You should not dismiss the lawsuit voluntarily until you get an oath letter. Eventually the court will dismiss it, but you do not have to do anything.
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Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
- Thread starter Publicus
- Start date
You should not dismiss the lawsuit voluntarily until you get an oath letter. Eventually the court will dismiss it, but you do not have to do anything.
Motion on Expedited Hearing
Lazycis and Other,
In the “Motion of Expedited Hearing”, it is mentioned that “Defendants have represented to Plaintiff that the background check on the Plaintiff is complete and satisfactory and there are no grounds on which Defendants can object to the Petition to Naturalize”. In my case I have a letter from FBI mentioning of the completion of the check on a certain date but they don’t tell the “Satisfactory Results” to anyone except USCIS; should I take that “Satisfactory Results” out of it OR when USCIS called me for interview then it means they don’t have anything offensive against me so I should keep it as.
Also, can I use upcoming election as an excuse to do “Motion of Expedited Hearing”. Please explain…
Lazycis and Other,
In the “Motion of Expedited Hearing”, it is mentioned that “Defendants have represented to Plaintiff that the background check on the Plaintiff is complete and satisfactory and there are no grounds on which Defendants can object to the Petition to Naturalize”. In my case I have a letter from FBI mentioning of the completion of the check on a certain date but they don’t tell the “Satisfactory Results” to anyone except USCIS; should I take that “Satisfactory Results” out of it OR when USCIS called me for interview then it means they don’t have anything offensive against me so I should keep it as.
Also, can I use upcoming election as an excuse to do “Motion of Expedited Hearing”. Please explain…
After a complained is filed and served, immediately file a motion to shorten time and to schedule a hearing on your application. Ask court to shorten time for defendants to answer to 30 days and to schedule a hearing on your application the next day (or shortly after) an answer is filed. You can use upcoming elections as a ground to shorten time as well as nature of the suit (you can quote statement of Rep. Morrison).
As for name check results, use FOIPA results and rap sheet to prove that you have clean criminal history. Name check results are not relevant because they are not required by laws and regs (remember, background check = FP check in regulations).
As for name check results, use FOIPA results and rap sheet to prove that you have clean criminal history. Name check results are not relevant because they are not required by laws and regs (remember, background check = FP check in regulations).
N400-Misery
Registered Users (C)
Somewhat Positive news
Friends,
Some of you may not consider this to be positive (Knowing the culture of the USCIS, I can't blame you).
I have a friend here in Houston, who applied for his Naturalization on
04/25/2006. He never wrote to anyone and barely scheduled couple of
Infopass visits. He just received his Interview letter for end of July.
I guess the USCIS-FBI joint plan is right on target. They stated that they
would process anyone with 2 or more years in July, 08.
Please don't let this story stop you from filing your WoM, as I truly believe
the WoM effects will be for decades to come.
E.O.M
---------------------------------------------
N400 @ TSC
PD: 11/!!/06
FP: 12/!!/06
IL: ???????
WoM: 05/19/08
---------------------------------------------
Friends,
Some of you may not consider this to be positive (Knowing the culture of the USCIS, I can't blame you).
I have a friend here in Houston, who applied for his Naturalization on
04/25/2006. He never wrote to anyone and barely scheduled couple of
Infopass visits. He just received his Interview letter for end of July.
I guess the USCIS-FBI joint plan is right on target. They stated that they
would process anyone with 2 or more years in July, 08.
Please don't let this story stop you from filing your WoM, as I truly believe
the WoM effects will be for decades to come.
E.O.M
---------------------------------------------
N400 @ TSC
PD: 11/!!/06
FP: 12/!!/06
IL: ???????
WoM: 05/19/08
---------------------------------------------
Lazycis,
Where should I ask the court to shorten time for Defendants; like in the main Complaint or in the “Motion of Expedited Hearing”?
Also, could you please get me that link to Rep. Morrison statement; Thanks so much
Where should I ask the court to shorten time for Defendants; like in the main Complaint or in the “Motion of Expedited Hearing”?
Also, could you please get me that link to Rep. Morrison statement; Thanks so much
After a complained is filed and served, immediately file a motion to shorten time and to schedule a hearing on your application. Ask court to shorten time for defendants to answer to 30 days and to schedule a hearing on your application the next day (or shortly after) an answer is filed. You can use upcoming elections as a ground to shorten time as well as nature of the suit (you can quote statement of Rep. Morrison).
