Oh, Say Can You Sue?

Immigrants stuck in federal red tape find lawsuits their only path to citizenship. How American.
Thursday, September 20, 2007
By Betsy Yagla


When Ali Abubakr Ali Al-Maqtari got off the airplane at John F. Kennedy airport last month, he knew the FBI would be waiting for him. The federal agents checked disembarking passenger's passports until they found him. They matched the name in his passport against a piece of paper they were carrying. Then they led him to an airport Homeland Security office.

This happens every time he travels, says Al-Maqtari, a legal immigrant from Yemen who resides in Greenwich. The last two times Al-Maqtari returned from Yemen he was interrogated, but this time he refused to answer questions.

"It's stupid," he says sitting outside of his office at Southern Connecticut State University, where he teaches French and Arabic. "They already know everything about me. They know my whole life." He was held in the office for three hours and was not allowed to call his lawyer. Finally they gave up and let him pass through customs.

Al-Maqtari's name appears in an FBI terrorism database because of what happened to him shortly after 9/11. Al-Maqtari married his American-born wife, Tiffany, in June 2001. The couple filed a marriage application with Hartford's U.S. Customs and Immigration Services office shortly thereafter. On Sept. 12, 2001, the couple went to Springfield, Mass., because Tiffany's National Guard unit had been called up. In Massachusetts, the Al-Maqtaris spoke French to each other and Tiffany was wearing a hejab, or head scarf.

From Massachusetts, the couple traveled to Fort Campbell, Kentucky, where Tiffany was to report for duty and stay for a year. Tiffany's picture had been delivered to the camp's gates—presumably because she was wearing a head scarf and speaking a foreign language—and when they arrived, the couple was detained and their car searched. The two were questioned for 12 hours. Although she wasn't arrested, Tiffany was then taken to a barracks where three guards watched over her until nearly two weeks later, when she requested an honorable discharge from the Army.

Her husband, though, was held until late November in a Tennessee jail, initially without bail. He was only allowed to talk to his wife once a week by phone. The FBI detained him after finding box cutters and postcards of New York City in the couple's car. The box cutters, says the couple, were to help unpack after moving to Kentucky and the postcards were momentos. Still, it took two months to get Ali Al-Maqtari out of jail.

In 2002, Al-Maqtari's immigration status was finally changed and he was granted a green card. But he wants to be a citizen.

"Unless that happens, I'm not free," he says. "Every day I think about this. It's like having a test in college, but the teacher won't tell you when it is. It's like I'm just hanging in space, and why?" Federal agencies were dragging their feet in processing the college professor's immigration application, leaving Al-Maqtari no choice but to sue for citizenship.


Following the 9/11 attacks, U.S. Customs and Immigration Services (USCIS) asked the FBI to perform millions of background checks on legal immigrants applying to become citizens. Legally, USCIS only has 120 days to decide whether an applicant can become a citizen after completing the interview and the naturalization exam, but FBI background checks are so backlogged that some immigrants may wait years.

"Generally, 90 percent of USCIS requests are completed within 90 days," says FBI spokesman Bill Carter.

But for those 10 percent, a lawsuit is oftentimes seen as their last remedy. In the past 18 months, 120 of these lawsuits have been filed in U.S. District Court in Connecticut, according to John Hughes, a federal prosecutor who handles many of these cases for the government.

While the rancorous national debate over illegal immigration is focused almost solely on undocumented immigrants and get-tough border enforcement, little attention is paid to people who ask permission to move here and the bungling federal bureaucracy that holds them in limbo. Immigrants playing by the book often aren't getting the help they need from federal officials.

Not all of these immigration cases go to court; many times a lawsuit will persuade the FBI to pull a citizenship candidate's file and complete the background check. After months or years of waiting—but before the court date—an immigrant will get a letter in the mail inviting him or her to a follow-up citizenship interview (which happens if two years have passed since their first interview) or to take their citizenship oath.

The FBI's Carter says files are only expedited if there's a court order to do so.

But Garri Zingman's story suggests otherwise. Zingman, 66, is an immigrant from Belarus who fled under persecution as a Jew in 1998, which ordinarily "practically guarantees you refugee status," according to Zingman's immigration attorney, Alexander Lumelsky. Zingman, who lives in Manchester, filed suit for citizenship, and just weeks before he was to appear in court he was invited to take his citizenship oath. He and his wife Zina both applied to become U.S. citizens on Dec. 26, 2002. Zina became a citizen in 2003, but her husband waited another four years.
"When she got it [citizenship], I hoped that soon I'd get it too," says Zingman with a heavy, angular accent. "I thought I'd get it in a month or so. Then it became a year, two years..." he trails off, fiddling with his wire-framed glasses. Nearly five years after he applied, he at last became a citizen.

