Mathematical calculation could easily be interpreted as (entry date - exit date) by an IO.
Well in the OP's case it certainly appears to have been left to the discretion of the IO to calculate physical presence.
If USCIS leaves it to individual IOs to decide that, that means there are inconsistent interpretations of it being applied by different IOs, and the court won't accept that for a mathematical rule. With USCIS being unable to demonstrate a consistent operating procedure that interprets it one way or the other, the courts will hold them to their published instruction (in the absence of overriding law/precedent/etc.).
The case is already adjudicated and a decision has been rendered based on the IO's calculation method... but this is not an area of discretion that will be upheld by the courts, due to it being a mathematical computation that demands consistency.
Multiple issues here ...
#1. If a denial letter has been issued, talking to an IO will only help clarify the calculations. I do not think they are going to withdraw their decision without going through whatever their appeal process is.
#2. I do not think an appeal is going to result in a "de novo" examination unless there was evidence of negligence on part of the original IO, or there was a serious mistake. The difference because of the travel days does not cut it in my eyes, but I am not a lawyer. If the borderline calculations are indeed borderline, I do not think the CIS is going to turn on each other. That's just how it is.
However, you might be helping CIS create a precedent which they can use next time.
#3. You never talked about how your interview went. You also do not want to talk about other aspects (continuous residence) of the case. Depending on the tone, you would know whether there is more ammunition in CIS's armor. If there is, apply afresh. If this is the only issue, go ahead and appeal.
But on the whole I agree with you. If CIS asks you not to count travel days, they should adhere to that. Whether it is an easy to win battle with an informal appeal is a difficult question.
I'd be very interested in input from anyone who has been out of the us close to 50% of the 5 years preceding their application.
My situation is thus:
Sent application on 1/10/11 ( I live in NYC). Had interview on 4/6 and received denial on 5/1.
The reason for my denial was that according to their calculations I'd been out of the country for >50% of the 5 years preceding my application. My calculations, which I have checked ad infinitum showed me as out for 897 days (in 36 trips). That's clearly close to the 50% 913 days rule but it is still under it and the rules are the rules. Their calculations said that I'd been out for 933 days.
In my calculations, I'd taken their guidance (in naturalization brochure) that days spent partially in the US count as full days. Their calculations seem to have only included one of my travel days as being in the US - their number is precisely 36 days over mine - i.e. one per trip - so they appear to have counted one of my travelling days per trip as being out.
I phoned the customer service number to talk to a second level officer about it and he suggested making an infopass to go and talk about it as he said it sounded like a simple calculation error. I don't really want to appeal if I can avoid it as $600 is a bit steep to pay for a calculation mistake. I'm going to see them next Friday in NYC.
So be interested to know - does anyone have any case law examples for how the 'days partially spent in the US' thing can be worked out - or have experience with outcomes like this - i.e. can they revisit the decision without a formal appeal when it's a simple mistake like this? Given the officer suggested an infopass before appeal, I am hopeful - as everything else with my case was in order.
Opinions with specific examples - would be very interested to hear. This appears to be, on the surface of it, that they are not counting days in/out in accordance with their own guidance.
There are no issues here related to continuous residence - this is just about physical presence
It comes back to my original point that both exit and entry partial days can't possibly be used as full days since in theory someone who had 915 trips of 24 hours outside the US would be able to (incorrectly) claim that since partial days are full days, total time outside the US is zero. The same logic can be used for larger multiple trips, thus providing an extra day for every trip.
Whether this individual will appeal is one thing, and what the court decision would be is another. I agree that appealing it up to the BIA or Federal court level is unlikely unless a lawyer decides to take the case pro bono for the sake of the reputation of arguing/winning a precedent in a high court.The case is already adjudicated and a decision has been rendered based on the IO's calculation method.
It would take an appeal to first get a hearing first the BIA. The BIA can still sustain the denial to which the only recourse left for the applicant is the federal courts, something I doubt most applicants have the time and money for and willingness to do.
Did the same legal advice provide you guidance on physical presence requirement and how it may be calculated by USCIS?- I've already taken legal advice on my application prior to submitting and my personal/business situation means that although I travelled a lot....
However, in this case the vagueness is resolved by the underlying law which says the applicant must have been physically present in the US for at least half of the statutory period (albeit not completely resolved in all borderline cases, e.g. somebody with 913 days where there were 2 leap years in the 5 year period).
Did the same legal advice provide you guidance on physical presence requirement and how it may be calculated by USCIS?
I don't want to talk about continuous residence as I don't need advice there - I've already taken legal advice on my application prior to submitting and my personal/business situation means that although I travelled a lot, continuous residence is not in question - I don't need advice on this part which is the only reason I'm not providing the extended detail.
There have been reported instances where an obvious error by an IO that resulted in a denial was overturned via Infopass appointment without having to go through formal appeals process or payment of the appeal fee. The OP has nothing to loose by going to an Infopass and requesting to speak with a supervisor regarding how partial days are calculated. In fact, this type of informal appeal process has been acknowledged by USCIS.Since the previous N-400 has been formally denied, you can't "straighten things out" with a simple INFOPASS visit, even if the denial was due to a USCIS error.
It comes back to my original point that both exit and entry partial days can't possibly be used as full days since in theory someone who had 915 trips of 24 hours outside the US would be able to (incorrectly) claim that since partial days are full days, total time outside the US is zero. The same logic can be used for larger multiple trips, thus providing an extra day for every trip.
I can calculate with precision in my 5 year period what the total number of days and thus what 50% is.
That may be true, but another applicant may conclude that since the guide uses the term 30 months to describe half the statutory period of 5 years (60 months), and USCIS generally considers 1 month to equal 30 days, the applicant can incorrectly assume that 30 months equals 900 days. This has come up before in previous posts where an applicant was denied based on the applicants incorrect assumption that 30 months (half of 5 years) must mean 900 days, not 913.
Given the subjective nature of continuous residence, I find it strange that you could have nearly 900 days outside the US and be so 100% confident that they can find no issue with your continuous residence. Remember that simply keeping each trip under 6 months doesn't mean you're safe for continuous residence. Unless you have some rock-solid exception like N-470 or working abroad for the US government/military, you're being overconfident.
Such trips (under 24 hours) would make sense and are acceptable for someone living in the US and commuting daily to Mexico or Canada for work regardless of how many trips under 24 hours there have been.In your other example, if someone had taken 915 trips of 23 hours - then according to the form (which asks specifically for trips of 24 hours or more) then most rational people would not agree that this individual had been out of the country for 0 days.
Yes, but my only point there is that the statute is more specific than their guide in terms of talking about a period of half the time rather than expressing it in months - whereas there is no similar increase in specificity for the partial days thing...
Is it? INA 316.2(a)(4) specifically uses the term 30 months:
(4) Has been physically present in the United States for at least 30 months of the five years preceding the date of filing the application.
http://law.justia.com/cfr/title08/8-1.0.1.3.68.html
This can lead to an applicant to conclude that 30 months is 900 days.
Sec. 316. [8 U.S.C. 1427]
(a) No person, except as otherwise provided in this title, shall be naturalized, unless such applicant, (1) immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his application has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months, (2) has resided continuously within the United States from the date of the application up to the time of admission to citizenship, (3) during all the periods referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.