As for name check results, use FOIPA results and rap sheet to prove that you have clean criminal history. Name check results are not relevant because they are not required by laws and regs (remember, background check = FP check in regulations).
Lazycis,
Where should I ask the court to shorten time for Defendants; like in the main Complaint or in the “Motion of Expedited Hearing”?
Also, could you please get me that link to Rep. Morrison statement; Thanks so much
You can do both, but definitely you should do it in Motion.
Hovsepian court quotes the statement in its opinon
"A central purpose of the statute was to reduce the waiting time for naturalization applicants. See H.R. Rep. No. 101-187, at 8 (1989); 135 Cong. Rec. H4539-02, H4542 (1989) (statement of Rep. Morrison)."
U.S.A. v. Hovsepian, 359 F.3d 1144, 1161 (9th Cir. 2004) (en banc)
"As the representative who introduced the proposed statute on the House floor noted, “n this legislation, it is the applicant, not the government, who decides the place and the setting and the timeframe in which the application will be processed.” 135 Cong. Rec. H4539-02, H4542 (statement of Rep. Morrison). Allowing the INS to continue to exercise jurisdiction over an application even after the naturalization applicant has elected to have the district court decide the application would frustrate the sponsors’ intent." U.S.A. v. Hovsepian, 359 F.3d 1144, 1163 (9th Cir. 2004) (emphasis in original).
Lazycis,
Doesn't that Morrison' statement sound like both, court as well USCIS, have the jurisdiction once 1447b is filed if that's the case then USCIS can deny the case OR am I interpreting it differently...
Doesn't that Morrison' statement sound like both, court as well USCIS, have the jurisdiction once 1447b is filed if that's the case then USCIS can deny the case OR am I interpreting it differently...
You can do both, but definitely you should do it in Motion.
Hovsepian court quotes the statement in its opinon
"A central purpose of the statute was to reduce the waiting time for naturalization applicants. See H.R. Rep. No. 101-187, at 8 (1989); 135 Cong. Rec. H4539-02, H4542 (1989) (statement of Rep. Morrison)."
U.S.A. v. Hovsepian, 359 F.3d 1144, 1161 (9th Cir. 2004) (en banc)
"As the representative who introduced the proposed statute on the House floor noted, “n this legislation, it is the applicant, not the government, who decides the place and the setting and the timeframe in which the application will be processed.” 135 Cong. Rec. H4539-02, H4542 (statement of Rep. Morrison). Allowing the INS to continue to exercise jurisdiction over an application even after the naturalization applicant has elected to have the district court decide the application would frustrate the sponsors’ intent." U.S.A. v. Hovsepian, 359 F.3d 1144, 1163 (9th Cir. 2004) (emphasis in original).
Lazycis,
Doesn't that Morrison' statement sound like both, court as well USCIS, have the jurisdiction once 1447b is filed if that's the case then USCIS can deny the case OR am I interpreting it differently...
Quite the contrary, the statement says that the INS loses control over the process after lawsuit is filed
yellowmango
Registered Users (C)
Application Denied after dismissing district court lawsuit
I have more problems with my N400 application again.
My application has been denied on the grounds of getting divorced from my US citizen wife.
I went in for another interview with USCIS on May 28th, 2008 (Compliance Review), during which officer interviewing me asked me all sorts of questions pertaining to my marriage with my ex-wife, and then she asked me to wait outside while she called up my ex-wife and asked her similar questions. After that she called me back in her office and let me know that she is satisfied about our bona fide marriage and that she will let the department that asked her for this review know that everything is o.k.
After this, I next heard on June 18th, 2008 from a paralegal in the US attorney's office that they have been informed by USCIS that my name check has been cleared by the FBI and that the USCIS in now ready to adjudicate my case. In order for them to finish the processing they needed me to dismiss my 1447 district court case. They sent me a stipulation form to sign, which I'm quoting below, and which I did sign, and which the judge also signed on June 20th.
This is the text of the rejection letter, dated June 27th, that I got from them today:
I was not aware that the compliance review that I attended on May 28th, two and a half years after the original interview, would be considered a second interview or an extension of the original interview. I went with all my good intention of providing them all the information that they needed to adjudicate case.
I am trying to consider what my options are now.
1) I could file an appeal using Form N336, and pay the $605.
2) I could file a new N400 application under the five year residency since I’ve been a Permanent Resident for six years now, and pay the $675 for a new N400 application.
