On May 18, 2016 thirteen Muslim plaintiffs sued United States Citizenship and Immigration Services pursuant to 8 U.S.C. Section 1447(b) and the Administrative Procedures Act (“APA”) for significant delays in the adjudication of each plaintiff’s application for citizenship (Form N-400). The government classified each of these applications as presenting a threat to national security pursuant to the Controlled Application Review and Resolution Program (“CARRP”). Although Congress has plenary power over immigration law, including citizenship and naturalization, CARRP was not approved by an Act of Congress and is not law. Instead, CARRP is a program established by the executive branch which uses a very expansive definition of a threat to national security.
CARRP identifies national security concerns using government watch lists and offers no precise definition. In contrast, the Immigration and National Act (“INA”) bars applicants from naturalizing on national security grounds for reasons limited to those codified in 8 U.S.C. § 1424, including: if the applicant has advocated, is affiliated with any organization that advocates, or writes or distributes information that advocates “the overthrow by force or violence or other unconstitutional means of the Government of the United States,” the “duty, necessity, or propriety of the unlawful assaulting or killing of any officer . . . of the Government of the United States,” or “the unlawful damage, injury, or destruction of property.” The government did not identify any of the 13 plaintiffs as a security concern under any of these grounds. Therefore, the CARRP program’s classification of those who present national security concerns is arbitrary and capricious because it does not comport with the definition found in the INA.
Although the exact number of people subject to CARRP is unknown, only people from Muslim majority countries are subject. Between 2008 and 2012, more than 19,000 people were flagged in the program. USCIS did not notify any of the 13 named plaintiffs that they are national security concerns, or given reasons why they have been classified in this way, or given them an opportunity to respond to the supposed national security concerns.
Federal statute states that each application for an immigration benefit, including N-400 applications, should be completed within 180 days after the initial filing of the application. 8 U.S.C. Section 1571(b). In addition, the government must approve or deny an application within 120 days of the interview date. 8 C.F.R. Section 335.3.
In contrast, each of the plaintiffs in the lawsuit has applications pending for much longer than 180 days. USCIS has refused to interview 8 of the plaintiffs, despite all of their applications being filed in 2014 or 2015. Of the other 5 cases that have been interviewed, each of these cases has been pending much longer than 120 days, the longest has been pending since April 14, 2014, post interview. Each of the plaintiffs meets all of the statutory requirements for naturalization.
The CARRP program is unconstitutional because it violates due process and it violates the Equal Protection clause of the constitution because it holds applicants from Muslim majority countries to a higher standard than all other applicants. It is inconsistent with the INA because it holds applications in indefinite limbo with no end in sight. In short, the CARRP program should be abolished and the government should immediately adjudicate all applicants who are subject to the program.
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