Opinion
Civil Action No. 07-cv-00079-MSK-.
February 26, 2008
ORDER
BEFORE THE COURT are the Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction (#8), and the parties' motions (#15, #16) for judgment based upon stipulated facts (#14).
In this case, the Plaintiffs filed I-130 and I-485 applications for the purpose of obtaining a permanent residence visa, colloquially known as a "green card," for Mr. Jones, who is a citizen of the United Kingdom. The parties stipulated last August that the United States Citizenship and Immigration Services conducts three types of security checks for an I-485 application: (1) a fingerprint check; (2) an Interagency Border Inspection System (IBIS) check; and (3) an FBI name check. Of these three checks, they stipulated that the first two have been completed for Mr. Jones, and all that remains to be completed is the FBI name check.
Earlier this month, Michael Aytes, the Associate Director of Domestic Operations with the USCIS, issued a Policy Memorandum, 2008 WL 413952 (Feb. 4, 2008 INS) (copy attached), which states in relevant part:
A definitive FBI fingerprint check and the IBIS check must be obtained and resolved before an Application for Adjustment of Status (I-485) . . . is approved. USCIS will continue to initiate FBI name checks when those applications are received. Where the application is otherwise approvable and the FBI name check request has been pending for more than 180 days, the adjudicator shall approve the I-485 . . . and proceed with card issuance. The FBI has committed to providing FBI name check results within this time frame. . . .
If derogatory or adverse information is received from the FBI after the application is approved, USCIS will determine if rescission or removal proceedings are appropriate and warranted. . . .
The parties have not addressed this Policy Memorandum or its effect, if any, on the instant litigation.
IT IS THEREFORE ORDERED that on or before March 5, 2008, the parties shall advise the Court, in writing, of any effect this Policy Memorandum has on the case at bar.
U.S. Department of Homeland Security U.S. Citizenship and Immigration Services INS Policy and Procedural Memoranda INTEROFFICE MEMORANDUM
TO: FIELD LEADERSHIPSUBJECT: Revised National Security Adjudication and Reporting Requirements FROM:
Michael Aytes
Associate Director
Domestic Operations
HQ 70/23 70/28.1 February 4, 2008
Background
U.S. Citizenship and Immigration Services (USCIS) conducts background checks on all applicants, petitioners, and beneficiaries seeking immigration benefits. This is done both to enhance national security and to ensure the integrity of the immigration process. USCIS has previously mandated that FBI name checks be completed and resolved before any positive adjudication can proceed on certain form types. This memorandum modifies existing guidance for applications where statutory immigration provisions allow for the detention and removal of an alien who is the subject of actionable information that is received from the FBI or other law enforcement agencies after approval of the application.
USCIS is issuing revised guidance in response to recommendations of the DHS Office of Inspector General (OIG-06-06) regarding the need to align the agency's background and security check policies with those of U.S. Immigration and Customs Enforcement (ICE). The Background and Security Investigations in Proceedings Before Immigration Judges and the Board of Immigration Appeals regulations prevent immigration judges and the Board of Immigration Appeals (BIA) from granting benefits to aliens before DHS confirms that all background and security checks have been completed. See 8 C.F.R. § 1003.47(g); 8 C.F.R. § 1003.1(d)(6)(i). In the context of removal proceedings, ICE has determined that FBI fingerprint checks and Inter agency Border Inspection Services (IBIS) checks are the required security checks for purposes of the applicable regulations. In the unlikely event that FBI name checks reveal actionable information after the immigration judge grants an alien permanent resident status, DHS may detain and initiate removal proceedings against the permanent resident. See 8 U.S.C. § 1227; see also 8 U.S.C. § 1256 (allowing DHS to rescind an alien's adjustment of status).
Revised Guidance
A definitive FBI fingerprint check and the IBIS check must be obtained and resolved before an Application for Adjustment of Status (I-485), Application for Waiver of Ground of Inadmissihbility (I-601), Application for Status as a Temporary Resident Under Section 245A of the Immigration and Nationality Act (I-687), or Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of Public Law 99-603) (I-698) is approved. USCIS will continue to initiate FBI name checks when those applications are received. Where the application is otherwise approvable and the FBI name check, request has been pending for more than 180 days, the adjudicator shall approve the I-485, I-601, I-687, or I-698 and proceed with card issuance. The FBI has committed to providing FBI name check results within this timeframe.
There is no change in the requirement that FBI fingerprint check, IBIS check and FBI name check results be obtained and resolved prior to the adjudication of an Application for Naturalization (N-400).
Pending further guidance regarding post-audit reporting and tracking requirements and modifications to associated quality assurance procedures, applications approved pursuant to this memorandum shall be held at the adjudicating office. If derogatory or adverse information is received from the FBI after the application is approved, USCIS will determine if rescission or removal proceedings are appropriate and warranted.
Subject to the reporting requirements set forth in the February 16, 2007, memorandum titled "FBI Name Checks Policy and Process Clarification for Domestic Operations," an application or petition may be denied, dismissed, administratively closed, withdrawn, or referred to the Immigration Court at any time.
Questions regarding this memorandum should be directed through appropriate supervisory and operational channels. Local offices should work through their chain of command.
Distribution List:
Regional Directors
Service Center Directors
District Directors (except foreign)
Field Officer Directors (except foreign)
National Benefits Center Director
2008 WL 413952 (INS) END OF DOCUMENT