Case filed at edny under citizenship denial review by court, not a wom

S

smali

Registered Users (C)
My previous post in Nov 2008 was:

This is recent update on the ongoing saga on my I-751 waiver pending adjudication at VSC. Please bear with me, as it is little detailed case background

My joint I-751 was approved in Sep 2004 but I was divorced in Jul 2004. I filed first N-400 in Oct 2006 based on 5 yrs. I was placed in removal due to the above fact that I-751 approved in error after the divore date. I filed a second I-751 good faith waiver in Jul 2007, which is still pending at VSC although web site processing Sep 2007. My removal proceedings terminated in Nov 2007. Filed second N-400 in Dec 2007 concurrently anticipation that I-751 shall be approved before natz interview. The web site did update a month before natz but mine was not one adjudicated. 10 yr GC revoked in Jan 2008. Natz interview in Aug 2008. Went very well and passed. The IO stated that they have the power to adjudicate my I-751. Received natz denial based on that GC was revoked, Did not say anything about pending I-751. Now, given 30 days to appeal. I am thinking of these lines:

1. File the appeal and pay $605.
2. At appeal interview, ask officer to try to get the I-751 from VSC and adjudicate.
3. If officer does not agree to call for I-751 adjudication, file a motion at Federal District Court to force reevaluation of natz and force CIS to adjudicate I-751 waiver. First I-751 was approved without interview due to very good documentation of marriage. I was plaintiff in my divorce due to metal cruelty by USC spouse.

Any comments? I have been in contact with my congress and senator but are not very helpful. I have been remarried and now need to file for my current wife who is on F-1. What is most expeditious and prudent approach. what I am hoping is to receive either an I-751 approval in mail or interview call some time soon but am not sure if USCIS will do their job unless forced to. It also seems they filed I-751 waiver under my permanent GC file receipt number. Although they keep telling me on phone they know and I got temp stamp in passport, but the file was not present at natz interview.

PL ADVISE IN DETAIL.

Now, the post on Jan 7, 2009:

I went to appeal interview on Nov 7, 2008 and requested adjudicator to "Hold my N-400 in abeyance until I-751 is adjudicated". He denied my request and denied the appeal for N-400. Allowing to file in federal court under 5 USC Chp 7 (APA). I later found out that he "disregarded" the clear instruction in "Adjudicators Field Manual" Chapter 25, where it states that he should have kept the N-400 open and asked for my I-751 file to be adjudicated, before finalizing n-400. Any ways, I filed a complaint with Ombudsman office after wards. few months after the complaint, the USCIS filed office telephones my attorney that they want to interveiw me tomorrow for i-751 waiver, if possible. Went for interveiw and adjudicators verbally stated after some questions about my marriage that " I am satsified with your evidence and I am approving your petition". He asks whether he should send the file to natz or card production. my attorney states that natz will be appealed in federal court, so he shall send it for card production. he did not give me any thing in writing, neither he has sent any thing in mail. now i want to sue cis for blatant disregard to their field manual. does any one has a similar federal court case link or any comments. the case is complex, but there seems to be light at the end of tunnel. how to overcome the cis denial theory that at the time of filing n-400 my PR status was terminated, which is not correct (AND AGSINT BIA CASE LAW) as i did had pending i-751 and status can not be terminated until i-751 is decided or ij terminates status(as per BIA decisions).

update as of 2/9/2009.

NOW THE CASE WAS FILED at eastern dist of ny, fed court, ON 1/14/2009 BY my LAWYER AND AUSA was SERVED ON 1/22/2009 via certified mail. LAWYER DOES NOT RETURN EMAILS. CAN I find out about ausa and CONTACT AUSA MY SELF. whats the best way. i also sent copies of complaint to ombundsman as well. IS IT PREMATURE TO CONTACT ausa NOW. SHALL I WAIT OR THREATEN MY LAWYER TO PERFORM HIS DUTY BY WAY OF A COMPLAINT TO NYC BAR. PL ADVISE COOL MINDEDLY. THANKS. I NEED MY CITIZENSHIP FAST TO FILE FOR MY WIFE.

HOW MANy PEOPLE HAVE A SUCCESFUL 5 USC REVIEW CASE. IS ANY USC 5 CASE REPORTED ON THIS FORUM AS I CAN ONLY SEE WOM CASES. MINE IS NOT WOM?
 
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If you have a lawyer, let him handle the case or fire him and do everything yourself. AUSA won't talk to you if you are represented by an attorney. Courts can overturn the denial and do it often.
 
No, This is Malik v. Quarantillo case? If you need I can send you the copy of case or you can see it on PACER? Please provide your expert advice how quickly will it be approved for oath? Thanks
 
The government has 60 days to answer your complaint. Then they will more likely file a motion to dismiss or motion for summary judgment. Your attorney will file a cross-motion and then the court will decide. Do not anticipate a quick resolution unless USCIS agrees to reopen your case without the court order. Expect minimum 4 months from 1/22 to court order. If you have an emergency situation, talk to your lawyer about it.
 