3) I could ask the district court to re-open my case as it was dismissed without prejudice. I don’t know if this is even an option given that my application has been denied. If I can get the case re-opened, I will need to do research as to what the process is and if I will need to file an amended complaint, and pay the filing fee of $350, and whether I will have to re-serve all the defendants.
According to 8 USC 1430(a), I am eligible if I meet the all the requirements under 8 USC 1427 (a), except paragraph 1 of that provision. I meet the requirements in this case.
However, under 8 CFR 319.1(b)(2), I am not eligible since I got divorced subsequent to my filing the application and before I got naturalized.
Why is there this discrepancy? What is the difference between CFR and USC? In a federal district court, which set of laws takes precedence?
$605 is a lot of money for me which I can hardly afford to spend on appealing this or $675 for filing a new N400 application. I am tired of constantly fighting an uphill battle. I am at my wit’s end. Lazycis, and anybody else well informed, what do you guys think is the best course of action for me?
Timeline:
March 2001: Got married to my US citizen wife
July 2002: Became a conditional US Permanent Resident
Late 2004: Conditions on Permanent Residence removed
July 13, 2005: Filed N400 application under the three year rule
October 7, 2005: Fingerprints
December 8, 2005: Citizenship interview and English, US history and civics test
July 2007: Got divorced from my wife
March 3, 2008: Filed district court lawsuit under 8 USC 1447b
May 7, 2008: Signed stipulation to extend deadline for defendant’s response to June 30, 2008
May 28, 2008: Appeared for Compliance Review at local USCIS office (USCIS might be considering this a second interview or an extension of the original interview)
June 18, 2008: Informed by US attorney’s office that USCIS has received my cleared name check from FBI, and is ready to finish adjudicating my case if I dismiss the district court case
June 20, 2008: Case dismissed without prejudice, under stipulation by all parties
June 27, 2008: USCIS rejected my application based on not being married to my US citizen wife any longer
I have more problems with my N400 application again.
My application has been denied on the grounds of getting divorced from my US citizen wife.
I went in for another interview with USCIS on May 28th, 2008 (Compliance Review), during which officer interviewing me asked me all sorts of questions pertaining to my marriage with my ex-wife, and then she asked me to wait outside while she called up my ex-wife and asked her similar questions. After that she called me back in her office and let me know that she is satisfied about our bona fide marriage and that she will let the department that asked her for this review know that everything is o.k.
After this, I next heard on June 18th, 2008 from a paralegal in the US attorney's office that they have been informed by USCIS that my name check has been cleared by the FBI and that the USCIS in now ready to adjudicate my case. In order for them to finish the processing they needed me to dismiss my 1447 district court case. They sent me a stipulation form to sign, which I'm quoting below, and which I did sign, and which the judge also signed on June 20th.
The paralegal made no mention of USCIS intent to deny the application and I went along with the dismissal under the assumption that I would get approved since my FBI name check had cleared.Stipulation to Dismiss:
Plaintiff, appearing pro se, and Defendants, by and through their attorneys of record, hereby stipulate, pursuant to Fed. R. Civ. P. 41(a), to dismissal of the above-entitled action without prejudice in light of the fact that the United States Citizenship and Immigration Services is now prepared to adjudicate Plaintiff’s application for naturalization and agrees to do so within 30 days of the dismissal of this action. The parties shall bear their own costs and fees.
This is the text of the rejection letter, dated June 27th, that I got from them today:
Your application is hereby denied in accordance with the Title 8 Code of Federal Regulations Section(s) listed below:
You applied for naturalization under Section 319(a) of the Act, as the spouse of a United States citizen. On December 8, 2005, and again on May 28, 2008, you were interviewed by officers of United States Citizenship and Immigration Services (herein USCIS). During the latter interview, you testified that you had terminated your marriage to your citizen spouse, in July of 2007.
Section 319(a) of the Act states in part that "[a]ny person whose spouse is a citizen of the United States may be naturalized upon compliance with all the requirements of this title...if such a person 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 three years, and during the three years immediately preceding the date of filing his application has been living in marital union with the citizen spouse..."
Title 8 Code of Federal Regulations, part 319.1(b)(2), clarifies that"[a] person is ineligible for naturalization as the spouse of a United States citizen under section 319(a) of the Act if, before or after the filing of the application, the marital union ceases to exist due to death or divorce..."
Inasmuch as you are no longer legally married to a United States citizen, you cannot meet the marital union requirements of Section 319(a) of the Act. Therefore, your application for naturalization is denied. This decision is made without prejudice towards the filing of a new application, should you wish to reapply under Section 316 of the Act. Five years lawful resident status is required at the time of filing. This decision is made without prejudice toward the filing of a new application. However, eligibility must again be established.
