Yahoo! Yeehaw! Hurrah!
Within the past ten days, I learned of two positive changes to the law and procedure affecting immigration. These changes are logical and reasonable but they took years to take place. And I am thrilled to have a couple of extra tools to work with in my legal practice.
The most recent change took place on February 4th, 2008. The CIS announced a significant policy change in its FBI name check practice.
When a person applies for permanent residence or US citizenship, this person needs to be fingerprinted and have their biographic info sent to the FBI for security clearances. Sometimes this process took only a few days . . . and for the unfortunate, sometimes this process took years. The FBI didn’t allocate enough resources to complete the process in a timely manner and the CIS didn’t demand that the process take place in a timely manner. Applicants routinely filed and prevailed in lawsuits against the CIS for the delays in their cases, creating an unnecessary defensive burden on the CIS and the US Attorneys’ offices which represented the CIS in these lawsuits.
Meanwhile, the CIS refused to grant the permanent residence or naturalization application until the security clearance/name check procedure was completed. The argument allowing this delay was that it was necessary for national security.
The opposing argument was that it was better to allocate more resources to get the name checks done quickly so that a person who might pose a threat to our national security would not be living in the US for the years it took to get the name check procedure accomplished.
The new change to this practice is that now the CIS will adjudicate an application for permanent residence without a final clearance from the FBI when the name check has been pending for over 180 days. If the permanent residence application is approved and the name check is finally returned, raising some type of security concern, the CIS could rescind the original approval of the permanent residence. This will presumable pressure the FBI to complete the name checks in a reasonable time frame.
This is where I repeat, “Yahoo!” My clients no longer have to wait four years to get permanent residence just because someone else has a similar name as they do, a frequent cause for the delay.
Thank you, Michael Aytes, Associate Director of the CIS, and everyone else who worked on this policy change.
The second positive change is more obscure so bear with me — I am perhaps even more excited about this one.
At the end of December, 2007, President Bush signed a law revising the Freedom of Information Act known as FOIA. At its very simplest, this law allows people access to information about themselves held by the government subject to several exemptions. In my practice, my clients and I frequently need access to government held information, such as an immigration officer’s notes about why he or she denied my applicant’s application. I routinely need this type of information to appeal decisions; it is the main way immigration lawyers obtain ‘discovery’ or evidence.
If the US government improperly withholds information from an applicant, which it seems to regularly, the applicant can sue in federal court under the Freedom of Information Act. This is not new. For the past few years, though, the CIS has not been likely to turn over withheld documents easily, often choosing to dig in their heels and deny the documents, requiring the client to pay a great deal of attorney’s fees litigating the matter in federal court. Then poof, right before the substantive hearing in front of the federal court judge, the CIS would turn over the documents — which it should have turned over in the first place. In the most egregious cases, the applicant could have been deported while waiting for this information. To add insult to injury, when the CIS turned over the information before getting to the federal court judge, the CIS was rarely required to pay the applicant’s attorney’s fees despite being authorized to under the Freedom of Information Act.
I had such a case two years ago. My client paid about $20,000 in attorney’s fees for me to sue the government to turn over 45 pages of withheld information from his immigration records, all of which should have been turned over right away. After months of negotiations, the CIS finally relented and turned over everything we wanted. And my client’s application for attorney’s fees was denied because the CIS turned the information over right before a court order would have been issued granting my client relief.
Under the revisions to the law signed by Bush last December, the government is now required to pay reasonable attorney’s fees as long as the government changes its position (by turning over documents to the applicant). If the government is required to pay legal fees, then it seems likely that the government is less likely to withold documents required to be released under the Freedom on Information Act.
I am going to file a lawsuit under FOIA this week now that another client of mine has a chance to get her attorneys fees paid for. In this case, the government withheld 150 pages from her immigration file — and I am dead certain that some of those pages hold a missing piece of information crucial for her case. Until this law changed, she could not afford to get this information, effectively allowing the CIS to render improper decisions leading to her permanent removal from the US.
Yeehaw! She now gets a chance to have due process. The rest is up to me to handle.
Thank you, President Bush, for signing this new law.
Peace,
Elizabeth
