CIS Chief Counsel Says Policy Change Helped Stem Litigation Tide
The chief counsel for U.S. Citizenship and Immigration Services isn’t disclosing what he told an Obama “parachute team” during transition briefings today. But his agency’s efforts to reduce a huge uptick in litigation were likely part of the discussion.
Lynden Melmed tells the ABA Journal in an interview that when he became chief counsel at CIS early last year, it was facing a big increase in suits filed by immigrants seeking green cards and citizenship whose applications were delayed by FBI name checks.
But the flood of cases has been stemmed this year with the help of a policy change, he said.
The number of civil cases filed against CIS jumped from 680 in fiscal 2005, to 2,650 in fiscal 2006 to 5,570 in fiscal 2007, according to agency figures. The agency had only about 100 lawyers advising many frustrated U.S. attorneys handling the cases before angry judges dealing with swelling dockets, he said. The litigation strategy was to seek dismissal of the cases on jurisdictional grounds, and then to argue the delays were reasonable and necessary to preserve national security following the Sept. 11 attacks.
The cases sought to force CIS to act, often citing a law that required agency action within 120 days of the agency’s examination of the applicant. “I think the real challenge [was] that we were losing credibility with the courts by raising national security arguments,” Melmed told the ABA Journal. He said he considered it his job to not only defend the suits, but also to educate department leadership about the problems and to press for a congressional fix.
Things are beginning to turn around this fiscal year. Only 3,720 cases have been filed, and Melmed attributes much of the drop to a change in policy and new FBI efforts to eliminate the backlog, helped with congressional approval of more money for investigators.
Under the policy change instituted earlier this year, Citizenship and Immigration Services will process green card applications within six months, even if the security check is not yet completed. Anyone awarded a green card will still be subject to deportation if negative information is later found. Naturalization applications, which are more difficult to undo once approved, will still have to wait.
Asked for his advice to other government lawyers facing similar problems, Melmed says the job involves more than just formulating litigation strategy. “I think it involves the ability to represent your client well in litigation as an advocate while at the same time recognizing that your overall goals … sometimes require you to work with a client on policy issues, and in advocacy on the Hill.”