How can you have a case if your I-751 was approved by mistake because indeed it was approved after the divorce?
 
WBH said:
Do you need to inform USCIS of the divorce before the approval?
Click to expand...
You notify USCIS when you file the petition by answering question d on form:

I entered into the marriage in good faith but the marriage was terminated through divorce or
annulment.
 
Bobsmyth said:
You notify USCIS when you file the petition by answering question d on form:

I entered into the marriage in good faith but the marriage was terminated through divorce or
annulment.
Click to expand...

Could be tha case that in case of OP, the sequence is:

Filing the petition-divorce-approval. So USCIS, when looing back,
think the approval is not correct.
 
When OP re-applied for naturalization in Dec 2007, his GC was revoked in Jan 2008 based on denial of first I-751. Instead of keeping N-400 open while second I-751 was being adjudicated, USCIS denied N-400 (on basis on revoked GC). Since the second I-751 has now been apporved he's waiting for N-400 denial to be overtuned in Federal court.
So the question is whether it's best to wait for courts to take action, or just go ahead and file a new N-400 alltogether. Time and money are the obstacles in both.
 
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Bobsmyth said:
Since the second I-751 has now been apporved he's waiting for N-400 denial to be overtuned in Federal court.
So the question is whether it's best to wait for courts to take action, or just go ahead and file a new N-400 alltogether. Time and money are the obstacles in both.
Click to expand...

Can one file two N-400 with processing time overlapping?
 
Not sure what you mean by file two N-400 with overlapping processing time. The OP first applied for naturalization in Oct 2006, which was denied (I assume ) due to being placed in removal proceedings. He reapplied in Dec 2007 (after removal proceedings ended), but was denied again (this time due to GC being revoked in Jan 2008). He has filed appeal in Federal court and is currently waiting for answer. The alternative is to file for a new N-400 altogether. You can always withdrawal one if one gets approved before the other. Technically with USCIS he would only have one N-400 open..the other one is closed, unless it gets overturned by federal courts.
 
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Bobsmyth said:
proceedings. He reapplied in Dec 2007 (after removal proceedings ended), but was denied again (this time due to GC being revoked in Jan 2008).
Click to expand...

How come USCIS still revoked GC in 2008 if prior removal proceeding ended?
It looks like a dead loop.

Bobsmyth said:
You can always withdrawal one if one gets approved before the other. Technically with USCIS he only has one N-400 open..the other one is closed, unless it gets overturned by federal courts.
Click to expand...

Assuming money is not an issue and it is legal to, I think OP should appeal the denial of previous N-400 and file a new N-400 at the same time.
(hope that dead loop come to a stop, otherwise it can go on for ever)
 
WBH said:
How come USCIS still revoked GC in 2008 if prior removal proceeding ended?
It looks like a dead loop.
Click to expand...
GC was revoked based on initial I-751 being denied. GC validity is based on I-751 , not on (or end of) removal proceedings.

WBH said:
Assuming money is not an issue and it is legal to, I think OP should appeal the denial of previous N-400 and file a new N-400 at the same time.
(hope that dead loop come to a stop, otherwise it can go on for ever)
Click to expand...
Only difference being is that you can try suing for costs in court, whereas with new application it's just another expense.
 
Bobsmyth said:
GC was revoked based on initial I-751 being denied. GC validity is based on I-751 , not on (or end of) removal proceedings.
Click to expand...

But ins't the case the removal proceeding was initiated because of the intial I-751 being denied? So it seems to me that teh action was taken twice
because of the same issue. And I don't know what is the actually difference
between removal proceeding and revoking GC? Removeal means ypur lose GC and
revoking GC means you have to be removed.
 
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The removal proceeding is a hearing that allows you to plead your case, whereas GC revocation is actual act of GC being revoked. The order is I-751 denial > placed in removal proceedings > GC revoked (based on I-751 denial, not on removal proceedings). I don't think the GC should have been revoked since a second I-751 was pending (although I could be wrong on this).
 
Bobsmyth said:
The removal proceeding is a hearing that allows you to plead your case, whereas GC revocation is actual act of GC being revoked.
Click to expand...

Still can not get it. If you plead your case and win in a removal proceeding,
it should mean USCIS shoudl allow you to keep your GC; otherwise what is
the point of pleading anyway? If the removal proceeding does not end up
with removing you, why should USCIS still revoke your GC after that?
SHoudl they just deny your plea in teh removal proceeding and remove
you in the frist place?

It does not make sense to me and it looks like a dead loop
 
They should've revoked GC before/during the removal proceeding. It does not make sense that USCIS decided to do it later, which created this issue. The OP should be fine as long as new I-751 is approved. It can be approved after the divorce, Bobsmyth is right on with his comments. I haven't seen the complaint, but I would've filed wom for I-751+appeal for N-400 denial in court.
 
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lazycis said:
They should've revoked GC before/during the removal proceeding. It does not make sense that USCIS decided to do it later, which created this issue. .
Click to expand...

So there is a seperate legal process called green card revocation different than removal/deportation proceeding?
 
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