N-400 denial , error by USCIS

Z

zhanni

New Member
Hi,

Can anyone tell me if I am correct;
I was arrested in 2005, and convicted in 2007. It took 2 years to go through all teh courts etc.

I filed N-400 5 years after I was arrested, they denied my application, and wrote that I can reappy in 2012, which is 5 years after conviction...
Does anybody know the answer?
 
They are correct, it's 5 years after the conviction, not 5 years after you committed the offense or got arrested for it.
 
It depends what were you charged and convicted of. What makes you think USCIS made an error?
If your conviction makes you ineligible for naturalization you would have to wait 5 years after your conviction before you can apply.
 
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The fact that they told you that you could re-apply in the future is good news. They could have sent you a Notice To Appear (NTA) to initiate Removal Proceedings.

However, the fact that the incident threw up a 5 year bar means that it is not exactly minor OR it is not a first offense. Either way, avoid any future incidents.
 
I consulted with 2 lawyers, and they both told me 5 years after arrest....I contacted teh lawyer again, when i recieved the denial, and he told me that is an error...and I must go to USCIS, and make them somehow to reopen the file and review it again..
 
zhanni said:
I consulted with 2 lawyers, and they both told me 5 years after arrest....I contacted teh lawyer again, when i recieved the denial, and he told me that is an error...and I must go to USCIS, and make them somehow to reopen the file and review it again..
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Are they licensed immigration attorneys? If so, stay away from them, especially if they suggest for you to appeal.
 
zhanni said:
actually he is one of the best lawyer in Atlanta...and has good reputation....
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He staked his reputation on a rubbery chicken, one that you can never finish chewing....:) You have no case against USCIS, but that lawyer has plans for your money, by convincing you to create a bogus case. Moral character requires 5 years of clean slate, arrest and conviction are different animals. If you were convicted in 2005, then you could have had a case against USCIS. Why were you convicted 2 years later? If I were you, I want my punishment as soon as possible.
 
GMC is not all black letter law, there is much discretion involved. That means grey areas. Look up the precise 8 CFR or INA sections cited as the basis for denial. If any section cited includes ANY discretion, then you are most likely not going to prevail on appeal. Abuse of discretion must be arbitrary, capricious, and contrary to law in order to be overturned. Is the decision so unreasonable that any finder of fact MUST be compelled to find to the contrary? Citizenship is a precious prize in immigration law and is most difficult to take back so, it will not be given lightly.

You never specificed what the criminal conviction was. You did not provide a history or any context. You did not cite the criminal code that you were charged with or that which you were ultimately convicted of. You did not specify the sentence imposed. You did not provide details as to compliance with terms of punishment. You had to provide final dispositions in connection with the N-400. Such documents can provide further information that the officer may have taken into consideration. Does it show steady compliance with probation and payment of fines? OR does it show a series of bench warrants for probation violations and late payment of fines? You have the information. If you want anyone here to jump on your bandwagon, you had better spill your guts and provide full details. If you can show an abuse of discretion---state your case, blow by blow with full disclosure of all the facts. If you had a competent attorney they would have sat you down and said this to you already. Be afraid of an attorney that tells you that they can fix any problem as long as your checks don't bounce.
 
it is 5 years after the conviction date. but some offices have naturalized people after 3 years of conviction if married to a US citizen.
 
pleasehelp08 said:
it is 5 years after the conviction date. but some offices have naturalized people after 3 years of conviction if married to a US citizen.
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I would like you to attach the memo advising officers to naturalize spouses of US citizen, who committed crimes without having to complete the required 5 years of moral uprightness. It has never happened, because the principle of blind justice is important to the US, the rule of law would be a mockery of the justice system, if marriage offers privileges even on criminal frontiers.
 
Regarding GMC period:

8 CFR 316.10 refers to the "statutorily described period" and specifically includes time after filing up through Oath.

INA 316(a)(1) refers to a five years, (2) extends it up to time of admission to citizenship (Oath) and (3) mentions GMC for all periods referred to in this subsection.

INA 319(a) refers back to, overtakes and replaces INA 316(a)(1) and shortens the time from 5 years to 3 years.

Therefore, the "statutorily described period" becomes 3 years rather than 5 years for the qualified applicant who is the spouse of a USC. This includes, continuous residence, physical presence and GMC.

Other bases for naturalization have a variety of different requirements and statutorily described periods. INA 328, 329, 329A, 316(b)(c) or (f), 317, 319(b)(c)(d)(e), 324, 325, 326, 327, or lastly, 322 for which no GMC is required.

NOTE: INA 320 (current and former) and former 321 are also "derivative naturalization" statutes that require no GMC but they do not require an Oath, so seem a bit out of place in this discussion.
 
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Al Southner said:
I would like you to attach the memo advising officers to naturalize spouses of US citizen, who committed crimes without having to complete the required 5 years of moral uprightness. It has never happened, because the principle of blind justice is important to the US, the rule of law would be a mockery of the justice system, if marriage offers privileges even on criminal frontiers.
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if you do some research, you will find cases where applicant had conviction(s) but were naturalzed after 3 years of the conviction date because married to a US Citizen. I know one personally and read about atleast 10 cases.
 
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