Free Declaration in Support - District Court of California - California

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EXHIBIT 1

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CAL~ORNI~

ALIA AHMADI, et el., Plaintiff~, v. MICHAEL CHERTOFF, Def~ndant~.

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DECLARATION OF MICIiAEL A.. CANNON. Michael A. Cannon, pursuant to 2.8 U.S.C. § 1746, declares .the following: (1) I am currently the Section Chief of the National Name Check Program Section ("NNCP$") 'at th~ Headquartem 6f the Federal Bureau of Investigation ("FBI") in Washington, D.C, I have held that positioa since March 7, 2005. (2) In my current capacity as Section Chief, I supervise the National Name Check Units. The statements contained in this declaration are based upon my p~rsonal knowledge, upon information provided to me in my official capacity, and upon conclusions and detemainavi0ns reached and made in accordance therewith, (3) Due to the nature of my official duties, I am familiar with the procsdures followed by th~ FBI in responding to requests for information from its files pursuant tO the policy and the 10roeedums of the United States Citizenship and Immigration Services ("USCIS"). Specifically, I am aware of the~ name cheek request for Alia Ahmadi, Vladirnir Mikulicic, Igor

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Ovchinnikov, Biljana P~trovic, S~rgei S~pozhrlikov, Eiman Taky and Yah W~ng, the plaintiffs in

this civil action.
NATIONAL NAME, C!-IE(~K PROGRAM

(4) The Nadonal Name Check Program ("Program") h~ the mission of
diss,minadng information from the FBI's C,ntral Records System in response to requ,sis submittrd by federal ag,ncies, congr~ssiot~al committees, dae federal judicioa'y, friendly foreign

police and int~ilig¢nce agencies, and stat~ and local criminaI justice agencies. The Central Records System ("CRS")contains the FtH's administrative, personnel, and investigativ~ files, The Program has its genesis in Executive Order No. 104-50, issued during Lhe Eig~nhower Administration. That oxecutiv~ order addresses personnel s~eurlty issues and mandates N~tion~ Agengy Cheeks as part of the pre-empIoym,nt v~tting and background investigation proc,ss for prospe, otive Government employees, The b"BI performs the primary National Agency Check conducted on all United Stat~s Gowt'nment employ~s, From this modest beginning, 'the Program has grown exponentially, wiih more and more customers s~eking back~ound information from F~I fil~'s on individuals before bestowing a privilege, such as Government employment or an appointment, a security clearance, xtt~ndan~ ~t a White House functio.n, a "gr~n c~u'd" or naturalization, admission to the bar, or a visa, More than 70 federal, state, and 1oca3 agencies r~gularly r~quest FBI ham, searches. In addition to serving our regular Government cugtomers, the FBI conducts numerous name searches in direct support of the FBI's count*rint~tligence, count~r~errorism, ~d homeland security efforts.

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EXPLANATION OF THE CI~NTRAL RECORDS SYSTEM (5) Th~ ~I's CRS ~nabl~s ~ ~I to maintain all info~on which it has ~quimd in th~ cours~ of fulfilling mandated law ~nforc~m~nt responsibilities. ~ records main~n~d in th~ CRS consis~ of adminis~6v~ applicmt, cfimin~, p~rsonn~l, ~d other ~ampil~d for law enforcement pu~os~s. ~is system consists of a broken down ~:ording to subject ma~vr. Th~ s~hj~t ~tt~r of a fil~ may rela~ to an in~vidual, org~ization, ~omp~y, publication, a~tivi~, or foreign r~cords in lhe system are maint~n~d a~ ~I H~adquart~r~. R~ords which specific ~I Field Offices ar~ mostly m~n~ain~d at tho~ Field Offices," (6) ~I H~a~quar~rs md each Field Division ~m ~I's ~n~rfl hdicvs. ~ G~ner~ hdi~s ~ ~rang~d in ~phabe~ical order and consist of indices on v~io~s subj~u, including the names of in~viduala.a~d org~iza6on~. Only the information considered p~6n~nt, ~lev~, or ~aaen~fl for ~turc re~v~ is indexed. (7) Communications directed to ~I H~qu~crs ~om v~io~s Find Offices ~d ~gfl A~¢h~s ~ fil~d in ~e ~nent c~ fil~s and ind~x~ ~o ~he n~ of individuals, groups, or org~iza~ions which ar~ list~ in the c~ captions or ~tt~a ~ subjects, suap~ts, or victims. S~ch~s mad~ in the index ~o l~a~e ~¢ord~ son,truing p~i~ular ~ubjects are m~e by s:arching the n~ of the subj~t r~qu~sI~d in the index. (8) Th~ ~ntri~s in the Gvneml ~dices f~l into t~o (a) "main" en~rie~ - entries that c~ thv name with the subj~ of a file ¢ont~n~d in "rcfe~c~~' cn~i~s - entrivs (aom~6mes ~all~d mf~ren~es") ~hat g~nerally only m~nti~n or refvmnc~

