The Mohamad Tax

Mohamad is from Syria, but he spent a lot of his working life in Jordan before seeking his fortune in the US in June 1994. Based on his work experience in Jordan, a US restaurant sponsored him as a Halal butcher and he adjusted to legal permanent resident in December 1997. As a green card holder who was soon going to be able to naturalize, he married his wife, who was then a B-2 visitor, in March 2001. They had their first child, a US-born citizen, in September 2002. Mohamad filed an I-130 petition (“I-130”) for Wife simultaneously with his N-400 application for naturalization (“N-400”) in August 2002.

Because he is from Syria, an Al Qaeda country, there is another step in anything he files and that is that his file gets sent to FBI for a name check. Is this “profiling” based on national origin? Sure it is. But it’s just one of the many post-9/11 trade-offs the public sheepishly admits they generally feel like is justified. Because it’s maybe a tiny measure of safety with not much more of a burden on the person. The Arab and Middle Eastern community is basically being asked to take one for the team here, and generally they do so with humility and grace.

Or, to look at it another way, generally the victims of this policy are far more defeatist and docile about it than is appropriate to people we are supposed to be training to take their place in American society.

But here’s the thing. FBI name check ends up being an enormous burden on people with common names, with checks taking five years and more. So it basically ends up being a Mohamad tax. If your name is Mohamad, everything you try to do in the US is going to take five years longer than it takes anyone else. Mind you, that is not five years of active investigation. Don’t kid yourself. We don’t have near the resources or the political will to do that. The five years is just the time it takes until the FBI works through its backlog and gets to your file.

So say I am a bad guy. That’s five years where my file is sitting in a box. Five years before you discover me. So even if, despite yourself, you agree with the trade-off of my due process for your security; you’ve made this deal with the devil for nothing. Because you are now less safe with me running around for five years than you would be with me having to go before an officer.

Mohamad’s file was sent for name check in December 2002. The USCIS interviewed Mohamad for naturalization on May 2003. At that point, the N-400 was approvable, but for FBI name check, which was still pending.

They had their second child, a US-born citizen, in February 2005. Mohamad’s I-130 for Wife was approved in May 2005, but she was not able to adjust to green card because Mohamad had not yet naturalized.

At this point, everyone agrees that he is fully eligible for citizenship. He passed the English, the civics. He’s always supported himself and his family, paid his taxes; has no criminal record. It’s only the FBI check. Years pass; his life is on hold. His wife can’t get a driver’s license; can’t work. He contacts the various agencies, his congressman, the ombudsman -- no one can do anything.

Finally, after years of waiting for citizenship that he was fully eligible for, he brought a mandamus suit. A mandamus suit is basically suing the government to do their job. Yes or no, they have to give you an answer. He brought the mandamus suit in March 2006.

The suit forced the FBI to complete his name check, which they finally did in May 2006. Remember that the point of an FBI name check is that it is a much more thorough check than a person normally has to go through to get citizenship. So if you pass this check, then that means that the FBI has used all of its resources to check you and found nothing wrong. In December 2006, the case was remanded to the USCIS for a decision on the N-400.

In May 2007, over a year after he sued the government for an answer, they called him in for a re-interview. At the re-interview, they are supposed to pick up where they left off, basically checking that everything is still correct and current from the first interview, and moving along to the next step. Instead, the officer asked him all sorts of cryptic questions about his work back in Jordan.

In September 2007, Mohamad got a denial in the mail saying that “The State Department” has found that he lied about his work in Jordan, so he can’t naturalize and, furthermore, he needs to go to immigration court about whether he should even be allowed to keep his green card.

After some phone calls, we think we know what happened. Basically, a full decade after a USCIS officer took a look at the proof of his employment in Jordan and found it satisfactory; some unnamed state department employee with who-knows-what training, under who-knows-what authority took it upon himself to make some phone calls to who-knows-who, who said who-knows-what, based on first-hand knowledge, or not.

To put it another way, it’s hearsay. Rank hearsay, we sometimes like to say. Rank, stinking, putrid, oozing hearsay. I can think of no other explanation than that someone (at the USCIS?) wants to make an example of him because he sued the government for an answer. Plain vanilla petty retaliation dressed up as an official act. If your English teacher was like mine, she taught us to be wary of the passive voice, right? To unpack the language that people hide behind? “The State Department has determined,” = “a guy at the embassy told me.” So where’s that guy? Show me his report, his affidavit, his text message -- anything!

We’ve already been to Immigration Court twice on this. The judge asked the trial attorney for Homeland Security if they had anything to back that up, and of course they did not. But he gave them more time to fabricate -- a’herm, I mean, substantiate -- their claim. For now, without any more evidence than whatever it is “The State Department” secretly “determined,” this innocent man stands in jeopardy not only of the citizenship that by rights he should have gotten in 2003, but of the green card that he has had in good standing since 1997.

I am fortunate in my client. I know that he is scrupulously honest. I know that they will find nothing. (I can’t say this about all of my clients. But then, be honest, can any of us say that about all of our friends?) So, if there is any justice, after all of the appeals and the trials are done, I will be able to wrest back his green card if not get him that citizenship. But what will it have cost him? What will our clumsy first steps at homeland security have cost him? In lost time, lost productivity, in family discord, in legal fees, in stress? And what will it have cost us? In resources, in lost revenue, in loss of integrity, in bitterness?