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FBI namecheck delays and Writ of Mandamus Delays in FBI namecheck during 485 processing and legal options of filing Writ of Mandamus in court to get namecheck cleared.

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  #1 (permalink)  
Old 07-24-2007, 09:59 PM
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Exclamation Reference Only Thread: Name Check Basic Info Documents

Moderators,

Please make this thread sticky. We should use this thread to gather basic source documents on the Name Check process. Please do not use this thread for debate and discussion.

The least we can do is understand how the process works. I have grouped the documents by source. Note that what the FBI says doesn't quite jell with what the Ombudsman's office says about processing times. I have put in a question to the Ombudsman's office about how the FBI's stats sync up with the stats in the 2007 Ombudsmans report.

************************************************** **

FBI
Garrity Testimony Feb 2004
http://www.fbi.gov/congress/congress...rity022504.htm

Cannon Affidavit March 2006 (Abatani case)
http://bibdaily.com/pdfs/Cannon%20FB...me%20check.pdf

Cannon Declaration Feb 2006 ( Trujillo case; provides details on delays in even getting to the application)
http://immigrationportal.com/attachm...3&d=1179435102

FBI FAQ
http://www.fbi.gov/page2/nationalnamecheck.htm


USCIS

USCIS Fact Sheet April 2006
http://www.uscis.gov/files/pressrele...ecks_42506.pdf

Aytes Dec 2006 Memo
http://www.cyrusmehta.com/related/Ay...ame_Checks.pdf

Aytes No Expedite for Mandamus Memo, Feb 20 2007
http://www.ailf.org/lac/lac_mandamus_USCISrelease.pdf

Ombudsman’s Report 2007 (see Section F)
http://www.dhs.gov/xlibrary/assets/C...eport_2007.pdf

USCIS Transformation Plan, Mar 2007 (read pgs 16-17 and 47-48 which give clues about how requests are generated and results tracked at USCIS)
http://www.uscis.gov/files/nativedoc...nOps_Mar07.pdf

DHS

DHS OIG Report on Security Checks (Nov 2005)
http://www.dhs.gov/xoig/assets/mgmtr...6-06_Nov05.pdf


Toxsci's Excellent FAQ

http://www.immigrationportal.com/att...3&d=1150135396

Last edited by Googler; 07-27-2007 at 03:11 AM.
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Old 07-26-2007, 03:37 PM
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Great info, Googler. Thank you so much for researching this. One note---the link to Ombudsman's Report is wrong. Thanks again!
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Old 07-27-2007, 03:12 AM
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Quote:
Originally Posted by v7461558
Great info, Googler. Thank you so much for researching this. One note---the link to Ombudsman's Report is wrong. Thanks again!
Oops! Cut and paste error, fixed now. Thanks for pointing that out.
Glad someone finds this useful.
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Old 09-10-2007, 07:23 PM
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Expanding the scope of this thread to include new Mandamus rulings that contain in depth discussion of at least one of the following issues:

(1) Facts on the Name Check Process

(2) What is An Unreasonable Delay

This August 2007 ruling in Liu v. Chertoff (Oregon District Court) has a fabulous discussion of (1) and (2) incl Congress, USCIS and FBI's normative expectations about processing times for I-485 applications.

http://bibdaily.com/pdfs/Liu%208-29-07.pdf

The entire decision is worth reading, but if you want to read just the unreasonable delay part, skip to page 7.
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Old 10-09-2007, 01:28 PM
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Default 815 days for name check is unreasonable by any standard

http://boards.immigrationportal.com/...ostcount=13042
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Old 10-18-2007, 11:26 PM
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Default Great decision on I-485 Wom

This decision is one of the best I've seen (and I've seen a lot of them )

Dong v. Chertoff (see court order), 2007 WL 2601107 N.D.Cal. Sep 06, 2007
http://immigrationportal.com/attachm...6&d=1189865279
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Old 10-19-2007, 05:05 PM
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See pdf link below. Not clear yet whether this is part of yet another Cannon Declaration, will add that info once lazycis gives us the cite information.

But this document is the most detailed account of the name check process I have seen so far. And absolutely MUST read document.

Quote:
Originally Posted by lazycis View Post
OK, follow the link to get detailed information about the FBI/USCIS name check.

http://immigrationvoice.org/media/fo...NNCP_part1.pdf
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Old 11-23-2007, 09:29 AM
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Default Amicus briefs in I-485 WOM appeals

Amicus brief filed in the 1st Circuit appeal by AILF.
The brief discusses in details three major questions:

1) why the USCIS has a duty to adjudicate any application properly filed with them
2) why 8 USC 1252(a)(2)(B)(ii) does not bar jurisdiction in AOS mandamus cases
3) why the duty to adjudicate does not depend on a specific statutory or regulatory timeframe.

http://boards.immigrationportal.com/...9&d=1195639525

Amicus brief filed in the 11th Circuit appeal by AILF. Discusses the same questions, a good reading.

http://boards.immigrationportal.com/...8&d=1190059659
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Old 11-23-2007, 09:50 AM
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Quote:
Originally Posted by lazycis View Post
Amicus brief filed in the 1st Circuit appeal by AILF.
The brief discusses in details three major questions:

1) why the USCIS has a duty to adjudicate any application properly filed with them
2) why 8 USC 1252(a)(2)(B)(ii) does not bar jurisdiction in AOS mandamus cases
3) why the duty to adjudicate does not depend on a specific statutory or regulatory timeframe.

http://boards.immigrationportal.com/...9&d=1195639525

Amicus brief filed in the 11th Circuit appeal by AILF. Discusses the same questions, a good reading.