If you decide to request a review hearing on this decision pursuant to Section 336(a) of the Act, you must file a request for a hearing within 33 days of the date of this notice. A request for hearing may be made to the District Director of the Immigration and Naturalization Service at the above address on the enclosed Form N-336, Request for Hearing on a Decision in Naturalization Proceedings under Section 336 of the Act, together with a fee of $605.00. A brief or other written statement in support of your request may be submitted with the Request for Hearing. If no request for hearing is filed within the time allowed, this decision is final.
I was not aware that the compliance review that I attended on May 28th, two and a half years after the original interview, would be considered a second interview or an extension of the original interview. I went with all my good intention of providing them all the information that they needed to adjudicate case.
I am trying to consider what my options are now.
1) I could file an appeal using Form N336, and pay the $605.
2) I could file a new N400 application under the five year residency since I’ve been a Permanent Resident for six years now, and pay the $675 for a new N400 application.
3) I could ask the district court to re-open my case as it was dismissed without prejudice. I don’t know if this is even an option given that my application has been denied. If I can get the case re-opened, I will need to do research as to what the process is and if I will need to file an amended complaint, and pay the filing fee of $350, and whether I will have to re-serve all the defendants.
According to 8 USC 1430(a), I am eligible if I meet the all the requirements under 8 USC 1427 (a), except paragraph 1 of that provision. I meet the requirements in this case.
However, under 8 CFR 319.1(b)(2), I am not eligible since I got divorced subsequent to my filing the application and before I got naturalized.
Why is there this discrepancy? What is the difference between CFR and USC? In a federal district court, which set of laws takes precedence?
$605 is a lot of money for me which I can hardly afford to spend on appealing this or $675 for filing a new N400 application. I am tired of constantly fighting an uphill battle. I am at my wit’s end. Lazycis, and anybody else well informed, what do you guys think is the best course of action for me?
Timeline:
March 2001: Got married to my US citizen wife
July 2002: Became a conditional US Permanent Resident
Late 2004: Conditions on Permanent Residence removed
July 13, 2005: Filed N400 application under the three year rule
October 7, 2005: Fingerprints
December 8, 2005: Citizenship interview and English, US history and civics test
July 2007: Got divorced from my wife
March 3, 2008: Filed district court lawsuit under 8 USC 1447b
May 7, 2008: Signed stipulation to extend deadline for defendant’s response to June 30, 2008
May 28, 2008: Appeared for Compliance Review at local USCIS office (USCIS might be considering this a second interview or an extension of the original interview)
June 18, 2008: Informed by US attorney’s office that USCIS has received my cleared name check from FBI, and is ready to finish adjudicating my case if I dismiss the district court case
June 20, 2008: Case dismissed without prejudice, under stipulation by all parties
June 27, 2008: USCIS rejected my application based on not being married to my US citizen wife any longer
8 USC § 1430. Married persons and employees of certain nonprofit organizations
(a) Any person whose spouse is a citizen of the United States, or any person who obtained status as a lawful permanent resident by reason of his or her status as a spouse or child of a United States citizen who battered him or her or subjected him or her to extreme cruelty, may be naturalized upon compliance with all the requirements of this subchapter except the provisions of paragraph (1) of section 1427 (a) of this title if such person 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 three years, and during the three years immediately preceding the date of filing his application has been living in marital union with the citizen spouse (except in the case of a person who has been battered or subjected to extreme cruelty by a United States citizen spouse or parent), who has been a United States citizen during all of such period, and has been physically present in the United States for periods totaling at least half of that time and has resided within the State or the district of the Service in the United States in which the applicant filed his application for at least three months.
So it should not matter what happened with the marriage after the application was filed. Yellowmango is still eligible for naturalization.
See also
8 CFR 335.3(b)
(b) Rather than make a determination on the application, the Service officer may continue the initial examination on an application for one reexamination, to afford the applicant an opportunity to overcome deficiencies on the application that may arise during the examination. The officer must inform the applicant in writing of the grounds to be overcome or the evidence to be submitted. The applicant shall not be required to appear for a reexamination earlier than 60 days after the first examination. However, the reexamination on the continued case shall be scheduled within the 120-day period after the initial examination, except as otherwise provided under Sec. 312.5(b) of this chapter.
