חודש: פברואר 2010

Naturalization Security Checks—when the government does the wrong thing for the right reasons

As part of the naturalization process, all aspiring
candidates are required to provide their fingerprints for verification in the
law enforcement databases maintained by the Department of Homeland Security and
the Department of Justice, among others.
In addition, the applicant must have his name checked across several
lists to make sure no ‘hits’ reveal them to be identities or aliases of bad
guys.  With a thorough security check,
the DHS prevents bad guys from attaining the coveted ‘citizen’ status, along with
the protections they would receive under the United States Constitution.  One would believe that this is the type of
well-reasoned, well-supported explanation that would almost verge on being a truism.  It is something that one can hardly object to
these days.


So why is a little old lady threatening to go to Federal
court and naming the Attorney General, the Director of the Department of Homeland
Security, the Director of the Citizenship and Immigration Services, among
others as co-defendants in a federal lawsuit?  It just so happens that the lady
comes from the Middle East and bears a Middle Eastern name.


Tough luck, you might say.
Let her wait a bit longer while we make sure she is not a supporter of
terror activities.  You might be
surprised to learn that she understood the government’s position.  It would be understandable if her application
were somewhat delayed because of the rigorous name check and fingerprint
analyses that must be run.


But she never thought it would take eight years.


In eight years, the government had essentially bogged down her
application, denying her right to be considered for naturalization as a United
States citizen.  No prior record; her whole
family in the U.S., no history of raising a finger except to gauge the mood of
the next administration.  She had even
passed the English language and Civics/History test.  Countless inquiries deluged the Immigration
Services Officers.  They all came back
with the same words.  Words that became
an exasperating death knell for her hopes of ever being truly ‘American’:


“We are awaiting a security check.”


After unsuccessfully trying all of the lower levels of the
USCIS bureaucracy, we turned to our liaison contacts in the American
Immigration Lawyers Association, weighed in, trying to determine the reason
behind the inexplicable delay in the naturalization process.  The investigations ran dry, however, and were
smothered in “security check” responses.


Fortunately, when it comes to the
naturalization process, the Immigration Service does not necessarily have the
last word.  There is a section of the
U.S. Code which allows the Federal court to intervene and essentially divest
the Department of Homeland Security of its jurisdiction.  In other words, the court takes over the case
and has a hearing where the heads of the Justice Department, the DHS and the
USCIS are named as defendants and are called before the judge to justify the delay.


Now, if there is one thing an
agency is loathe to do is give up its power.
In a Petition for Naturalization, this is exactly what happens.  A Federal Judge is given the power to naturalize
the petitioner right then and then, if, in her or his judgment, the petitioner
has met the requirements for naturalization to United States citizenship.


The government knows this, and
rather than go through an embarrassing court procedure to justify what is
essentially unjustifiable, it will sit down and take a hard look at the “sticking
points” of the application.  By “sticking
points” I am referring to the TRUE reasons the application is being held up and
the PRETEXT used to hold it up.  While
the true reason may be inferred by the reader (and suffered by our client) the
pretext turned out to be that the USCIS could not obtain a clear set of
fingerprints.  That’s it.  During the past seven years of an old woman’s
life the only real problem was that her fingers, gnarled with age and decades
of toil, could not provide good prints for the USCIS’s fancy new prints machine.


The DHS stepped in and ordered
that new fingerprints be taken as soon as possible and, failing a good result,
that criminal background checks be run at every jurisdiction she had lived in
the United States.


We presented ourselves at the
USCIS field office with a mixture of annoyance and guarded optimism.  We expected some new security check stumbling
block.  We were in for a big surprise.  In a dramatic reversal of their
years-long miring in red tape of the naturalization application, our client was
told she had received final clearance to be naturalized.


On that same, sunny day, during a short
ceremony attended by the applicant and her son, who had driven her to the
appointment, our client was naturalized as a Citizen of the United States.


Abused and Battered Immigrants DO have a Choice

Her will was slowly, inexorably eroding to nothingness.  The insults. The
threats. The beatings.  The demeaning
tone of his demanding voice telling her she could walk out the door at any
time—and that Immigration would be waiting for her outside.  She could leave and forget about the child
she left behind in her home country.  A
child she had not seen for three years.  She was trapped.  No papers,
no hope, no escape.  He was a United
States Citizen.  He knew the phone number
of the immigration officers that could come in at any time and take her away to
be deported.  She could
picture the last three years of agony, toil, and humiliating sacrifice
withering away as she returned rejected, defeated, and penniless.


He had long ago taken
away her passport and her birth certificate.
He knew she couldn’t do anything without that.  He had promised to file her immigration
papers, but she knew now that it was just a lie.  Caged in a prison devoid of walls, she wailed
silently and unseen while the days and months became, what, three years


Every year, thousands of immigrants suffer mutely, victims
of unscrupulous spouses that take advantage of the immigrants’ nonexistent
position of power.  But appearances can
be deceiving.


In 1994, the Violence Against Women Act (VAWA) was passed
into law.  The intention of this piece of
legislation was to provide a way for abused immigrants to escape their
tormentors.  Normally, a family petition
needs just that—a petitioner—to request the benefit for the immigrant (also
known as the beneficiary).  The way the
Immigration and Nationality Act (INA) was structured at the time, only through
the active and willing participation of the petitioning spouse could an
immigrant obtain family based immigration benefits.  VAWA made it possible for the victim to file
a petition on her (or his) own behalf.  The form is I-360 and can be obtained from the USCIS website at http://www.uscis.gov.  Protection from deportation and counseling resources were made available as part
of the aid provided to the victims.  The
result was a sliver of hope shining in a pitch-dark tunnel.


While the VAWA made significant inroads toward correcting
the plight of millions of immigrants subjected to extreme cruelty or abuse, it
was far from a perfect fix.  Many
oversights in this important law were addressed in the amendments to the VAWA
(Violence Against Women Act of 2000).
Nicknamed the VAWA II, it fixed provisions that left abused immigrants unprotected
if they, among other situations, divorced the abuser before the filing of the
self petition.  It also provided renewed
funding for many support programs and permitted the adjustment to permanent
residents even if the victim had entered illegally.  It also lowered the standards that needed to
be met to show hardship if removed from the United States.


For the immigrant victim of a United States Citizen or Legal
Permanent Resident, the VAWA presents an opportunity to end the cycle of
violence and achieve a measure of social justice.  Help is available through the
National Domestic Violence Hotline on
1-800-799-7233 or 1-800-787-3224 [TDD]
for information about shelters,
mental health care, legal advice and other types of assistance, including
information about self-petitioning for immigration status.