New Federal Court Decision Addresses Delays in Processing Citizenship Applications
September 27, 2007

As many applicants for US citizenship are aware, the delay in the processing of their applications can be infuriating. Many applicants find themselves waiting months, and even years to be scheduled for a naturalization oath ceremony after appearing at their local Citizenship and Immigration Services office for interview and successfully completing the requisite civics and English language tests. The most common reason for the delay: a pending FBI name/background check.

These delays are not limited to applicants with criminal or suspicious backgrounds. Grandmothers, clergymen and even active military officers have experienced significant delays in the processing of their applications because of pending name checks.

Some of these effected applicants are turning to the U.S. District Courts and filing federal lawsuits requesting the courts to decide their application or order the CIS to finally complete their processing and issue a decision. By and large, these lawsuits have been effective in prompting CIS to complete long pending name checks, and the issuance of final decisions on applications for citizenship.

Federal statute mandates that a decision on an Application for Naturalization be issued within 120 days of the applicant’s appearance for their interview and passing the required examination. While the language of the governing federal statute states that the waiting period is “the 120-day period after the date on which the examination is conducted”, federal courts in recent years have been presented with the question over the exact definition of “examination” (leave it to lawyers and judges to spar over the meaning of relatively simple words). In trying to fend off these lawsuits, attorneys for the government have frequently asserted the position that “examination” means completed examination – which includes the completed FBI name check. Thus, according to this position, the 120 day clock only starts to run after the FBI background check is complete.

Recently, the US Court of Appeals for the Fifth Circuit, which governs Louisiana, Mississippi and Texas, issued a definitive decision which could impact federal courts’ across the U.S. in their approach to this issue. Initially in June, 2007, a 3 judge panel in the case of Walji v. Gonzalez,. __ F.3d __, 2007, decided in favor of the government, declaring that the 120 day period begins after the FBI background check is complete. However, after a request to have the case reheard by the entire 5th Circuit court (en banc), the full court, just last week, reversed the panel’s previous decision and held that the 120 days should indeed begin after the applicant’s naturalization interview and ordered the issuance of a decision by CIS on the application at issue. The court cautioned, however, that CIS could avoid the issue entirely if it would wait to schedule applicants for their interviews until after the FBI name check is complete.

Indeed, this is how CIS offices across the U.S. are now proceeding. Not unexpectedly, some applicants for citizenship find themselves waiting many months and even years to have their interviews scheduled. Notwithstanding the approach employed by the Fifth Circuit above, applicants across the U.S. continue to seek a federal court remedy to extended delays in the processing of their naturalization applications even if they have yet to be interviewed. Oftentimes, the mere filing of the lawsuit is sometimes enough to push processing forward for long pending applications, even where applicants have yet to be scheduled for interview.

Copyright © 2007-2008, By Law Offices of Richard Hanus, Chicago, Illinois