USCIS Takes Biographic Data and Clandestine Programs to New Heights

On the anniversary of 9/11, how far has USCIS come in screening and protecting Americans from terrorism in our country?  Gone are the days of NSEERS registration, but USCIS isn’t ready to turn back to the old days either.

NEW CUSTOMER IDENTITY VERIFICATION AT FIELD OFFICES

On Monday, September 9, 2013, USCIS announced that it would deploy a new tool to confirm the identity of foreign nationals who appear for appointments at its field offices throughout the U.S.  In a release, it confirmed that the new Customer Identity Verification (CIV) tool will be implemented.

Customers will now submit biometric data, specifically fingerprints and photographs, when appearing at USCIS offices for interviews or to receive evidence of an immigration benefit.

The CIV tool will be phased in from September 9th through October 21st.  Some field offices have already reported minor delays due to the CIV tool being implemented.  The process for CIV, was explained:

After a customer arrives at a field office, clears security, and is called to the counter, we will electronically scan two fingerprints and take a picture to verify their identity. The process takes just a few minutes and applies only to customers who have an interview or receive evidence of an immigration benefit. People who come to our office for InfoPass appointments or to accompany a customer will not undergo this process. After we verify the customer’s identity, they can proceed to their interview or receive their document.

The CIV tool is connected to other government databases, including U.S. Visitor and Immigrant Status Indicator Technology’s (US-VISIT) Secondary Inspections Tools.  If foreign nationals weren’t prepared to give up their biographic data before, they must be willing and ready to do so now.

CONTROLLED APPLICATION REVIEW AND RESOLUTION PROGRAM (CARRP)

On another apparently more clandestine front, USCIS appears to be collaborating with the FBI in more ways than one.  A report released by the American Civil Liberties Union (ACLU) in August 2013 revealed a previously secret program which began in 2008, Controlled Application Review and Resolution Program (CARRP), carried out by USCIS to prevent certain foreign nationals, solely based on their race, nationality or religious activities, from receiving immigration benefits.

While the institutional screening of foreigners in the U.S. based on race and nationality by USCIS is no surprise to many immigration practitioners, CARRP appears to be a very aggressive “screening program.”  It provides no mechanism for aggrieved individuals notice or an opportunity to respond or refute any “national security concerns” that have negatively impacted their immigration cases.  According to the ACLU report, CARRP

Directs agency officers to delay and ultimately deny the immigration benefits applications of applicants it has blacklisted, all without even telling these individuals that they were labeled threats to our nation, let alone giving them an opportunity to respond to the allegations.

The report was completed after ACLU conducted extensive research on USCIS CARRP policy documents, memoranda, officer training manuals, and other documents from litigation, as well as heavily redacted documents obtained through FOIA requests, interviews with immigration applicants and their immigration lawyers.  To download the full ACLU CARRP report click here.

Some of the findings from the ACLU report raise many concerns:

  • CARRP disproportionately impacts immigrants from Arab, Middle Eastern, Muslim and South Asian communities
  • CARP broadly defines “national security concern” as any person with a  “link to prior, current, or planned involvement in, or association with, an activity, individual or organization described in [the security and terrorism sections]” of the INA
  • Anyone on the Terrorist Watch List is considered a “national security concern”
  • Anyone who donated to a Muslim-American charity can be labeled a “national security concern”
  • Anyone who has traveled through or resided in an area of known terrorist activity can be labeled a “national security concern”
  • Anyone on the FBI’s list can be labeled a “national security concern”

The effects of being labeled a “national security concern” are profound. Applicants for all types of USCIS benefits (asylum, visas, green cards, and naturalization) can have the adjudication of their applications (or petitions) delayed indefinitely or denied outright.

What’s an immigration attorney to do when you suspect your foreign national client has been caught in the CARRP program?  The first step is to understand how CARRP works and which clients may be potentially affected to determine if litigation is the proper next step.  As one attorney blogged, it’s time to start litigating.

Many clients question whether filing a lawsuit will just elicit a retaliatory denial, or even if it will work at all.  The answer is that it will work because the federal court knows that an outright discriminatory program will never support a basis for denial.

Indeed, the ACUCL of Southern California has already taken the lead on June 7, 2013 by suing USCIS in federal district court.  We’ll keep you updated on that case as it progresses.  Have comments or concerns?  We’d love to get your feedback below.