N400 denied, please need some advice

E

Euler Leon

New Member
My dad and I are panicking after his N400 decision

I tried to keep this short, but was impossible.
He was married to a US citizen(2000 apr) and she applied for my dad and me for greencard. Mine was initially approved with 2-year conditional (2001 december) but my dad’s case was pending due to some issues with his advanced parole. my citizen mother petitioned for conditional removal for me(2003 October) and very soon after that filed her divorce after a bad fight(2003 October). (at the time my dad’s greencard still was not approved) they were able to resolve the conflicts so they were going on/off for a while. My dad still did not hear back from USCIS but my citizen mother was very difficult and their relationship grew apart. In 2005 April, my dad ended up filed the divorce saying he was living under extreme cruelty and she signed the divorce paper and divorce was finalized (his greencard was still not approved). In 2005 June, we were called upon an interview for removal condition.(My Dad and I are not sure, if this was an interview called from USCIS or interview requested from our lawyer at the time) On the interview, we gave them the finalized divorce paper (with extreme cruelty). There was no answers on the interview. Since then we had an address change but did not correctly follow through (could not retain our lawyer at the time due to financial reasons) When I showed up for my stamp extension in 2006 December, I was informed that my 10-year card was sent to my old address but returned to USCIS due to not pick up. I then applied for address change and applied for a new card (replacement?). I got my card in the mail in 2007. Addition to my card, my dad has also received his card on 2007 as well. We were both shocked but we just thought that he was lucky and got approved finally. We did not have resources to hire the lawyer to ask about this matter at the time. In 2009 I applied for naturalization and got approved and became a citizen on my own. (almost 8yrs after when i first got my 2-yr card)

In 2014, dad applied for citizenship and got denied at the interview (almost 6~7 years after card in mail), the interviewer mentioned that the time he got approved was later than his divorce date. Now we have the denial letter on our hand. My dad is worried very much that they are going to revoke his greencard. Are they saying that they do not believe in his marriage? Should I also worry that they might revoke my citizenship? (since my removal was also approved after the divorce..)


Here is the letter

December XX 2005 you got permanent residence status by your spouse Citizen Wife, in immigrant classification IR6 spouse of US citizen. USCIS gotyour form N400 on March XX, 2014 and on June XX, 2014 appeared for an interview to determine your eligibility for citizenship
- During your interview and reviewing afterwards, USCIS determined that you were not lawfully admitted for permanent residence. During your sworn testimony, you state that you were divorced from your US citizen wife on April XX, 2005. In order to obtain permanent residence from marriage, you must remain legally married at the time of adjustment. because you were not legally married at the time of adjustment on December XX 2005, you were inadmissible at the time of adjustment of the status.

- To qualify for naturalization on the INA 316 you have to demonstrate that you meet all the requirements of naturalization including the requirement of having been lawfully admitted for permanent residence, however you have not shown that you have been lawfully admitted for permanent residence and, therefore, you are ineligible naturalization. See INA 318.

- If you believe that you can overcome the grounds for this denial you may submit request for a hearing on form N-336 request for a hearing on a Decision in Naturalization proceedings, within 30 calendar days of service of this decision.

- Without properly filed form N336, this decision will become final See INA336


1) He does not care about being a citizen at this point. Will he be able to remain as LPR? Can he get extension on his 10-year greencard?

2) does USCIS believe that this marriage was not real? (my dad is worried that we do not have sufficient information from 10 years ago.. and also lack of legal representation at the time we do not know if information we have is good enough now)

3) Will my citizenship be on risk?

4) What is INA316, INA318, N336!?

all my dad wants now is his greencard and no more troubles from USCIS...
 
I can try to answer some of these things.

1) Based on what they're saying, no. Basically, they're saying that he can't naturalize because they discovered that he's not really an LPR. And they're saying he's not an LPR because his Adjustment of Status shouldn't have been approved, that it was a mistake to give him a green card, because he was not married at the time his Adjustment of Status was approved, and he is adjusting status based on marriage to a U.S. citizen. Forget about renewing the card; his current LPR status that is threatened. I expect they might start removal proceedings against him when this is finalized.

