Eldeeb v. Chertoff

• Decision Date: 30 July 2007
• Docket Number: No. 8:07-cv-236-T-17EAJ.,8:07-cv-236-T-17EAJ.
• Parties: Mohammad ELDEEB, Plaintiff, v. Michael CHERTOFF, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

619 F.Supp.2d 1190

Mohammad ELDEEB, Plaintiff, v. Michael CHERTOFF, et al., Defendants.

No. 8:07-cv-236-T-17EAJ.

United States District Court, M.D. Florida, Tampa Division.

July 30, 2007.

COPYRIGHT MATERIAL OMITTED

Gregory Romanovsky, Law Office of Boris B. Maiden, Brookline, MA, Mayra L. Calo, Ovink & Calo LLP, Tampa, FL, for Plaintiff.

Javier M. Guzman, U.S. Attorney's Office, Tampa, FL, for Defendants.

ORDER ON MOTION TO DISMISS

ELIZABETH A. KOVACHEVICH, District Judge.

This cause comes before this Court on a motion to dismiss and incorporated memorandum in support filed by Defendants, Michael Chertoff, et al., (Docket No. 10), a memorandum in opposition filed by Plaintiff, Mohammad Eldeeb ("Eldeeb") (Docket No. 11), and a reply brief in support of motion to dismiss filed by Defendants, (Docket No. 16).

BACKGROUND

The Parties

Plaintiff Eldeeb is a citizen of Egypt. Sometime prior to July 22, 2003, Eldeeb married a United States citizen. On July 22, 2003, Plaintiff filed a form I-485 Application to Adjust Status ("I-485") to that of a lawful permanent resident, based on his marriage to a United States citizen. Four years later his application is still pending. In order to expedite the adjudication of his application, Eldeeb filed a complaint for a writ in the nature of mandamus with this Court.

The first named defendant is Michael Chertoff ("Chertoff"), Secretary of The Department of Homeland Security ("DHS"). Chertoff is generally charged with supervisory authority over all operations of the DHS. The DHS is charged generally with enforcement of the Immigration and Nationality Act ("INA"), and specifically with adjudication of I-485 applications such as the one in this action. The second named defendant is Emilio Gonzalez ("Gonzalez"), Director, United States Citizenship and Immigration Services ("CIS"). Gonzalez is generally charged with supervisory authority over all operations of the CIS. CIS is an agency within the DHS to whom adjudication of I-485 applications has been delegated. The third named defendant is Andrea Quarantillo ("Quarantillo"), District Director, United States Citizenship and Immigration Services. Quarantillo is generally charged with supervisory authority over all operations of the CIS Newark District Office, where Eldeeb's I-485 application is pending. The fourth named party is Robert Mueller ("Mueller"), Director, Federal Bureau of Investigation ("FBI"). Mueller is generally charged with supervisory authority over all operations of the FBI, and, specifically, with performing Name Checks on all I-485 applicants. It is this Name Check that is delaying adjudication of Eldeeb's application. All defendants are sued in their official capacity only.

I-485 Applications

The CIS conducts numerous criminal and national security checks on I-485 applicants, and, pursuant to CIS policy, all applicants must pass all required security checks before their applications can be adjudicated. Once CIS receives an I-485 application, a file is opened and an electronic record for the applicant is created. The application then awaits further processing based on chronological order, according to the date of receipt. Included in the further processing of these applications is: 1) an Interagency Border Inspection System ("IBIS") name check; 2) an FBI fingerprint check; and 3) an FBI Name Check.

According to CIS, IBIS is a "multi-agency effort with a central system that combines information from multiple agencies, databases and system interfaces to compile data relating to national security risks, public safety issues, and other law enforcement systems." (Docket. No. 16, Exhibit 1, p. 9). Results of IBIS checks are usually available immediately, but the IBIS check is not deemed completed until all "eligibility issues arising from the initial system response are resolved." Id.

The FBI fingerprint check "generally provides information related to criminal background within the United States." Id. Typically, the FBI forwards fingerprint check results to CIS with 24-48 hours of receipt. Id. Roughly 90 percent of fingerprint checks yield no record or match with the applicant. Id.

