because it is extremely difficult for citizens of Afghanistan to obtain visas, she is unable to visit her daughter and grandchildren while they are abroad. In addition, Ms. Ahmedi is elderly and the anxiety surrounding the delay in the granting of her citizenship has put extreme pressure on her already frail health. Indeed, Ms. Ahmedi previously received disability assistance from the Social Security Administration, but those benefits were cut off because lawful permanent residents are permitted such benefits for a limited period of time.

Yinan Zhang

Yinan Zhang is a 33-year old native and citizen of China. He has been a lawful permanent resident of the United States since September 1995, when he adjusted his status through his U.S.-citizen father’s petition. Mr. Zhang currently works as a family caregiver for his ailing father, Zu Ying Zhang. Mr. Zhang and his father live in San Francisco, California.

Mr. Zhang submitted his naturalization application on July 2001 and successfully completed his naturalization interview and criminal background checks in September 2002. The day after passing his naturalization interview, a CIS officer telephoned Mr. Zhang and asked him to provide proof of selective service registration. Soon thereafter in September 2002, Mr. Zhang submitted the requested “status information letter,” thereby satisfying the requirements for naturalization. He meets all other statutory requirements for naturalization.

Mr. Zhang has been waiting more than four years since his interview, and has yet to receive an adjudication of his application. Mr. Zhang attempted to check on the status of his application through an automated CIS customer service line, but the system stated that a final decision cannot be made on any application until national security checks are complete. During the past four years, Mr. Zhang has followed up with further contacts with CIS by telephone and in person. Each time, immigration officers have informed him that his application is pending due to the FBI name check.

Mr. Zhang has suffered and continues to suffer prejudice from the delay of his naturalization. He has been deprived of the substantial and unique rights and duties of U.S. citizenship, including the right to vote, the right to obtain a U.S. passport, the right to travel freely, and the right to receive certain governmental and non-governmental benefits, such as tuition assistance and scholarships.

Zhong Fu

Zhong Fu is a 69-year old native and citizen of China. He came to the United States as a lawful permanent resident in March 1999, through the petition of his U.S.-citizen mother. Mr. Fu is retired and currently caring for his elderly sick mother, who is 90 years old and suffers from Alzheimer’s disease. Mr. Fu and his mother currently live in San Francisco, California. Mr. Fu has a U.S.-citizen sister, and she resides in the Sunset District of San Francisco, California. Mr. Fu’s deceased father was a U.S. citizen.

In or about February 2004, Mr. Fu submitted his citizenship application and successfully completed his naturalization interview and criminal background checks on July 2004. He meets all other statutory requirements for naturalization. At the end of his interview, the CIS officer informed him that he passed the tests for English and U.S. history and government. Mr. Fu has been patiently waiting for his oath notice since that time.

Starting approximately three to four months after successfully passing his naturalization examination, Mr. Fu contacted CIS on three separate occasions through the “Infopass” online appointment scheduler. On each occasion, an immigration officer informed Mr. Fu that his application was pending until national security checks are completed and the local CIS office receives a response.

Mr. Fu has suffered prejudice from the delay of his naturalization. Since his arrival in March 1999, Mr. Fu has never left the United States to visit family in China. He is currently living on his retirement income and therefore cannot afford to visit China on a frequent basis. Due to the expense of travel, Mr. Fu would like to visit family members for an extended period when he is able to afford the trip. However, as a lawful permanent resident, he is not permitted to stay abroad more than six months at a time. By naturalizing, Mr. Fu will be able to spend more time with family on the infrequent occasions that he can afford the airfare to China.

Miao Ling Huang

Miao Ling Huang is a 46-year old native and citizen of China. She came to the  United States as a lawful permanent resident in December 1998, through the petition of her husband’s sister, a U.S. citizen. Ms. Huang and her husband, who is also a lawful permanent resident, live in San Francisco, California with their two children, Tian H. Rong and Zijun Rong, also lawful permanent residents. If Ms. Huang naturalizes, her youngest daughter, currently 13 years old, stands to derive automatic United States citizenship, pursuant to the Child Citizenship Act of 2000. Ms. Huang currently works at the San Francisco Juvenile Hall as a food service operator.

