Naturalization loophole is hit

Immigrants can sue for citizenship
Sara A. Carter, Staff Writer

A loophole in the U.S. immigration system is allowing some citizenship applicants to go forward in the naturalization process and receive immigration benefits without complete FBI criminal background checks, according to government documents obtained by the The Sun's sister newspaper, the Inland Valley Daily Bulletin in Ontario.

Applicants for citizenship through the California Service Processing Center in Laguna Niguel frequently are being interviewed for citizenship prior to immigration officials receiving the FBI checks, according to an internal document issued last month by U.S. Citizenship and Immigration Services, or USCIS. Under federal immigration law, USCIS must receive the FBI check before the interview.

If the interview happens first, applicants can sue for immigration benefits if 120 days pass and the agency has not made a decision on their application. Immigration benefits include citizenship, asylum, lawful permanent residency, employment authorization, refugee status, family and employment-related immigration, and foreign student authorization.

Nearly 1.5 million people last year could have sued for immigrant benefits via the loophole, according to information provided by the agency. USCIS processed 7.5 million applications for benefits in 2005 and granted them to about 6.5 million people. The number of applicants who actually sued for benefits was not available through USCIS, its parent agency, the Department of Homeland Security, or through the Department of Justice.

The number of those granted benefits who might also be public safety threats is anyone's guess, said Rosemary Jenks, the attorney representing Michael Maxwell, former director of the Office of Security and Investigations, a branch of USCIS.

If an FBI background check is not available by the time a citizenship lawsuit comes before immigration court, benefits are granted because the government didn't follow its own rules, Jenks said.

"It means the wrong people are getting the wrong benefits at the wrong time," said Maxwell, who testified in Congress recently about immigration procedures. "U.S. Citizenship and Immigration Services is violating their own laws and opening a doorway for potential terrorists and criminals to enter the country."

Lawsuits pending

The loophole now is being used by immigrant-advocacy groups.

Next week, the American-Arab Anti-Discrimination Committee will announce plans to make public the hundreds of lawsuits across the nation that the group helped coordinate against U.S. Citizenship and Immigration Services, a committee attorney said.

The organization, along with 40 attorneys representing approximately 20 clients each, will announce its plans to sue USCIS under the 120-day clause, said Lema Bashir, an attorney for the committee.

"Most of the delays we're seeing are looking at 10 months to four years," Bashir said. "Interestingly enough, some of the participants in our project are not Middle Eastern. If it is a national security reason (for the delays), then those reasons should be given. Since those reasons are not being given, we're assuming that that is not the reason, and these delays in citizenship are just backlogged delays."

An internal USCIS memo issued in March also outlines concerns the Department of Justice and the Office of Immigration and Litigation have with USCIS adjudicators violating regulations, and addresses the upcoming lawsuits and immigrants using the judicial system as a way of possibly circumventing FBI background checks.

"The Department of Justice is greatly concerned with the number of these actions that are pending," the memorandum states. "A concerted effort to file such cases in district court . . . is being championed by the American-Arab Anti-Discrimination Committee.

"(Department of Justice and Office of Immigration Litigation) believes that (Citizenship and Immigration Services) violates its own regulations . . . in holding interviews before checks are done, and that (Department of Justice) is left without a good argument to make when advocating these cases before district courts."

If the lawsuits are successful, hundreds of applicants would be granted immigrant benefits, and ultimately citizenship, without any knowledge of their backgrounds, Maxwell said.

Cynthia Magnuson, a spokeswoman for the Justice Department, said it had no comment on the memorandum or the pending litigation.

Procedures questioned

A 2003 internal audit conducted by the Justice Department and the then-Immigration and Naturalization Service noted that a known Middle Eastern terrorist associate was granted citizenship.

An audit document obtained by the Daily Bulletin stated that the man's background wasn't fully checked but that adjudicators at the Newark, N.J., naturalization office still granted him citizenship.

The Immigration and Naturalization Service which at the time was part of the Department of Homeland Security but yet to be renamed Citizenship and Immigration Services did not follow appropriate procedures in processing immigrants.

"The INS procedures should have detected and prevented the naturalization of an alien having known terrorist affiliations," the audit stated. "However, close scrutiny of these procedures disclosed several system deficiencies and weak controls that contributed to the inappropriate naturalization."

The investigation found that initial name checks performed by the FBI failed to disclose the immigrant's terrorist affiliations and that the district adjudication officer ignored a second database system for checking the applicant.

The audit further disclosed that "unresolved FBI name checks are routinely overridden by Newark District Adjudication Officers during the naturalization process."

Concerns in California

Documents obtained by the Daily Bulletin accuse the largest processing center for citizenship and immigration on the West Coast of the same types of violations.

The California Service Processing Center in Laguna Niguel, one of the four immigration service centers in the United States, is failing to meet the majority of its requirements, according to a USCIS letter. The service center covers a region including Arizona, Hawaii, Nevada and Guam.

The center does not conduct appropriate background checks and is accused of having a 100 percent failure rate in not recording the results of FBI name checks and fingerprints, said a San Francisco district office adjudicator whose name was redacted from the letter for fear of reprisal.

The San Francisco adjudicator aired his concerns in a letter to Lloyd Miner of the special investigations office of USCIS. Miner brought the letter to Maxwell, his director at the time. "Basically, the California Service Center employees ignore the FBI name check as being legally required before scheduling examinations by field officers," the letter states.

An FBI check for citizenship must confirm that the applicant does not have a criminal record, or confirm the opposite that the applicant does have a record.

Applicants also must also have two fingerprint cards for the purpose of conducting background checks.

Shawn Saucier, spokesman for Citizenship and Immigration Services, would not comment on Maxwell's allegations or the letter but said the allegations are being investigated by the U.S. Attorney General's Office.

"In the end, U.S. Citizenship and Immigration Services will not put the security of the United States at risk by approving an application for U.S. citizenship without the proper security and background checks being completed," Saucier said.

`Acceptable risk'

After learning of the San Francisco adjudicator's allegations, Maxwell said he immediately disclosed the loophole to Robert Divine, the acting deputy director of U.S. Citizenship and Immigration Services.

"When I warned senior leadership about this risk, they stated they were aware of the risk and deemed it acceptable," Maxwell said. "U.S. Citizenship and Immigration officials know that this vulnerability exists and that the immigration courts are granting benefits to applicants who have not been checked. I told my superiors that I don't think the American public is willing to accept this risk."

Angelica Alfonso-Royals, assistant director of communication for Citizenship and Immigration Services, said Divine could not comment on his conversation with Maxwell. She added that any allegations are being handled by the U.S. Attorney General's Office.

"A lot of these name checks come back clear," Alfonso-Royals said. "It wouldn't be fair to the applicant to not keep the applications moving. Again, we don't make the final decision on the case until we get the FBI name check."

But the courts do, Maxwell said.

Saucier, the USCIS spokesman, said the number of persons going through the court system is relatively small.

The department and the FBI are working to rectify any problem with delayed background checks, and Saucier insisted that decisions to legalize applicants lie solely with the courts, not with his agency.

This is where the system slips, Maxwell said.

"(USCIS) knows what they're doing is wrong," Maxwell added. "But they continue to do it because in the end they can always blame the courts.

"The system itself is so flawed, so skewed on behalf of the applicant, that it builds on its flaws," Maxwell said.