The FBI Name Check is "totally different from the FBI fingerprint check." Id. The records checked include a variety of sources, and initial responses to this check generally take about two weeks. Id. Per Michael Cannon, Section Chief of the FBI's National Name Check Program, historically, approximately 68 percent of name checks submitted by CIS are electronically checked and returned within 48-72 hours as having "no record." (Docket. No. 10, Exhibit 1, p5). Remaining Name Check requests require additional, manual review. Id. Typically, within 30-60 days an additional 22 percent are returned as having "no record." Id. Of the remaining 10 percent (that have not been returned within 60 days), FBI records must be retrieved and reviewed manually. Id. Ultimately, less than one percent of CIS' requests are identified with a file containing possible derogatory information. Id. (emphasis added). According to the CIS, in about 80 percent of the cases, no match is found. (Docket. No. 16, Exhibit 1, p9). Of the remaining 20 percent, most are resolved within six months. Id. "Less than one percent of cases subject to a name check remain pending longer than six months." Id. "Some of the cases involve complex, highly sensitive information and cannot be resolved quickly." Id. An FBI Name Check is not deemed complete, even if the FBI has returned initial results to CIS, until full information is obtained, and eligibility issues arising from it are resolved. Id.

The FBI processes Name Checks chronologically, based on the date the request is forwarded. Id. at 4. CIS regularly inquires about the status of pending Name Checks, in order to see if the FBI has sent a response. Id. Such responses include "no record," "positive response" etc. Id. The responses do not provide CIS with any indication "as to what information the FBI may have relating to a particular alien, whether an FBI investigation into the particular alien has been undertaken, or whether there are national security concerns relating to that alien." Id.

Some FBI Name Check requests can be expedited. Id. Under CIS' policy, this can be done when an applicant meets one of four criteria: 1) military deployment; 2) age-out cases not covered by the Child Protection Act and applications affected by sunset provisions; 3) significant and compelling reasons, such as critical medical conditions; and 4) loss of social security benefits or other subsistence at the discretion of the CIS director. Id. Prior to approximately February 20, 2007, a pending mandamus action in federal court, such as the instant action, was also included as a criteria for expediting an FBI Name Check. On or about February 20, 2007, that criteria was removed from the list. Id. at 11.

The entire process, for most applicants, proceeds forward without incident. Id. at 7. Indeed, CIS' website, as of June 15, 2007, stated that it was processing I-485 applications with an application date of December 14, 2006. Given that results of IBIS checks are usually available immediately, FBI fingerprint checks are usually returned within 24-48 hours with 90 percent "no hits," and 90 percent of FBI Name Checks are completed within 60 days, this prediction seems reasonable for approximately 90 percent of applicants. However, due to the volume of requests, and the need for thorough screening, "some delays are inevitable." Id. at 8. "Resolving pending issues is time-consuming and labor-intensive; some cases take months or even several years to resolve." Id. (emphasis added).

Eldeeb's I-485 Application

CIS received Eldeeb's I-485 application on July 21, 2003. CIS created an internal file and on July 30, 2003, initiated an IBIS and other security checks. Id. at 5. The IBIS check showed a "hit" for Eldeeb as a "possibly excludable alien smuggler." Id. CIS conducted further investigation, which included contacting the specific Immigration and Customs Enforcement ("ICE") agent listed as the contact person for any inquiries about the hit. Id. This agent no longer worked for ICE at the time of inquiry, which required further investigation and delay. Id. CIS eventually determined this hit to be false, and then requested a Name Check from the FBI on June 8, 2004, nearly a year after Eldeeb filed the application. Id. CIS also scheduled an interview of Eldeeb and his wife for August 9, 2004. Id. At the interview, CIS informed Eldeeb that his application was awaiting a fingerprint check and security check. Id. Pursuant to its procedures, CIS has performed periodic inquiries about the status of Eldeeb's Name Check. The most recent inquiry was performed on June 20, 2007. Id. As of that date, the status of Eldeeb's Name Check was "pending." Id. Adjudication of Eldeeb's application must wait for the results of the FBI Name Check, and resolution of any issues that may come with those results. Id. His application cannot be expedited because Eldeeb does not meet any of the four criteria required to request expedited processing. Id.

The Delay

The IBIS check appears to have been resolved and, thus, completed to CIS' satisfaction. The fingerprint check is not mentioned in the record, and, by inference, is not likely holding up Eldeeb's I-485 application. Aside from the Name Check, CIS states that all other national security background checks have been completed. Id. at 5. It appears that a satisfactory "no hit" Name Check result, or a Name Check result that requires further CIS investigation, is the only thing preventing final processing and adjudication of Eldeeb's application.

Michael Cannon, Section Chief of FBI's Name Check Program, offers some insight as to the workload under which his section is operating. The FBI regularly performs FBI Name Checks for more then seventy outside agencies, in addition to serving its own counterintelligence,...