A Dream Deferred

April 6, 2007 by Julia Harumi Mass, Ranjana Natarajan, and Cecillia D. Wang, Daily Journal

"This is my dream - to become a United States citizen, " said Alia Ahmadi, a 73-year-old grandmother who has been waiting for almost five years to become a U.S. citizen. Like thousands of others trapped in legal limbo, all she wants is to fulfill the American Dream. Ahmadi came to the United States from Afghanistan with her husband more than 20 years ago, sponsored by their grown son. She has six grown children - five U.S. citizens and one green card holder - and a baker's dozen of American grandchildren. For almost five years, Ahmadi has been occupied with one task: trying to become a U.S. citizen. "I am so thankful to the United States for giving us a place to live. We built our home here. I have all my children and grandchildren here. My husband is buried here. This is a democratic country, a free country and all I want is to become a citizen of this country, my home."

Ahmadi applied for citizenship in October 2002 and successfully passed her naturalization test and criminal background checks almost four years ago, in May 2003. Despite meeting all statutory requirements for naturalization, Ahmadi has had no response from U.S. Citizenship and Immigration Services, the government agency that handles citizenship. After countless visits, letters and telephone calls to CIS and letters to members of Congress, she has learned only that her naturalization application is stuck because of something called an FBI name check. She is mystified about the delay. "I feel really hopeless. I studied so hard. Everyone got their citizenship but me. I feel humiliated."

Alia Ahmadi is not alone. The American Civil Liberties Union and its co-counsel organizations, the Coalition on American-Islamic Relations and the Asian Law Caucus, filed lawsuits in California challenging years-long delays in the government's processing of naturalization applications (Zhang v. Gonzales, No. 07-CV-503-SBA (N.D. Cal.)). Our California offices alone have received hundreds of requests for assistance with naturalization delays, but the delay problem is a national crisis.

"I am a person of old age," Alia Ahmadi says. "All my life, I've stayed at home." Why, she asks, would the FBI have her name in its databases? The truth is, most likely they don't.

The FBI name check that has stymied so many would-be Americans is a relatively new phenomenon - implemented by CIS without formal promulgation of any regulation pursuant to public notice and comment. As government documents reveal, the name check is, in the implementation, a masterpiece of bureaucratic bumbling.

The name checks are nonsensical for two reasons. First, the database is constructed to be grossly overinclusive. The FBI National Name Check Program's Universal Index includes 92.7 million records. These records are broken into two subindexes: The first, which has been used for decades as part of the naturalization screening process without significant problems or delays, is an index of persons who have been the subject of FBI investigations; the second, which contains what are known as "reference" files, includes the names of victims, witnesses, associates or other people who come up in, but are not the subject of, FBI investigations. Decisions to include names in the reference index are made at the discretion of individual agents, apparently without uniform guidelines. In November 2002, CIS expanded background checks of naturalization applicants by requiring that they be run through the FBI's reference database as well as the database of actual investigation targets and suspects.

Second, the name check results in huge numbers of false positives because the FBI checks all possible spellings and configurations of an applicant's name. However, the name check database itself does not contain the detailed information that would be necessary to eliminate false positives. Therefore, in order to complete the check on a possible match, the FBI must excavate paper files housed all over the country, just to discover that the applicant is a different "Mary Smith" or "Mohammed Ali," or that the indexed individual was a victim or witness to a crime, or the landlord of the apartment building where the subject of an investigation lived.

Because the name check process is implemented to result in large numbers of false positives that require laborious and lengthy follow-up in paper files, the system is of dubious value. However, even more important, the purpose of the criminal background check in the naturalization process - identifying persons who may be a danger to the community or should be deported rather than granted citizenship - is actually undermined by a process that creates such needless delay. While thousands of "John Smiths" and "Maria Garcias" are being scrutinized against innocuous reference names in the Universal Index, people for whom the criminal background check was intended are waiting years for their background checks to be processed.

The name check system has resulted in extraordinary delays and an ever-increasing backlog. As of July 2006, CIS acknowledged a backlog of 1.1 million unprocessed naturalization applications, and reported that it was submitting approximately 27,000 new name check requests to the FBI per week. At that time, there were 13,000 name checks that had been pending for at least three-and-a-half years. For the name check process to be effective, it must either be more narrowly tailored to discovering problematic information about applicants or be conducted in a timely manner. As set forth in our lawsuit, the latter change is also required in order to comply with the law.

Unfortunately, this is not the first time the government has fallen down on its job of naturalizing eligible immigrants. In 1990, responding to an earlier period of mass delays, Congress enacted a statute giving applicants an alternate path to citizenship when the agency fails to act. Recognizing that the agency otherwise would have no incentive to process applications, Congress provided that a district court can adjudicate a naturalization application if the agency has not done so within 120 days of the preliminary examination. Since the implementation of the FBI name check, the delay statute once again has become the last resort of thousands of immigrants who have been forced to undertake the expensive task of suing for a response to their applications. Although the agency initially responded to such lawsuits by expediting cases, since last year it has decided to dig in its heels instead. Now, rather than clearing up the backlogs, CIS has adopted a new policy of refusing to expedite cases even if lawsuits are filed. The FBI has stated publicly that it will refuse to respond to inquiries about delays from applicants or even members of Congress. In addition, CIS's administrative backlogs are increasing every day because both the CIS and FBI have refused to impose any deadline on the completion of name checks. Instead of setting reasonable deadlines, the agencies are insisting that they should have as much time as they want to finish name checks, even when their years-long delays are unreasonable by any standard. The government has made the excuse that its delays are in the interest of national security, but has failed to explain how delay in investigating potential risks makes us safe. Nor has the government been able to point to a single case in which the FBI name check has uncovered adverse information that was not already divulged through the fingerprint check and criminal database check that are done in each case in addition to the name check.

Making people wait for years and years to become U.S. citizens has real and disastrous consequences for the well being of the applicants and our society. Some would-be citizens are not able to sponsor and bring their spouses, children or elderly parents to live with them in the United States, while others cannot qualify for federal loans for home mortgages, college education or small businesses. All of these would-be citizens, regardless of their profession or their political ilk, are deprived of the most satisfying and fundamental act of our democratic society - voting. Immigrants who look to America as a beacon of democracy have found the reality to be wanting in this basic regard.

If, as the government claims, the FBI name checks are necessary for national security, then the government should conduct those checks expeditiously and get to the bottom of any true risks. Our national security can't wait. And neither can the immigrants who have worked so hard to become citizens. As Alia Ahmadi's daughter - herself a mother of two - confided, "My mom and dad originally applied for citizenship together. My dad got it, but he died only a short time afterwards. She's old, and I'm afraid - I want my mom to have the time to enjoy being a U.S. citizen and to feel that she is a part of this country."

Alia Ahmadi and so many other longtime U.S. residents, who have been waiting for their hard-earned citizenship, deserve no less than a government that follows the law.
     
Julia Harumi Mass is a staff attorney at the American Civil Liberties Union of Northern California. Ranjana Natarajan is a staff attorney at the ACLU of Southern California. Cecillia D. Wang is a senior staff attorney with the National ACLU Immigrants' Rights Project.