(b)

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individual., organization, etc., that is contained in a document located in another "main" file. (9) In 1995, the FEI implemented the Automated C~e Support ("ACS") system for its Headquarters, Field Of'r'ices, and Legal Attaches, More than 105 million records were converted 'from automated systems previously utilizsd by the FrBI, The ACS system consists of the following three automated applications that support case management functions for all investigative and administrativ~ cases: Inwstigative Case Managemenl: This application provides the ability to open, ~ssign, and close inwstigativc and administrative eases as well as to set, a-~sign, and track leads. A ease is opened by th~ Offie~ of Origin, which sets leads for itself and other field offices, as needed. The offices that receive the leads are referred to as Lead Offices, When a case is opened, it is assigned a Universal Case Pile Number, which is utilized by FBI Headquartsrs and all offices conducting or assisting in the investigation. Using fictitious ~ile number "11 I-HQ-I2345" as an example, an expl~nation of the Universal Case File Number is as follows: "11 I" indicates the Classification for that specific type of investigation; "HQ" i.s the abbreviated form used for the Offic~ of Origin of the investigation. (in r_his c~e, Headquarters); and "12345" indicates the individual ease file number for that particular investigation. ¯ Electronic Case File: Thi.~ application serves ~s the central electronic repository for the FBI's official t~xt-based documents. It supports the univergal s~rial concept, where only the creator of a docum~n~ serializes it into a file, providing single source entry of serials into the .compute~'ized system~ All serials originated by the Office of Origin are maintained in the Office ot~ Origin's case file. Universal Index; This application, sometimes referred to as "UNr', continues the uniwrsal concepts of the ACS system by providing a complete subject/case index to s.II investigative and administr~.tive cases. Only the Office of Origin is required to index. However, the Lead Offices

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may index additional information as needed. 'The Universal Index., which consis~ of ~m {r~d~x of approximately 99.2 miIlion r~cords~ funcflo~ ~o index n~es ~ c~s, a~d to s~ch u~e~ and c~ f~r use in th~ ~I investig~dv~ and administra~w ¢~s. N~es of in~vidu~s or entiCeS are recorded with identifying info~ation such ~ th~ datg or pia~ of bi~h, v~, sex, locflity, so~ial security number, ~ess, or da~e of event. The decision to index names other than subjects, suspect.s, and victims is a discretion~n~y decision made by ~he investigative FBI Special Agent, the ~upervisor in the field

division conducting the investigation, and the supervising FBI Special Agent at FBI Headquarters. The ~BI does not index every name in its files, bur indexes only that i~formad0n

considered pertinent, relevant, or essential for future retrieval. Withouta "'key" (index) to this

mass informstion~ information ~ssential ~o ortgoing investigations could not b~ readily retrieved.
The FBI files would thus be merely archival in r~ature and could not be effectively used to serve one of the mandated missions of the FBI, to investigate violations of federal criminal statutes. "Therefore, th~ General Indices to the CRS files are th~ means by which the FBI can determin~ what retrievable information, if any, the F'BI may haw in its CRS files on a particular subject matter. (1 ~) When the FBI searches a person's name, the name i.~ electronically checked ~.gainst the FBI's Universal Index, The searches seek all instances of the individual's name, social s~curity number, and dates close to his or her date of birth, whether a main file or reference. As previously stated, any "main" file name would be that of an individual who is, himself or herself, the subject of an FBI investigation, wherea~ any "reference"' would be an individual whose name appears ~.~ part of an FBI investigation, For e×ample, "r~ferenees"