Ms. Huang applied for citizenship in November 2003 and successfully completed her naturalization interview and criminal background checks in June 2004. She meets all of the statutory requirements for naturalization. At the end of her interview, she was informed that she passed the tests on English and U.S. history and government, but that a decision could not be made on her application because background checks have not been completed.

Starting approximately three to four months after successfully passing her naturalization examination, Ms. Huang contacted CIS to inquire about her oath notice. She was told on several occasions that her application was pending for the completion of all necessary background checks. In December 2005, Ms. Huang contacted U.S. Senator Barbara Boxer’s office for assistance on her naturalization application. On January 2006, U.S. Senator Boxer’s officer informed her application was pending due to a security check submitted to the FBI and ultimately, that she must wait due to the sensitive nature of these clearances.

Ms. Huang has suffered harm from the delay of her naturalization. Her 68-year old ailing mother lives in China. Ms. Huang would like to serve as her mother’s primary caretaker, but has been unable to obtain the proper visa to petition for her mother to immigrate to the United States. Upon naturalization, Ms. Huang will be able to petition for her mother to immigrate more expeditiously. The delay in Ms. Huang’s naturalization has caused her great anguish by making it impossible to care for her mother during these critical years.

Yan Wang

Yan Wang is a 36-year old native and citizen of China. She came to the United States on a K-1 fiancee visa in February 1999 and became a lawful permanent resident on July 2000. Ms. Wang and her husband, a U.S. citizen, live in San Francisco, California. Ms. Wang is currently attending City College in San Francisco and learning the English language while she assists her husband, Patrick Mao, with his business.

In May 2003, Ms. Wang applied for citizenship and successfully completed her naturalization interview and criminal background checks in January 2004. She meets all other statutory requirements for naturalization. At the end of the interview, a CIS officer told Ms. Wang that she passed her examination and would receive her oath shortly.

Approximately four months later after successfully passing her naturalization examination, Ms. Wang contacted CIS because she had not received her oath notice. The immigration office in San Francisco, California informed her that the application is pending because of a name check. Ms. Wang has made approximately eight to nine inquiries with CIS in the course of the last few years, and each time, she was informed that the FBI name check is not complete.

Ms. Wang has suffered harm from the delay of her naturalization. Her ailing father lives in China and she wishes to spend time with him. As a citizen, she would be able to petition for lawful permanent resident status for her father so that she can care for him.

Yan Yin is a native of China and citizen of Canada who came to the United States in 1996 on a TN visa, which is issued to professionals from Canada and Mexico. Ms. Yin, who was a professor of physics in China, came to the United States to work on a project funded by the U.S. Department of Energy. She now lives in Fremont and owns her own business there. Ms. Yin has a sister in the Washington, D.C., area who is a U.S. citizen.

In August 2003, Ms. Yin applied for naturalization. In March 2004, she successfully passed her naturalization examination and criminal background checks. She meets all other statutory requirements for naturalization.

Despite Ms. Yin’s numerous inquiries with CIS, inquiries to Senator Barbara Boxer and Representative Pete Stark, her repeated submission of fingerprints, and her receipt of documents in response to a Freedom of Information Act/Privacy Act request that showed no basis for denying naturalization, CIS has failed to adjudicate her application for naturalization. CIS informed Ms. Yin that her background check had not been completed and in March 2006, CIS informed Ms. Yin that it needed six additional months to process her application. In July 2006, CIS informed Ms. Yin that she should receive her citizenship in September 2006, but her application has still not been adjudicated.

Ms. Yin has suffered prejudice from the delay in adjudication of her naturalization. She contracts with the U.S. government as part of her business and is unable to apply for certain grants because of her immigration status as a non-citizen. Because of her immigrant status, Ms. Yin is unable to communicate with certain laboratories that are important to her business. She is anxious to become a citizen so that she can travel and market her product with more ease and flexibility.