While permanent residency applicants were pleasantly surprised by the new USCIS policy allowing adjudication of applications with FBI name checks pending for more than 180 days, naturalization applicants in the same situation were disappointed to learn no such remedy is in sight for them.
So what can you do if your naturalization application is stuck in the FBI name check black hole?
One option is to file a lawsuit against USCIS and the FBI for unreasonably delaying the processing of your case. This lawsuit, known as a mandamus action, enables plaintiffs to request the court to order USCIS and the FBI to do their jobs by adjudicating the case, or in the alternative, conduct a new naturalization hearing before the judge.
Immigrants who have been waiting for years for their application to be processed have been filing such suits in federal courts around the country, generally with success.
These lawsuits for delayed naturalization adjudications are based on INA § 336(b) (8 U.S.C. § 1447(b) ), which requires the government to make a determination on naturalization applications within 120 days of the “examination.”
If the application is not adjudicated 120 days after the “examination is conducted,” under INA § 336(b) an applicant may file a petition in district court seeking judicial adjudication of the application (i.e. the court holds its own naturalization hearing) or return it to USCIS with an order to finish processing it in a timely manner. [Note: With this latter option, you are not asking the court to approve your case. Rather, you are asking the court to compel USCIS to complete processing of your case.]
The hurdle to getting these cases into court centers on the question of whether the FBI name check is considered part of the “examination” so as to provide the court with jurisdiction to hear the mandamus action.
The government argues that the “examination” encompasses the entire process of gathering information about an applicant, including the completion of the FBI check, explains AILF. Thus, the government says, if the FBI check still is pending, the 120-day clock has not started ticking.
The plaintiffs, however, argue the 120-day period runs from the date of the naturalization interview.
Across the country, the courts are agreeing with the plaintiffs that jurisdiction exists even if the name check is not complete. A few holdouts remain, though, so it is important to know the status of the law in your jurisdiction before filing a case.
As to the remedy granted to plaintiffs, most courts have been choosing to remand applications to USCIS for decisions within a specified time frame rather than to conduct naturalization hearings.
As these mandamus lawsuits have become more and more popular and effective, USCIS is coming up with new policies designed to thwart prospective plaintiffs.
For example, in April 25, 2006, the USCIS announced it will schedule naturalization interviews only after the FBI name check has also cleared, thereby avoiding the triggering of the 120-day clock that has served as the basis for the lawsuits.
In addition, in the early days, when a mandamus lawsuit was filed, USCIS would react by requesting the FBI to expedite the name check for processing. On February 20, 2007, however, USCIS announced that it will no longer make expedite requests based merely on filing a lawsuit.
AILF says the extent to which this new policy affects mandamus actions is still unclear. It says practitioners continue to report that the government is mooting mandamus actions by taking the action requested in the complaint; other practitioners, however, report that the U.S. Attorneys are defending the government more aggressively than in the past.
Winning plaintiffs can seek attorney’s fees and costs for pursuing their mandamus actions in federal courts under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d) and 5 U.S.C. § 504 et seq. The courts, though, will only award attorney’s fees when there has been some sort of court order demonstrating that the plaintiff was the “prevailing party.”
A prevailing party can be established, for example, by a judgment in the plaintiff’s favor, or perhaps a settlement agreement or consent decree approved by the court.
If the government, however, takes the action prior to and in the absence of a court order, attorney’s fees are not recoverable.
For more on EAJA fees, see AILF’s discussion here.