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include associates, witnesses, or conspirators. Addit!onally, there may be a myriad of other reasons to explain why an FBI Sp,cial Agent conducting an investigation believed it important to ind~Jde a particular name in r.he FBI's index for later recovery. The names ar~ searched in a multitude of eombinati0ns, switching the order of first, last, and middle names, as well a~ eorrtbinations with only the first and last names~ first and middle names, and so on. The Program application searches names phonetically against the Universal Index records and retrieves similar .~pelling variations. (which is especially important considering that many names in our indices have been transliterated from a language other than English). (12) If there iaa match with a name in a FBI record, it is designated as a "Hit," ' meaning th, at the system has stopped on a possible match w.ith the name being checked, If a search ¢om,s up with a match to a name and either a close date of birth or social security number, it is designated an "Ident." RF-,SOLUTION RA..TE (13) There are four stages involved in the completion of an individual name check; batch processing, name searching, file review, and dissemination. The first stage in the process, batch processing, involves the tra~asfer of the name check requests from USCISto the NNCPS on magnetic tapes. Each tape can hold up to I0,000 names, (Some requests are transmitted via fac.~imile or verbally via telephone.) The tapes are uploaded into an FBI system and the names are electronically checked against the b"BI's Universal Index (UNI). Historically, during the hatch processing phase, approximatelY 68 percent of.the name cheeks submitted by USCIS are returned to USCIS as having "No Record" within 48-72 hours. A "No Record" indicates that the FBI's Universal Index database contains no identifiable information regarding a

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particular individual. Duplicate submissions ('.h~., identically spelled names with identical dates of birth and other identical information submitted wl'~ile the original submisslor~ is still pending) are not ehecked,and the duplicate findings are returned to USCIS within 48-72 hours. (14) The second stage in the process is name searching. For th~ name eh~ek requests that ar~ ~till p~ndirtg gter the initial electronic eht~ek, additional review is required. An FBI employee in the NNCPS physically ~nters the applica.nt's name into the computer database searching different l:i~lds and information, A secondary manual name search completed typically within 30-60 days historically identifies an additional 22 percent of the USCIS requests as having "No Record," for a 90 percent overall "No Record" response rat~, The results of this 22 p~rcent also are returned to USCIS, (15) The third and fourth stages in the process are file review and dissemination, The r~maining l0 percent are identified as possibly being the subject of an r~eord, At that point, the FBI record must be retrieved and reviewed. If the record w~ electronieallyupload~d into the FBI's ACS electronic record-keeping system, it can be reviewed quickly. If not, however, the r~l,vant information must be.retrieved from a~ ~xi.~ting paper record, Revi,ff of this information will determine whether the information is identified with the request.. If the information is not identified with the r~qu~st, the request is closed as a "No Record" ~ad USCIS is so notified. (16) Additional searches against the FBI's Universal Index, additional manual name searches, and/o~- ~ditional file review of a nam~ cheek request, depending on the .length of time a name cheek request is pending in the processing queue, may occur periodically during the name check process to ensure tlaat stale information is updated.

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(I?) Once a record is retrieved, the FBI roviews the file for possible derogatory information. Less ~ha~ on~ percen~ of USC~'~ r~qu~sts ~ iden~ wkh a file cont~ni~g possible derogatory info~at[on, If appropriate, ~e FBI fo~ar~ a summ~y of th~ derogatory informa~on to USCN. (18) At each stage of p~essi~g, the NNCPS generNly follows a first-in, firstse~ protoeN. This protocol reflects that all applic~ts ~ equNly desexing and ensures that ~1 applie~ts are treated fNdy. However, if ~ applicant's name ch~k r~airzs a review of numerous ~I r~orL~ ~d files, even though that ~rson c~e in first, ~e n~e check may require additional time until all responsive r~ords are located and reviewed. The general exception to the first-in, first, served policy exists when USCI~ directs that a name check be handled on ~ "ex~dk~" basis. USCIS dete~inzs which n~e eheck~ are to be expedited b~ on criteria it determines. Once d~igna~ ~ ~ "exNdite," ~at n~e cheek proceeds to ~e ~nt of the queue along with other pfiofitized n~e eh~k r~uesu, in front of the others waiting to be processed. GROWTH O~ ~ NA~CHECK PRO~M (19). Pdor to September I 1, 2~1, th~ ~I pmces~ approximately 2.5 million name ch~k requests per ye~, As a result of the ~I's post-9/ll countene~orism efforts, the number of FBI name checks has ~own. For fiscal y~ar 2006, the FBI processed in excess of 3.4 million n~e eh~ks. (20) A si~ificant potion of the inco~ng n~e cheeks submitted over the few years h~ been submitted by USES. In fiscal ye~ 2~3, 6a% (approximately 3,929,0~) of the total incoming n~e ch~k~ were submitted by USCN; in fisealye~ 2004, ~6% (-1.727,0~)

