Immigration & Refugees

Secret extreme vetting of immigrants delays the American dream

A year had passed. Yet no matter how many times the 38-year-old Iranian engineer asked the U.S. immigration office in Kansas City about his citizenship application, the frustrating answer was always the same.

“They’d say ‘It’s pending,’ ” Behrang Pakzadeh said.

Pending? Pending what?

“Background checks,” was the cryptic reply again and again, always without explanation of what might be holding things up.

On the job, Pakzadeh’s co-workers know him as Ben, while at home in Shawnee his American-born wife, Rachel, calls him Benny, which fits his sunny personality.

He began his quest for citizenship with a positive attitude. He understood the need for background checks. The government works hard to exclude criminals and people with ties to terrorism. Aided by the FBI, U.S. Citizenship and Immigration Services scrutinizes everyone applying for citizenship, or asking for permission to live, work or visit the country on a visa.

But when the standard processing time for naturalization is five to seven months, why had he been waiting twice that long with no resolution in sight?

When the feds wouldn’t say, Pakzadeh grew impatient and hired a lawyer from St. Louis with a wealth of experience in handling cases like his.

That attorney had a ready explanation for why Pakzadeh’s paperwork was stalled.

“I think they have an overall approach to try and slow down immigration by Muslims to the United States,” James O. Hacking III said.

Hacking had seen situations like Pakzadeh’s repeated over and over. He’s filed more than 60 lawsuits in recent years, accusing the government of unfair treatment of Muslims chasing citizenship or green cards that signify permanent resident status.

Mostly, he’s been winning, gaining citizenship or green cards for more than 100 people coast to coast by calling out the feds on their stalling. In fact, he argues that simply calling the government’s bluff nearly always gets officials to relent.

In the case he filed last fall for Pakzadeh against the Department of Homeland Security, Hacking made many of the same claims he argued in nearly every case he’s filed since 2013 when a secret government screening process was revealed.

His client, he said, had been unfairly singled out for the sort of extreme vetting President Donald Trump often suggests for screening new immigrants from majority-Muslim nations.

Except the little-known and secretive vetting process to which Pakzadeh was subjected, Hacking said, was in existence years before Trump proposed his controversial travel ban and enhanced vetting process.

Instead of fresh immigrants, it targets people already in the country legally. Folks who have already been vetted at least once, and are now trying to upgrade their immigration status so that they can stay here permanently and eventually gain citizenship.

The Controlled Application Review and Resolution Process was imposed in the waning days of the George W. Bush administration and continued under Obama. Since then, tens of thousands of immigrants have seen their applications stalled or denied, according to the American Civil Liberties Union and news reports.

CARRP’s purpose would seem reasonable on its face. It subjects immigrants with known or possible national security concerns for more scrutiny than other applicants get.

But critics say the criteria used to trigger review are overly broad and discriminatory, disproportionally targeting immigrants from Muslim-majority countries. As a result, they claim, it is unconstitutional.

Once someone is placed on the CARRP track, their fates are often doomed, according to the ACLU. The group was the first to reveal CARRP’s existence in a 2013 report.

Immigration officers are told to impede an applicant’s progress toward citizenship, delaying and ultimately denying their applications “all without informing applicants they are subject to the policy let alone giving them an opportunity to respond to the agency’s classification of them as a ‘national security concern,’ ” the civil liberties union said.

Pakzadeh still doesn’t know what about his background triggered so much examination and seeming foot-dragging before finally taking his citizenship oath this spring.

Neither does Rachel, who grew up in Ohio and describes herself as “a white girl with brown hair and brown eyes” who until recently had what she now sees as a naive belief in the fairness of the immigration system.

But all that delay and the lack of transparency left her jaded.

“Each time there were delays,” she said, “a chunk of my confidence in the system fell away.”

No apologies

U.S. Citizenship and Immigration Services makes no apologies for how it runs the CARRP program or the delays that result.

“USCIS’s highest priorities,” spokesman Tim Counts told The Star in an email, “are to safeguard our nation and ensure the integrity of our immigration system. USCIS is vigilant in executing these responsibilities, and will not sacrifice national security or public safety in the interest of expediting the review of benefit applications.”

While the ACLU first brought CARRP to the public’s attention, Hacking has represented more clients and has become perhaps the nation’s leading legal crusader challenging the government’s use of the process to review immigration cases.