2) The genuineness of his marriage is not the issue; rather, in order to adjust status as a relative, you have to remain a relative from when you AOS is applied all the way until AOS is approve. Since he divorced in the middle of AOS, he shouldn't have been approved.

3) No. Your case and his are completely separate. Since he was in the Immediate Relative category (he was spouse of a U.S. citizen), he couldn't have derivative beneficiaries. This means that your mother must have petitioned for you on a separate petition. I am not sure whether this is your mother or stepmother, but either way, it is fine. Even if it was your stepmother, your AOS was approved while you were still her stepchild.

4) INA 316, 318, 336 are sections of law. N-336 is the form to request a hearing on the denial (to fight the denial). If you don't ask for this, then the denial is final.


Did he come to the U.S. on a K-1 fiance visa petitioned by your mother? Or did he come some other way? If he adjusted status based on K-1, there might be a way out of it.

Even if it is found that his permanent residence is invalid (which sounds likely), if you are 21 or over, there is a way he can stay and get a green card -- you can petition him. Since he is the parent of a U.S. citizen, and he entered legally, he will qualify for Adjustment of Status no matter what his status is. You can file I-130 and I-485 together at any time, and he will immediately be allowed to stay. I am not sure though if you do this whether you can do it now (before it is decided that he isn't LPR), or whether you have to wait. But if you wait until he is in removal, you would have to file it to the court and they are not guaranteed to consider it; whereas if you file it before they put him in removal, then it protects him against removal.

You want to get a lawyer on this.
 
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USCIS knew he was divorced before they approved his green card, and now he has held the green card for more than 5 years, so it's too late for them to revoke his green card based on a mistake for which they had the material facts before green card approval.

However, they may still attempt to revoke his green card, so he may still end up in removal proceedings and have to fight it out based on the 5-year statute of limitations.
 
Jackolantern said:
USCIS knew he was divorced before they approved his green card, and now he has held the green card for more than 5 years, so it's too late for them to revoke his green card based on a mistake for which they had the material facts before green card approval.

However, they may still attempt to revoke his green card, so he may still end up in removal proceedings and have to fight it out based on the 5-year statute of limitations.
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Interesting. But if they can't take away his green card, that means that he's a permanent resident, which means that his does qualify for naturalization; so if that's the case, shouldn't they fight the denial of naturalization too?
 
USCIS knew he was divorced before they approved his green card, and now he has held the green card for more than 5 years, so it's too late for them to revoke his green card based on a mistake for which they had the material facts before green card approval.
However, they may still attempt to revoke his green card, so he may still end up in removal proceedings and have to fight it out based on the 5-year statute of limitations.
Click to expand...
I really appreciate your response and i come with a couple more...

Do they not usually mention in the denial letter about their future plans (may be NTA or leaving my dad alone?)
So from the exacts words from the denial letter, no way to tell if they will issue NTA?
Also is it possible that they will 'claim' not to receive the divorce letter on our conditional removal interview?? (although we did for sure bring the documents and handed over) isn't it enough that the it was only my dad and I showed up, that could also be a helpful factor to prove that we notified Immigration before their decision to approve his case, right?

I found this one other guy whose N400 denied because his greencard was also approved after divorce due to FBI fingerprint check. It seems that he received his NTA.. but my dad has not been called for fingerprinting but rather his card just came in mail.. hope this can be a different case

3) No. Your case and his are completely separate. Since he was in the Immediate Relative category (he was spouse of a U.S. citizen), he couldn't have derivative beneficiaries. This means that your mother must have petitioned for you on a separate petition. I am not sure whether this is your mother or stepmother, but either way, it is fine. Even if it was your stepmother, your AOS was approved while you were still her stepchild.
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I can not find any documents from long ago but yes she was my step mother and I believe she filed for me separately. I was AOSed while they were married but by the time at my conditional removal interview, we told the interviewer that my dad was divorced. but i know that my stepmom signed my petition for removal but was not at the interview since divorce. does this change anything about my case? or am i simply worrying too much even though I'm already a US citizen.
by the way we do reside in NJ
 
Euler Leon said:
Do they not usually mention in the denial letter about their future plans (may be NTA or leaving my dad alone?)
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No, with naturalization denials they usually don't say anything about whether they plan to initiate removal proceedings.