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of th~ rot'al incoming name ch,cks were submitted by USCIS; in fiscal year 2005, 45%

(~1,512,000) of the ,~otal incoming name checks were submitted by U$CIS; and in fiscal year
2006, 45% (-1,633,000) of the total incoming nam~ checks were submit~ect by U$CIS. , !.IS CIS NAME CI-IE.CK REOU.EST$. (21) In November 2002, heightened national security concerns prompted a review of the former Immigration a~td Naturalization Service's ("INS's") procedures for investigating the backgrounds of individuals seeking immigration benefits. It was determined that de~l~r, mort derailed cl~arartc~ procedures wsr~ r~quire.d to protect th~ peop!e and th~ interests of th~ Uni~d Suttee ~ffectively., One of th~ procedures identified was the FBI's uame check cl~aranc~, B~fore Nowmber 2002, only ~hose "main" fil~s tha~ could be positively identified w~ith an individual w~r~ considered r~sponsive to th~ immigration ~uthorities nam~ ch~ck requests. However, be~us~ that approach ran a risk of missing a match to a possible derogatory record, th~ F~I altered its search criteria to includs "reference" files as w~1l, From a processing standpoint, this meant the FBI w~.~ required to r~view many mor~ files in iespons~ to each individua~ background check request, (22) In December of 2002 and January of 20(}3, the former INS resubmitted 2.7 million nsm~ ch~ek r~quests tO th~ FBI for background investigations of all individuals with thsn-p~nding applications for immigrations benefits for which ~h¢ Immigration and Nationality Act r~quir~d background investigations. Thos~ 2.7 million r~que.sts w~rs in addition to the regular submissions by the formzr 1"NS. Currently, the FBI has r~tume, d an initial rcspons~ to ail 2.7 million resubmittezl requ~su. Moreover, ~lth0ugh many of the F'BI's initial resl~Ons~S ~o those resubmitted requests indi.cated th~t th~ b"BI had no information r~lating to th~ specific

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individual who was the subject of the request, approximately 16 l~reent - or over ,~.40,0013 resubmitted requests indieateA that the l~Br ~ have information relating to the subject of the inquiry. The FBI is still in the process of resolving tho.~e 440,000 request.. Currently, less than 6,300 of tho.~e resubmitted requests remain pending. (23) . The I~I's processing of the more than 440,000 residuals has d~layed the processing of regular submissions from USCIS. A dedicated team within NNCPS has been assigned to handle only these re-submitted, name cheek requests, To the extent that the team members ar~ working on only these npplieations, they are unavailable to process the normal submissions which are generally completed on a first-in, first-out basis, unless otherwise directed by USCIS, (2~,) There are nurr~rous factors that have contributed to d~ays in the l~roeessing of name cheek requests. One is the volux~e of incoming name checks - the total volume of incomir~g name check requests combined with pending name check requests has historically outpaeed the NNCPS's available resources to process this voIume. As it concerns .submissions by USCIS, for Fiscal Year 2006, U$CIS submitted approximately 1,633,000 name check requests, nf which approximately 71 g,600 represented naturalization-related narn~ cheeks and approximately 658~000 represented adjustment of stat~.~-relaxe.d name ch~ks, As of the end of Fiscal Ye~ 2006~ the NNCPS had ~ver 364,600 pending U$CIS name cheek requests, of which over 157,300 represented naturalization-related name cheeks and over 157,800 represen~d adjustment of ~tatus-relat~d name eheek~. (25) Th~ nuraber of "hiu" on a name when it is reviewed may further eonwibute to a delay in processing a name check request, A "hit" is a possible m~tch with a 10