Immigration lawyers in the Kansas City area rarely bring such cases, for instance, partly because most of their clients are unwilling to sue the feds.

“They’re terrified of the government,” said attorney Michael Sharma-Crawford. “They come from countries where if you criticize the government, you disappear in the middle of the night.”

Hacking’s clients seek him out from all over the country. Recently, he’s filed cases in federal court in Texas, Florida, Michigan and Missouri. All ask judges to rule CARRP unconstitutional on the grounds that it’s discriminatory and goes beyond any powers granted by Congress.

That claim, he believes, is his special sauce. Rather than risk having CARRP struck down as unconstitutional, the government often declares his clients eligible for an immigration upgrade or citizenship rather than take the case to trial.

“The dirty little secret,” he said, “is that filing the lawsuit gets them moving because they don’t want a judge to declare that CARRP is illegal.”

Hacking’s passion is personal. At St. Louis University Law School in the mid-1990s, he met his Egyptian-born wife, Amany, while she was also a student there. He’s been a practicing Muslim ever since. Only in the last 10 years, however, has he specialized in immigration issues.

He switched from maritime law after learning that so many of his friends felt they’d been blackballed by immigration services after Sept. 11, 2001.

“I was doing other kinds of law for, like, 10 years,” he said. “And people at the mosque would ask me to help them with their long-pending citizenship cases. It was a big problem. So I went around to all the local mosques, and I found 36 people who had been waiting for more than a year for their citizenship.”

That was 2007, a year before CARRP became formal policy.

Hacking filed a lawsuit on behalf of those three dozen clients. A judge refused his request to give the case class-action status, not that it mattered. The case was dismissed before it ever went to trial because the government voluntarily granted citizenship to all but two of the plaintiffs.

The case generated so much publicity that Hacking soon had 18 other clients with stalled immigration cases. Just like before, that lawsuit prompted the government to look favorably on most of those citizenship applications before a jury was ever picked.

In response to Trump’s rhetoric on the campaign trail, he filed another big case last year on behalf of 20 clients (13 got their citizenship, five withdrew and two were denied). Now, Hacking mostly sues the government on behalf of individual clients.

A Syrian doctor and his family living in Columbia, Mo., recently got their green cards after nearly two years of waiting. He also helped a 37-year-old Nigerian cab driver living in Florissant, Mo., who had been waiting two years before his citizenship was approved in May.

“Just because my first name is Muslim does not make me a terrorist,” said the cabbie, Wasiu Adeyinka. “There’s no word to quantify the kind of frustration it was. You have to be in my shoes.”

Of all the immigration cases he handles, Hacking said, the CARRP ones are his favorites.

“Because you get these people with no hope,” he said, “and within three or four months, you get their whole case turned about and decided for them almost every single time.”

Pakzadeh’s case was typical in some ways. But it was also extraordinary in one respect, depending on one’s reading of a document in the court file. The government seemingly admits to something it otherwise makes a point not to acknowledge.

In that motion for a time extension, it said: “Pakzadeh’s application for naturalization was referred to the Controlled Application Review and Resolution Program.”

However, the U.S. district attorney’s office in Kansas City recently denied that interpretation.

“We didn’t mean to ‘acknowledge’ that Pakzadeh was referred to the CARRP,” spokesman Don Ledford wrote in response to a request for clarification, “only to recognize that Pakzadeh contended in his federal complaint that he had been referred to CARRP. ...

“In other words, that is Pakzadeh’s claim, not ours, and not a claim that we are in a position to either affirm or refute.”

Month of delay

The son of a school teacher and a university professor, Pakzadeh was born and educated in Iran’s capital, Tehran. That’s where he got his bachelor’s degree. He arrived in the United States in 2006 to work on his doctorate in environmental engineering at the University of Nevada-Las Vegas after earning his master’s in Denmark.

He and Rachel met at a casino while she was studying to become a special ed teacher, moved to Portland, Ore., and married in July 2010.

That next month, they applied for his green card, which took two years longer than it should have because of a paperwork mixup after yet another move.

“They were super nice,” Pakzadeh said. “They said, ‘Sorry your case was misplaced.’ It happened quick after that. They went out of their way to schedule everything.”

He and Rachel took immigration officials at their word and eagerly anticipated when he’d be eligible to apply for full citizenship after three years.