http://boards.immigrationportal.com/...8&d=1190059659
See this url for the efficiency status
http://www.whitehouse.gov/omb/expect...0018.2005.html

Also note the definition of what is not included in the backlog. Only cases that are current are considered backlog:
Applications for which no visa number is available are considered pending, but not part of the backlog. Cases are also removed from the backlog calculation if a Request For Evidence is pending for the regulatory period with the applicant, the applicant has requested a later appearance date, or the required name check is pending with the FBI.
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Old 11-23-2007, 12:04 PM
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Default How the INA (not the USCIS) defines backlog

http://www.law.cornell.edu/uscode/ht..._13_20_II.html

8 U.S.C. § 1572
Definitions
(1) Backlog
The term “backlog” means, with respect to an immigration benefit application, the period of time in excess of 180 days that such application has been pending before the Immigration and Naturalization Service.
(2) Immigration benefit application
The term “immigration benefit application” means any application or petition to confer, certify, change, adjust, or extend any status granted under the Immigration and Nationality Act [8 U.S.C. 1101 et seq.].
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Old 01-17-2008, 12:14 PM
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Default case of interest

Mocanu v Mueller, 1/14/2008, PAED
http://www.paed.uscourts.gov/documen...s/08D0052P.pdf

"The Court does not believe that either Congress or the agency has provided any definition of what is meant by a “full criminal background check,” but notes that the government has submitted a declaration from the FBI and has also provided a Memorandum as to the Status of FBI checks, which seem to indicate that the FBI check in these cases is much broader than just looking into whether an individual has a criminal record. Plaintiffs’ counsel do not dispute the accuracy of these declarations or contest their admissibility. Although careful security checks must be made for individuals seeking entry into the United States, and for applications for permanent legal residency, I fail to see why an individual who has achieved legal permanent residency must undergo a detailed security clearance in order to become a naturalized citizen.
Their risk to the security of the United States (if any) certainly does not change when they become a citizen. However, it is very relevant to conduct a criminal background check to determine whether they have had any law enforcement contacts during the period of time they have been legal permanent residents."

...

"For reasons stated at the hearing and in this Memorandum, I have reached a tentative conclusion that Defendant USCIS, overwhelmed by these applications, has adopted a strategy of favoring delay by litigation, instead of developing an orderly and transparent administrative resolution. Although this strategy is often evident in private party damages litigation, it is improper in these cases. Congress did not intend that the path to citizenship be conducted along a detoured and rocky road of litigation."
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Old 01-21-2008, 02:52 PM
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Default if you are a witness. you will get stuck at NC

As far as I understood from IV Forums and other online sources, if you are an informant or a witness in a case, your name is going to get a hit during the name check.
That means your name is not going to be in that 80% that clears in first few weeks. If you are not in that 80%, that means it may take 6 months or 6 years to clear.
I was the witness in a hit and run case and I have been waiting for 9 months for Pending NC now (although I have a unique last name even in my own country). I already tried everything that is suggested here except for WOM.
I cannot tell anyone not to help law enforcement officers during AOS. However, honor of helping victims have a price in this country, especially in situations like ours.

Gurus, please tell us that I am wrong. Tell us that humanity is always appreciated in this country where we are trying to immigrate.

Last edited by admesystems; 01-21-2008 at 02:55 PM.
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Old 01-28-2008, 09:52 AM
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Default USCIS is responsible for the name check delays

Aslam v. Mukasey, Order on Plaintiff Motion for Summary Judgment, Eastern District of Virginia, 1/25/2008. It's coming from the same court that issued Safadi decision.

http://boards.immigrationportal.com/...ostcount=15320

"The government concedes that the agency within the FBI responsible for name checks, the National Name Check Program Section ("NNCPS"), is understaffed. Approximately 3.3 million name checks are requested each year, resulting in 330,000 checks that proceed past the second stage. As of 2006, NNCPS only employed 103 personnel, 59 of which are dedicated to performing name checks for CIS. To meet its internal goals, the FBI has estimated that it needs 180 employees to process the CIS requests alone."

It's nice to see how the judge rebuffs USCIS arguments that they are trying to address the delay.

"The most recent data set on this issue speaks for its itself:
FBI name checks may be the single biggest obstacle to the timely and efficient delivery of immigration benefits. The problem of long pending FBI name check cases worsened during the reporting period. . . . While the percentages of long-pending cases compared to last year are similar, the absolute numbers have increased. There are now 93,358 more cases pending the name check than last year. Perhaps most disturbing, there are 31,144 FBI name check cases pending more than 33 months as compared to 21,570 last year - over a 44 percent increase in the number of cases pending more than 33 months. Department of Homeland Security, Citizenship and Immigration Services Ombudsman Annual Report 37 (June 11, 2007) (citing USCIS FBI Pending Name Check Aging Report).
...
There is no evidence of any efforts by CIS to take responsibility for and help remedy the existing name check process. Rather, CIS forwards the request to the FBI and then disclaims any accountability for a delay. This is the very definition of agency recalcitrance - an inability or unwillingness to fix an obvious problem that it helped to create."
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Old 02-08-2008, 06:08 PM
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For those who are still catching up see lazycis's post:

Quote:
Originally Posted by lazycis View Post
Finally, the decisive victory for all sufferers stuck in name check! The USCIS issued a memorandum to change its policy regarding name checks. The completion of FBI name check is no longer required before application for adjustment of status can be adjudicated!!! If FBI name check is not completed in 180 days, I-485 can be approved without it.

http://immigrationportal.com/attachm...0&d=1202337346
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Old 02-14-2008, 09:30 AM
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Default Final nail into the name check coffin

"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
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