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name in an FBI record. The number of times the name appears in b'B! records correlates to the number of records which require review. (26) The processing of common names also contributes to a delay in processing ~ name check rexlue~st. The names associated with a name eh~ck request are searched in ~. multitude of combinations, switching the order of f~rst, last, and middle names, as well as combinations with just the first and last, first and middle, and so on, Without dztailed ' information in both the file and agency submission, it is difficult to determine whether or not a ¯ person with a common name is the sam~ person mentioned in FBI records. Common r~arnes can often have more than 200.hits on FBI records. (27) The ~ces,~ibility of the b"BI record needed for review also contributes to a delay ]n processing a ~ame check request. If the date of tha record predates October 1995, the paper record has to be locamd, retrieved, and reviewed; it" the dat~ of the record is later than October 1995, the raeord text may or may not be available electronically depending on the type of record ~d wh~ther it has been uploaded electronically. A paper record could be at one of over 265 poszibl~ locations across the country. Requests often involve Coordinating the r~trieval and review of rites from th~ various 56 different FBI field offices. One person's name checkmay involve locating and reviewing numerous files, all at different physic~ locations. ~a~h request must b~ communicated internally from the NNCPS to the field, and handled according to the current priorities of the particular fi~ld office. Sinceit is a paper based process, it is a process .¢ubject to misplaced or misfiled files. The process is tim~ consuming a~d labor intensive.

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(28) Another contributing factor whiehwa~ briefly mentioned earlier in ~hi.~ declaration is the expediied request. Processing an e×pedite.A case means that ~n employee is not ~.uailable to work on a normal narn~ cheek request. T/-/E NATJONAL NAME_CHE.CK PROGRAM IS AD.DRESS~NG T_!-IE.FACTORS T_!--IAT _CONTRIBUTE.TO DELAYS IN PROCESSING A NAM~_CHE,_'CK (29) The FBI is seeking a number of improvemer~ts to its process, Over the short-tlrm: (30) NNCPS is continuing to develop the Name Check Dissemination Database ("NCDD"), an ~lectronic.repository for name check results, to elimirl~te manual ~d duplicate preparation of reporr~ to other Agencies~ and provid6 avenuesfor future automation of the n~ne cheek process, (31) NNCPS is partnering with other Agencies to provide contractor~ and personnel to process name cheeks. (3:2) The I:BI is in the process of hiring additional employees to fl]leurrent vacancies and has procured an employee deuelopment program to streamline the tr~ning of new employees, thereby significantly d~reasing the amount of time needed before a n~wemployee can b~gin to significantly impact the NNCPS workload. The,~e efforts have led to the develol~ment of a name check employee training manual. (33) NNCPS, through the Records Management Division's P,.ecorcls Aut0~r~ation Section, is sc~ning the paper files reqt~ired for review in order to provide machine readable documents for the Dissemination Database. It is ~so building an Electronic Records ~ystem that allows for future automation of the name check process.

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(34) NNCPS is working with customers to streamline incoming product and to automate exchange of inforlr, ation. (35) AS a mid-term improvement, NNCPS is exploring technology updates to the name check process. SpecifiCally, the b"BI procured textual analysis software in order to ¯ investigate ways to fiatther automate the name check process. The goal is to incorporate an,xlytical software applications th~tt reduce the time spent to verify the identity of the individual and, once verified, assists in th~ adjudication analysis. This type of automation should decrease th~ time required to process a name ehe.ek, thereby increasing production. The FBI is building a proof of concept system for eventual integration into the FBi's core databases. (36) AS a long-term improvement, the F"BI is dewl~ping a Central Records Complex ¯that will create a central repository of recordg. Currently, paper files/in~brmation must b~ r~trieved from over 265 locations throughout the F"BI. The Central R~eords Complex will address this issue, creating a central r~pository-scannirtg of documents, and expediting access to information contained in billions of documents that are currently m~taually ~'eessed in loe',,tions around the United S~ates and world. In.addition, the essential long term improvement for F'BI Name Cheeks is to adjust the fee schedule to reflect th~ actual cost of providing name check services; Once tn place~ the FBI will be able to scale resources proportionally with workload demands - pending name checks will pay for themselves. At this time fees do not cover basic costs of providing the service, Therefore, the F'BI cannot adequately apply resources to proc~ssir~ name eh~cks without pulling erltically needed personnel and funding frc~m other programs. The F'BI procured services to conduct a study to d~termine an appropriate fe~ structure. This stud3' is in its final phase. 13