That would turn out to be a frustrating ordeal.

“I was just kind of naive,” Rachel said, “to the whole system and the prejudice to people from Iran and the Middle East.”

They were both giddy when Benny filed his N-400 Application for Naturalization on Oct. 15, 2015. That next month, he walked into the USCIS Application Support Center in Kansas City to be fingerprinted and photographed for his biometrics check.

Congress recommends that the whole process from beginning to end should take no more than 180 days, but when those six months had passed — April 13, 2016 — he’d heard nothing back. So Pakzadeh began his routine of calling immigration services and writing the FBI for updates and offering to answer any questions.

He heard nothing but formulaic responses that felt like both agencies were passing the buck. The FBI said to check with immigration. The folks at immigration said they were waiting on the FBI and others to finish with background checks.

“You just go through a loop,” Pakzadeh said. “I was laughing sometimes when I called them because I knew what they were going to say.”

About a year ago, he submitted an open records request to see what was in his file. When the packet arrived two days after Christmas, much of it was blacked out and useless. Many other pages were copies of the documents he’d provided, Pakzadeh said.

“Tax data for every year, birth certificates, marriage certificate, bank statements, lease, all the forms that we filled out from entry to date, some bills that we submitted to them, pay stubs, photos of wedding, every document that we both have in our life!”

Yet not a word in those 599 pages, he said, pointed to an issue that would give rise to a national security concern.

Mystery remains

By the time those documents arrived, Hacking’s lawsuit was more than 3 months old. In it, he said that his client’s citizenship case was being held up by CARRP, which he said was flawed in numerous ways.

First, there’s the criteria that targets people as national security concerns. There are two categories, beginning with “Known or Suspected Terrorists.” That includes anyone on the much-criticized terrorist watch list, on which there are believed to be a million names. Because there’s no way to know whether you’re on the list, there’s no way to get your name off, if it got on there based on bad information.

The other category flagged for CARRP review is “Non-Known or Suspected Terrorist.” It doesn’t take much to rate that classification. Travel through areas of known terrorist activity, which could be almost anywhere these days. Having contact with a friend, relative or associate who might be suspect.

Even having so much as voluntarily spoken with an FBI agent about anything is a trigger.

But perhaps the worst part of the program, Hacking said in the suit, is the process that kicks in after someone is subjected to CARRP.

Once immigration classifies someone as a national security concern, the suit alleged, “the application is subjected to CARRP’s rules and procedures that guide officers to deny such applications or, if an officer cannot find a basis to deny the application, to delay adjudication as long as possible.”

The ACLU points to government manuals and other materials obtained through the Freedom of Information Act as proof of that claim.

The government responded to the lawsuit in U.S. District Court in Kansas City with a request for more time to respond and to bring in its experts in immigration law from Washington, D.C.

That spooked Hacking’s client.

“I’m thinking, ‘Oh, my God, what do they have on me that I don’t know about?’ ” Pakzadeh said.

As it would later turn out, nothing, apparently.

Four months after the government asked for more time to file what ended up being a vigorous, 22-page argument of why Pakzadeh’s lawsuit should be dismissed, Hacking heard from immigration.

His client was free to schedule his citizenship interview. No one ever explained why he and Rachel had been put through what seemed like 17 months of hell.

Rachel said she “chewed off every fingernail” as she waited in the lobby for her husband to pass his test March 28.

Pakzadeh took his oath the following month along with dozens of other new Americans at a tearful ceremony on the sixth floor of the federal courthouse in Kansas City, Kan.

His daughters, Ruby, 5, and Roxana, 2, fidgeted as the Sons of the American Revolution presented the colors and Kansas Appeals Court Judge Melissa Standridge spoke about the importance of voting.

The four of them celebrated at home with friends and family at a multicultural potluck. There were Persian dishes. A friend brought Irish whiskey, and Rachel’s dad cooked brats in honor of her family’s German heritage.

“We are an American family,” Rachel explained the other day. “We grill hotdogs and go to the pool in the summer.”

Her husband considered writing about their ordeal to vent his frustration. He wanted to tell his fellow citizens how it felt to come from abroad with dreams of a new life and have this government view him with suspicion because he was born Muslim.

“Mentally,” he said, “it was very hard.”

Then he laughed.

“But it’s all behind me now.”

Mike Hendricks: 816-234-4738, @kcmikehendricks