So technically yellowmango can refuse to go because the second examination should be within 120 days after the initial examination. In any case, 1447(b) suit will not let USCIS to deny N400. See this case http://bibdaily.com/pdfs/Szpak 7-25-07.pdf
The language of INA319(a) and regulation of 8 CFR 319.1 (b) (2) make it clear that the marriage must be valid up until naturalization when filing under 3 year rule, even if your case may be delayed by name check for several years. Regulations (CFR) enforce the laws (USC), not the other way around.
If there is an absence or contradiction between USC and CFR, CFR usually prevails.
If there is an absence or contradiction between USC and CFR, CFR usually prevails.
I have following as the named Defendants.
1. MICHAEL CHERTOFF, DHS
2. JONATHAN SCHARFEN, USCIS
3. MICHAEL B. MUKASAY, US AG
Please bear with me as I'm getting into questions that may be obvious to the veteran here:
1. MICHAEL CHERTOFF, DHS
2. JONATHAN SCHARFEN, USCIS
3. MICHAEL B. MUKASAY, US AG
Please bear with me as I'm getting into questions that may be obvious to the veteran here:
- When filling up summons form available from MA court's web site , should I change defendants's name in the Plaintif v Defendants section before sending it to each defendant? So in other words, should fill in Plaintiff v. Chertoff when sending Summons to chertoff, Plaintiff v. SHARFEN when sending to SHARFEN and Plaintiff v. MUKASAY when sending it to US AG? I think I don't need to change the Defendant's name but should put in individual defendant's name and address in the To: section.
- Do I need to send summons in addition to complaint+exhibits to Office of General Counsel, US DHS, Washington, DC 20258 AND local US attorney's office?
- After filing the Complaint, I will get a case number assigned. Does the clerk need to stamp the summons as well or can I just put the case numbers on them and mail them to defendants?
- The 60 day clock starts from the date when AUSA receives the summons so When do I serve the AUSA? I wouldn't know who she/he is at the time of filing?
- I have to put in 60 in the the Summons form as the deadline within which the Defendants (Govt. in this case) should respond. Right?
I do not see the requirement to be married until naturalization in Section 319(a) of the INA. As long as three year requirement is fulfilled, the USCIS cannot deny N400. The regulation is invalid and contrary to Congress intention. On top of that, the agency unreasonably delayed the adjudication.
As Mass court noted
http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=young/pdf/taing-memorandum.pdf
"It seems logical and it even is expected that the USCIS will take some time to process and evaluate the Applications because of the volume of Applications it has to manage. Wholly apart from the statutory analysis below, however, it does not seem fair to punish the applicants for the passage of time that was due to the USCIS’ high volume of work. If the USCIS
had scheduled the interview for June 30 (two days before her husband’s death) and not for October 13, Mrs. Taing would most likely have had her immigrant visa granted and her status adjusted."
Yellowmango,
You need to file N-336 before going back to district court. You can apply for fee waiver if you cannot afford the fee. It will be denied again based on the regulations so if fee waiver is denied, you are probably better of filing new N400.
As Mass court noted
http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=young/pdf/taing-memorandum.pdf
"It seems logical and it even is expected that the USCIS will take some time to process and evaluate the Applications because of the volume of Applications it has to manage. Wholly apart from the statutory analysis below, however, it does not seem fair to punish the applicants for the passage of time that was due to the USCIS’ high volume of work. If the USCIS
had scheduled the interview for June 30 (two days before her husband’s death) and not for October 13, Mrs. Taing would most likely have had her immigrant visa granted and her status adjusted."
Yellowmango,
You need to file N-336 before going back to district court. You can apply for fee waiver if you cannot afford the fee. It will be denied again based on the regulations so if fee waiver is denied, you are probably better of filing new N400.
I have following as the named Defendants.
1. MICHAEL CHERTOFF, DHS
2. JONATHAN SCHARFEN, USCIS
3. MICHAEL B. MUKASAY, US AG
Please bear with me as I'm getting into questions that may be obvious to the veteran here:
Thanks and I may have more questions as it's getting down to the wire now.
- When filling up summons form available from MA court's web site , should I change defendants's name in the Plaintif v Defendants section before sending it to each defendant? So in other words, should fill in Plaintiff v. Chertoff when sending Summons to chertoff, Plaintiff v. SHARFEN when sending to SHARFEN and Plaintiff v. MUKASAY when sending it to US AG? I think I don't need to change the Defendant's name but should put in individual defendant's name and address in the To: section.