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(37) For th~ re~ons stated ~aflier, rh= FBI cannot provide a speoifi~ or general time fr~e f~r completing a~y p~cular n~ check sub~t~d by USCIS, Th~ pr0c~s~ing of name checks, inclhding those which ~e ~x~i~d, d~pcnds upon a number of factors, including whe~ in the pm,essing queue the n~e ch~ck lies; t~e warMoad of th~ analys~ processing the name check; the volume of priority eh~ks the analyst mus~ process Yor, ~ong others, ~]i~ earl-ups, m~ieal emergencies, "~¢-outs," or immigration "lotted" winners; ~he number "Hits," ~, possible ~tches) that m~t ~ r~ev¢d, reviewed and r~oNed; the humor records from various Neld Offices that must b~ retrieved, reviewed ~g resolved; ~d, mote gene~ly, the staff and r¢so~ces av~lahle to conduct ~e eh~ks. Unfo~nat,ly, ~he propfiet~ so~w~e ~CPS utilizes t~ process name checks does not report where in the processing queue pm~icuIar n~, Check r,quest may lie vis=~-vls other name eh~ks. AdditionaI~y~ untiI review e~h ¢~e is Undert~en no estimate for the time r~ui~d to compla~e it e~ even be no estJma~ can be made z~ to when ~he plaintiffs' z~es will ba re,bed by NNCPS staff, nor any r~liable astima~e be made ~ to how long it will t~e ~o eompi,te ~e review once it h~ bagun. While ~e ~I is sensitive t~ the impact of the delays in pro~ssing n~e ch~k requests, ~he.c0~equenc¢ of the ~I's mission on homeland s~eudty ~quims that i~s name check be primarily f~eased on providing accurate ~d ~horough results. When the name ch~k completed, ~e ~I provides the results to USCIS ~ quickly ~ possible. (38) it is important to note ~at th~ ~I does not adjudicate applications for benefits under the ~mig~tion and NadonNity Act. g appropriate, the ~I gene~lly provides sumt~w of available in~o~atirn to USCN %r iu adjudication process.

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course, in accordance with the FBI's normal protocol. (42) The name cheek request for plaintiffBiljana Petrovic was received by the FBI from USCIS on or about April 28, 2003 and was completed on August 1'7, 2007, The FBI l~erformed its cheek in response to USCIS's request in accordance with the procedures outlined above. The results of the name check wer~ forwarded to USCIS in W~hington, D.C., in due course, in accordance with the FBI's normal protocol.

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(43) The name cheek request for plaintiff Sergei S~pozhnikov w~ rezsived by the FBI from USCIS on or about January 20, 200~t and has not been completed. The FBI is performing its cheek in response to USCI$'s request in accordance with the procedures outlined above. The results of the name check will be forwarded to USCIS in Washington, D.C., in due course, in accordance with the FBI's norm'~l protocol. (44) Tile name check request for plaintiff l~iman Taky was received by the b"BI from USCI$ on or about August :25, 2004 and has not been ¢ornplsted. The FBI is performing its check in resportse to USCIS's request in accordance with th~ procedures ot~tli~ed above. The results of the name cheek will be forwarded to USCIS in Washingtor~, D.C., in due course, in ~cordane~ with the FBI's normal protocol. (45) The name cheek request for plaintiff Yah Wang wa~ rsceived by the from USCIS on or about May/5, 2003 and wa~ completed on May 15, 2007. The FBI pe~'forrncd its check in response to U$CI$'s request in aeeordane~ with the procedures outlined above. The results ofzhe name cheek were forwarded to USCIS in WMhington, D.C,, in clue course, in accordance with the FBI's normal protocol.

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