Court Rebuffs Bid to Speed Citizenships to Allow Voting, By Mark Hamblett (NY Law Journal)

An attempt to force the FBI and immigration officials to clear a huge backlog of citizenship applications by legal residents in time for election day was rejected yesterday by a federal judge.

Southern District Judge Lawrence M. McKenna refused to grant a preliminary injunction sought by the Puerto Rican Legal Defense and Education Fund and the New York Legal Assistance Group.

In an action that claimed the FBI takes far too long to process the name checks that are a prerequisite to full citizenship, the groups also sought to certify two classes of tens of thousands of legal residents who want to vote in November.

Announcing his decision dismissing all claims from the bench, Judge McKenna said that Congress requires the FBI to conduct a full criminal background check for each applicant for citizenship but, "[i]t does not require it to do so in some specific period of time."

In Milanes v. Chertoff, 08 Civ. 2354, the plaintiffs said delays of up to two to three years impose other hardships on legal residents in addition to preventing them from voting, including leaving them ineligible for important benefits and jobs and restrictions on travel.

Cesar A. Perales, the president and general counsel of the Legal Defense and Education Fund, said after the decision that the loss was a tough one. But he also said the groups would continue to press their case with an appeal as he praised the name plaintiffs in the case for their courage.

"Our clients were told by many of their friends not to bring this action because it would make it less possible for them to become citizens themselves," Mr. Perales said. "We are very, very disappointed with the decision today, but we still believe we have a very good case."

Milanes was brought under the Administrative Procedure Act (APA) and the Immigration and Nationality Act (INA) as well as the Constitution's Due Process Clause.

The groups claimed a general failure to process the applications within a reasonable time in violation of the APA 5 U.S.C. §555(b). Under the INA §336(b), they claimed, the government was failing to process their applications within 120 days of their initial examination.

The FBI is required to conduct a background check on every applicant for citizenship and until the bureau checks fingerprints and a database for an administrative or criminal record, the U.S. Citizenship and Immigration Service (USCIS) will not schedule an examination of the applicant.

The plaintiffs sought to certify two classes. The first was for all permanent residents who have submitted or will submit applications for naturalization with the Citizenship and Immigration Service's New York office and whose applications have not been or will not be adjudicated within 180 days. The second was a subclass of people who have not been or will not be adjudicated within 120 days of their initial examination.

In all, the plaintiffs submitted five claims for relief and Judge McKenna rejected each one.

The government had argued in its motion to dismiss that Congress has plenary power in this area and has chosen not to impose the sixth-month deadline sought by the plaintiffs.

It would be one thing if the plaintiffs were suing to compel "discrete agency action," the government said, but instead they were seeking "a programmatic revision of USCIS's practices with respect to the statutory requirement that USCIS undertake a 'full criminal background check' and a 'personal investigation' of all naturalization applicants."

Judge McKenna agreed yesterday, saying, "The only agency action that can be compelled is action legally required."

The judge said the statutory requirement of a background check takes precedence over the regulation setting a time frame for processing applications.

Assistant U.S. Attorneys Robert William Yalen, Tomoko Onozawa and Kirti Vaidya Reddy said in their papers that the agency does not have a duty to act on applications before an FBI name check and "the FBI does not owe any duty to individuals whose name check it is running."

The government also argued that the plaintiffs' due process claim should be dismissed because "no constitutional liberty or property interest of plaintiffs has been denied."

Jane Greengold Stevens, the director of the Legal Assistance Group's special litigation unit, held out hope for an appeal to the U.S. Court of Appeals for the Second Circuit after yesterday's ruling.

"This decision is based on a technical legal issue that doesn't speak to the suffering" of people who have been waiting to become citizens, Ms. Stevens said. "The one thing in our favor is that [Judge McKenna] believes there is grounds for certifying a class" if the plaintiffs win on appeal.

Richard Slack, a partner at Weil Gotshal & Manges who worked on the case pro bono, said his firm was approached by the Legal Assistance Group and asked to offer its services.

He said the firm agreed to work on the case because "we learned that large numbers of legal immigrants . . . had been waiting, in some cases, for years" to have their applications processed.

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