Also is it possible that they will 'claim' not to receive the divorce letter on our conditional removal interview?? (although we did for sure bring the documents and handed over) isn't it enough that the it was only my dad and I showed up, that could also be a helpful factor to prove that we notified Immigration before their decision to approve his case, right?
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If those documents didn't get stored in his immigration file, or got lost, they could claim they never received them.
 
newacct said:
Interesting. But if they can't take away his green card, that means that he's a permanent resident, which means that his does qualify for naturalization; so if that's the case, shouldn't they fight the denial of naturalization too?
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He's a permanent resident who has mistakenly been granted that status, and there is no statute of limitations on denying naturalization on that basis.
 
If those documents didn't get stored in his immigration file, or got lost, they could claim they never received them.
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Reason I asked is because when he went for N400 interview, they asked for his divorce papers which makes me think that they might not have it in their file.. but this is non-sense since we submitted it on our interview with our attorney at the time present (do attorney keep a record of which things were submitted? it was 10 years ago...)
 
Euler Leon said:
I can not find any documents from long ago but yes she was my step mother and I believe she filed for me separately. I was AOSed while they were married but by the time at my conditional removal interview, we told the interviewer that my dad was divorced. but i know that my stepmom signed my petition for removal but was not at the interview since divorce. does this change anything about my case? or am i simply worrying too much even though I'm already a US citizen.
by the way we do reside in NJ
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Interesting. It is possible to do Removal of Conditions after divorce, but in that case one would apply on the "divorced" basis rather than the joint filing basis. So it is weird that your stepmother would have signed it. However, if you told them they were divorced, I presume they would have corrected it even if the form checked the wrong box.
 
so revocation of citizenship is a very very slim chance at this point, right?
even if INS somehow claims that they were not aware of my dad's divorce?
(does this automatically make me "not lawfully admitted for adjustment? "
because i figure as long as im a citizen i can provide relief for my dad
I have also grown up here all my life.. no where to return to..
 
USCIS knew he was divorced before they approved his green card, and now he has held the green card for more than 5 years, so it's too late for them to revoke his green card based on a mistake for which they had the material facts before green card approval.
However, they may still attempt to revoke his green card, so he may still end up in removal proceedings and have to fight it out based on the 5-year statute of limitations.
Click to expand...

yes this is true but only time we submitted his divorce document was during MY condition removal interview. (As stated on my original story, he still has not heard back about his greencard case at this time)
I have a feeling that whoever or whichever field office approved his greencard, must have not had this divorce paper in their file at the time of the approval.. isn't that why they are mentioning that he obtained his status 'not lawfully' are they claiming that we are at fault? not them?
 
Even if it is found that his permanent residence is invalid (which sounds likely), if you are 21 or over, there is a way he can stay and get a green card -- you can petition him. Since he is the parent of a U.S. citizen, and he entered legally, he will qualify for Adjustment of Status no matter what his status is. You can file I-130 and I-485 together at any time, and he will immediately be allowed to stay. I am not sure though if you do this whether you can do it now (before it is decided that he isn't LPR), or whether you have to wait. But if you wait until he is in removal, you would have to file it to the court and they are not guaranteed to consider it; whereas if you file it before they put him in removal, then it protects him against removal.
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as you mentioned if I can petition for him.. I'm sure USCIS is also aware of this policy.
Will they go out of their ways trying to revoke my dad's status knowing that he has a USC son (me) ?
and if they found reason and justification to challenge my dad.. will they challenge me in the similar ways?
i'm just going through anxiety because im starting a family soon in America...
 
you need to hire an experienced immigration attorney. your dad has a serious issue. you need a lawyer to see if there is kinda a relief which an immigration judge might grant your dad. IF you are a USC now, then worst case scenrio you will petition your dad. if you are not a usc, and you are eligible file right away. But, you need an immigration lawyer to review everything
 
Euler Leon
When you talk about extreme cruelty do you meant to say some kind of violence involved i.e. domestic violence if yes and if police case is filed, probably you can go through VAWA route (violence against womens act) and obtain green card
 
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