Suit expected over delays in citizenship

Daily Record and the Kansas City Daily News-Press, Jun 6, 2008 by Kelly Wiese

About three-dozen Muslim immigrants plan to file suit today in federal court alleging the U.S. government has illegally delayed their applications to become citizens.

Similar lawsuits have been popping up around the country. In this case, attorney Jim Hacking represents 33 plaintiffs, all legal residents, and is seeking to have the suit certified as a class action, covering all who have experienced delays of more than 180 days through the St. Louis immigration office.

"Plaintiffs are deprived of the substantial and unique rights and duties of U.S. citizenship, including the right to vote, to hold public office, to travel on a U.S. passport and other benefits of citizenship," the lawsuit states.

Hacking, of the Hacking Law Practice in St. Louis, said his suit covers two types of people. More than half of the plaintiffs have completed the interview process and passed the citizenship test. The only thing holding them up, he alleges, is an FBI background check. A federal law says people are entitled to a decision on their citizenship application within 120 days of the interview and exam.

The remaining plaintiffs have asked to become citizens but still await the interview. Hacking said it appears the federal government changed the order of things, moving the background check ahead of the interview step to avoid the 120-day deadline. There is no set date by which the so-called "name check" must be finished.

Yet the lawsuit also alleges that another section of law requires the federal government to rule on various immigration matters, including for those seeking to become citizens, within 180 days of application.

Immigration attorney Jonathan Willmoth is not involved in this particular case but also has brought similar suits in the Kansas City area, mostly with success. He hasn't handled any, however, where the people are still waiting for their interviews. But he also said that seeking class action status is a good idea, as most cases are quite similar.

Willmoth, an associate at The McCrummen Immigration Law Group in North Kansas City, said that basically, the federal government has argued the name check is required, so there's a conflict with the 120-day time limit, and cases should be resolved in favor of national security.

"Courts by and large have said no, that's not right. There's a special order by Congress," he said.

A regional spokeswoman for the U.S. Citizenship and Immigration Services said she could not comment on the individual case, but discussed some of the issues raised.

Marilu Cabrera said, on average, the processing time from application to being granted or denied citizenship is eight to 12 months. She also said there have been some delays in getting the background checks completed, so now the agency does not interview people until that step is done. But she said the agency hopes to have many of those pending checks cleared within a few months.

"We do have some cases that are stuck in the FBI name check process," she said. "This has been going on for a while and certainly frustrating for those who are waiting for their citizenship. We are working with the FBI to resolve the problem of the delays. There's really absolutely nothing we can do without that background check cleared."

Plus, the lawsuit claims the federal government greatly altered and expanded what's required in the background check in 2002 without going through the proper rule-making process and allowing for public comment. He wants a federal judge to suspend the so-called "name check" until the federal agencies take those steps.

Willmoth agrees with Hacking and also has raised the issue of the expanded checks circumventing the rule-making process. But he said judges haven't been very receptive to that argument in his experience.

The suit also points to 2006 and 2007 reports by the ombudsman for the U.S. Citizenship and Immigration Services department that determined the FBI name checks "significantly delay" resolving applications, and the problem is getting worse. The ombudsman also found the checks did not appear to catch anyone who wouldn't already be flagged through other checks as problematic.

Damir Mujcinovic, 31, is among the plaintiffs in the case. He came to the United States from Bosnia in 2000 and applied to become a citizen in April 2006. He had his interview later that year and passed the citizenship tests. He lives in the St. Louis suburb of Affton with his wife and two sons, ages 5 and 2, and works as a truck driver. His wife, who is also originally from Bosnia, applied later than him to become a citizen and was approved in less than six months, he said.

"I don't know what's going on and why they're holding my case," he said. "We definitely have a right to be a citizen. We came here legally, long time ago, tried to work, to make a better life."