The Mocanu Namecheck Ruling

[Googler]

"Based on a review of the facts and bedrock principles of administrative agency law, the Court finds that USCIS’s name check requirement has
(1) never been authorized by Congress;
(2) is not mentioned or contemplated by any fair reading of the current USCIS regulations; and
(3) may not, without USCIS initiating notice and comment procedures, be used to delay action on Plaintiffs petitions..."

http://www.bibdaily.com/pdfs/Mocanu%202-8-08.pdf

What a fabulous ruling this is.

One question for Lazycis:

# (3) actually reads "(3) may not, without USCIS initiating notice and comment procedures, be used to delay action on Plaintiffs petitions for naturalization, particularly because Plaintiffs have already undergone a name check in order to achieve LPR status and will clear the “fingerprint check” described in the Memorandum of January 25, 2008.10 The fingerprint check will show whether an LPR who is applying for naturalization has had any contact with the criminal justice system that would warrant denial of the petition."

As far as I can tell even (1) and (2) only apply to Naturalization applicants.

So the question of the hour is: are (1) and (2) true for AOS cases? I am asking this question because to argue a case for compelling recapture you need an AOS version of Baylson's ruling + the Galvez-Howerton decision (http://immigrationvoice.org/forum/showpost.php?p=223315&postcount=121). Only then can you say that there was affirmative misconduct in 2003-2004, and hence compel recapture.

[lazycis]

What a fabulous ruling this is.

One question for Lazycis:

# (3) actually reads "(3) may not, without USCIS initiating notice and comment procedures, be used to delay action on Plaintiffs petitions for naturalization, particularly because Plaintiffs have already undergone a name check in order to achieve LPR status and will clear the “fingerprint check” described in the Memorandum of January 25, 2008.10 The fingerprint check will show whether an LPR who is applying for naturalization has had any contact with the criminal justice system that would warrant denial of the petition."

As far as I can tell even (1) and (2) only apply to Naturalization applicants.

So the question of the hour is: are (1) and (2) true for AOS cases? I am asking this question because to argue a case for compelling recapture you need an AOS version of Baylson's ruling + the Galvez-Howerton decision (http://immigrationvoice.org/forum/showpost.php?p=223315&postcount=121). Only then can you say that there was affirmative misconduct in 2003-2004, and hence compel recapture.

Great ruling. The analysis is totally applicable to AOS. Moreover, the government admitted that it was wrong in recent memo.

"In the context of removal proceedings, ICE has determined that FBI fingerprint checks and Interagency Border Inspection Services (IBIS) checks are the required checks for purposes of the applicable regulations."

Wait a minute, isn't immigration judge able to grant AOS in removal proceedings? It means that the DHS acknowledges that it wrongfully interpreted regulations for all these years and that name check is not required by law (at least for AOS) as we were saying all along!

I love also this part: "in the unlikely event that FBI name checks reveal actionable information".

As judge Baylson pointed out, "name check" is nowhere to found in laws and regs.

[lazycis]

Violation of regulations is also affirmative misconduct.
Here is an extract from my brief

8 CFR § 103.2(b)(18), titled “Withholding adjudication”:
“A district director may authorize withholding adjudication of a visa petition or other application if the district director determines that an investigation has been undertaken involving a matter relating to eligibility or the exercise of discretion, where applicable, in connection with the application or petition, and that the disclosure of information to the applicant or petitioner in connection with the adjudication of the application or petition would prejudice the ongoing investigation.
If an investigation has been undertaken and has not been completed within one year of its inception, the district director shall review the matter and determine whether adjudication of the petition or application should be held in abeyance for six months or until the investigation is completed, whichever comes sooner. If, after six months of the district director’s determination, the investigation has not been completed, the matter shall be reviewed again by the district director and, if he/she concludes that more time is needed to complete the investigation, adjudication may be held in abeyance for up to another six months. If the investigation is not completed at the end of that time, the matter shall be referred to the regional commissioner, who may authorize that adjudication be held in abeyance for another six months. Thereafter, if the Associate Commissioner, Examinations, with the concurrence of the Associate Commissioner, Enforcement, determines it is necessary to continue to withhold adjudication pending completion of the investigation, he/she shall review that determination every six months.”

The legal alien’s application has been pending for over 2.5 years at the time of filing his complaint with the District Court. So, according to the requirements of 8 CFR § 103.2(b)(18), his application should have been reviewed twice by the USCIS district director (at 1 and 1.5 year marks), once by the USCIS regional commissioner (at 2 year mark) and once by the Associate Commissioner, Examinations, with the concurrence of the Associate Commissioner, Enforcement. There is no evidence on record that these procedures have been followed. Therefore, the USCIS have violated the Federal regulations and “unlawfully withheld” adjudication of the legal alien’s application. Furthermore, 8 CFR § 103.2(b)(18) is not part of the Subchapter II of the Chapter 12 of the INA, therefore jurisdictional bar of § 242(a)(2)(B)(ii) does not preclude review of the withholding of adjudication.

[Googler]

Great ruling. The analysis is totally applicable to AOS. Moreover, the government admitted that it was wrong in recent memo.

"In the context of removal proceedings, ICE has determined that FBI fingerprint checks and Interagency Border Inspection Services (IBIS) checks are the required checks for purposes of the applicable regulations."

Wait a minute, isn't immigration judge able to grant AOS in removal proceedings? It means that the DHS acknowledges that it wrongfully interpreted regulations for all these years and that name check is not required by law (at least for AOS) as we were saying all along!

I love also this part: "in the unlikely event that FBI name checks reveal actionable information".

As judge Baylson pointed out, "name check" is nowhere to found in laws and regs.

Good point about the recent memo -- happily there are multiple pdfs of it floating around so they can't make that language disappear -- and and immigration judge granting AOS. Those two points should do.

About "name check" nowhere found in laws -- i.e no language in some obscure subsection -- I just want to make sure that the interpretation is ironclad for AOS, we know it is for naturalization.

Yep, I *love* the "unlikely event" part.

[Googler]

Btw, apparently the law firm that argued the case for Mocanu and the others was: Orlow, Kaplan and Hohenstein (http://www.orlow.com/index.htm).

Wonder whether it is worth initiating a conversation about the validity of the legal argument for recapture (Mocanu + Aytes memo + Galvez-Howerton) with them -- they certainly know enough about the details of the name check process; they might need some more details about the 2003-2004 lost EB greencards, but I'd say they are pretty well prepped for all the other details.