On Feb. 11, 2004, Zingman completed an interview and took the naturalization exam. After the exam, he was given a form with an X marked next to the phrase: "Congratulations! Your application has been recommended for approval." That same day, in Hartford at the USCIS office, Zingman was told he would take the oath to become a citizen on March 5.

But the day after passing the exam, Zingman received a letter in the mail saying his March 5 oath had been cancelled because the FBI had not completed his background check. So, Zingman sued the FBI, the U.S. Department of Homeland Security, USCIS and the Justice Department in an attempt to force the issue.

"Every day you wait for them to call you," he says. "You feel like you're in a state of instability."
Zingman and four other hopeful citizens-to-be were scheduled to appear in federal court in Hartford Aug. 30 to plead their cases. But just two weeks earlier, Zingman received a letter saying he'd been scheduled for a follow-up interview at USCIS's Hartford office on September 7.

He became a citizen that afternoon.

All but one of the five cases scheduled for the 30th were resolved before their hearing.
So, on a slow morning in a high-ceilinged, wood paneled courtroom, U.S. District Judge Christopher Droney listened to the details of Ali Abubakr Ali Al-Maqtari's case.
"It's odd that so many cases, including this one, involve people from the Middle East," noted Droney.


Every year, the FBI has more than three million background checks to perform, John Hughes, the federal prosecutor, told the judge. That's something Hughes repeats to the judge in nearly every one of these lawsuits. Most are simple background checks—if the immigrant's name doesn't appear in any FBI files, the check is done. Others though, who may have the Chinese, Russian or Middle Eastern name equivalent of John Smith, have a tougher time.

People like Al-Maqtari, whose name is already in FBI files because of what happened to him after 9/11, have an equally tough time.

In court, Hughes explains that most of those three million background checks get cleared in less than two months, and 10 percent of the three million need to be investigated. The FBI won't say why they need extra time to investigate someone. They won't even tell Hughes.

"This is a concern to me," interrupts Judge Droney. "There may be a few cases where, in regards to national security, there may be something in the file you shouldn't know about. But you don't know what's going on in 32 percent of these cases?"

"They won't tell me," responds Hughes. "Think of the 32 percent," he says, throwing his hands up into the air. "That's thousands and thousands."

"So, the alternative is that the applicant waits two or three years?" Droney asks dryly.
Hughes reasons that if lawyers and judges begin asking the FBI about particular cases the whole process would be slowed down. The government would rather everyone just sit tight and wait quietly.

But Al-Maqtari has already been scrutinized by the FBI and immigration officials in a post-9/11 world to receive his green card. Why should he be made to wait again to become a citizen? "A two year wait is just not reasonable," argues his lawyer, Justin Conlon.

Conlon works for attorney Michael Boyle, a prominent immigration attorney with offices in Danbury and North Haven. Boyle says he's seen an explosion in these types of lawsuits. In one year, his office has gone from filing two or three citizenship lawsuits a year to one per week.
"With these constant delays, Immigration Services just washes their hands and says, 'It's the FBI's problem,'" says Boyle. "The FBI just says 'We're really busy.' They'll say 'We're not going to jump you in line.' But this isn't jumping the line—these are people who've been waiting for years. It's a really big problem."

The only way to get priority for his clients is to file a lawsuit, says Boyle.

Alexander Lumelsky, Zingman's immigration attorney, is also seeing more and more of these cases. Another of Lumelsky's clients, Andrei Bulygin, filed a lawsuit against the federal government and shortly thereafter received notice that his citizenship oath would take place Sept. 7. After so many delays, Bulygin didn't actually believe it would happen.

Bulygin, 72, is from Russia and resides in Hartford. Like Zingman, he, too, was persecuted for being Jewish. He had been an aeronautics professor in Russia before he lost his job due to discrimination. Bulygin moved to Connecticut with his wife, daughter, son-in-law and their son and they all received refugee status. As a refugee, Bulygin was eligible for Supplemental Security Income.

Non-citizens lose their right to benefits, like Supplemental Security Income, after seven years. Bulygin has been here for six and a half years, and his SSI benefits would have expired in February. In 2005, he, his wife, daughter, son-in-law and their son all applied for citizenship. Bulygin is the only one in his family who had not been granted citizenship due to the FBI's delayed background check.

"If I don't get my benefits, I'll have to go back to Russia again," worried Bulygin weeks before his Sept. 7 appointment. His family would not have returned with him. After nearly seven years out of the country, Bulygin felt he had nothing to go back to. But by 2 p.m. on Sept. 7, Bulygin was an American citizen and had already applied for a passport.

Without citizenship, people can't vote, they can't petition for their children, parents or spouse to come live in the United States. They're in limbo—they don't feel they belong to their birth country, but they're not fully accepted in this country either. Unfortunately, suing—something as American as baseball and apple pie—may be their only recourse.