- Do I need to send summons in addition to complaint+exhibits to Office of General Counsel, US DHS, Washington, DC 20258 AND local US attorney's office?
- After filing the Complaint, I will get a case number assigned. Does the clerk need to stamp the summons as well or can I just put the case numbers on them and mail them to defendants?
- The 60 day clock starts from the date when AUSA receives the summons so When do I serve the AUSA? I wouldn't know who she/he is at the time of filing?
- I have to put in 60 in the the Summons form as the deadline within which the Defendants (Govt. in this case) should respond. Right?
US AG last name is Mukasey.
1. Case title stays the same. You put defendant name and address in TO: section
2. Use General Counsel addres to serve complaint + summons for SCHAFREN and CHertoff. No need to send an additional copy to general counsel or to USCIS/DHS.
3. Clerk will stamp them
4. You serve upon local US Attorney, Michael J. Sullivan,
Attn: Civil Process Clerk
1 Courthouse Way
John Joseph Moakley Courthouse
Boston, MA 02210
5. Right.
Thanks, so when local US Attorney, Michael J. Sullivan receives the Summons, the 60 day clock starts?
Do I send Complaint+Exhibits to Defendants and Local US Attorney?
Did you take soft copy (PDF files of the Complaint and Exhibits) to the court clerk along with the paper copy? I have PDFs and plan to file motion to efile when I initial submit my paper Complaint.
Do I send Complaint+Exhibits to Defendants and Local US Attorney?
Did you take soft copy (PDF files of the Complaint and Exhibits) to the court clerk along with the paper copy? I have PDFs and plan to file motion to efile when I initial submit my paper Complaint.
US AG last name is Mukasey.
1. Case title stays the same. You put defendant name and address in TO: section
2. Use General Counsel addres to serve complaint + summons for SCHAFREN and CHertoff. No need to send an additional copy to general counsel or to USCIS/DHS.
3. Clerk will stamp them
4. You serve upon local US Attorney, Michael J. Sullivan,
Attn: Civil Process Clerk
1 Courthouse Way
John Joseph Moakley Courthouse
Boston, MA 02210
5. Right.
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This cited case is based on death of a spouse, not divorce.I do not see the requirement to be married until naturalization in Section 319(a) of the INA. As long as three year requirement is fulfilled, the USCIS cannot deny N400. The regulation is invalid and contrary to Congress intention. On top of that, the agency unreasonably delayed the adjudication.
As Mass court noted
http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=young/pdf/taing-memorandum.pdf
.
The requirement to remain married until the oath date is enforced by regulations (CFR). I agree that there is a discrepancy between the CFR and USC, but courts have ruled in the past that divorce before the oath date is cause for naturalization denial. Also, marriage based naturalization cases face much more scrutiny due to the relatively high incidence of fraud with such applications.
http://bulk.resource.org/courts.gov/c/F2/480/480.F2d.673.72-2351.654.html
Last edited by a moderator:
Thanks, so when local US Attorney, Michael J. Sullivan receives the Summons, the 60 day clock starts?
Do I send Complaint+Exhibits to Defendants and Local US Attorney?
Did you take soft copy (PDF files of the Complaint and Exhibits) to the court clerk along with the paper copy? I have PDFs and plan to file motion to efile when I initial submit my paper Complaint.
Yes to the first two questions. I did not do e-file so I do not know.
This cited case is based on death of a spouse, not divorce.
The requirement to remain married until the oath date is enforced by regulations (CFR). I agree that there is a discrepancy between the CFR and USC, but courts have ruled in the past that divorce before the oath date is cause for naturalization denial. Also, marriage based naturalization cases face much more scrutiny due to the relatively hign incidence of fraud with such applications.
http://bulk.resource.org/courts.gov/c/F2/480/480.F2d.673.72-2351.654.html
Thanks for the info, Bobsmyth. Still, the court decision buffles me. The court says: "Section 319(a) of the Act states that "[a]ny person whose spouse is a citizen of the United States may be naturalized . . ." under the special three year residency provisions. Because petitioner is not currently married to an American citizen, he no longer falls within the literal purview of section 319(a) and he is ineligible for naturalization under that section."
Yes, but the application was properly filed and the petitioner was still eligible for naturalization under a different section. Why was the application denied if the petitioner did not lose his eligibility for naturalization? Makes no sense to me.
Should I fill the second page in MA summons after I have the confirmation of delivery of summons to Defendants and file it with court?
I have seen different formats for Certificate of Service for actions filed in MA? I'm assuming I could pick any of those since there probably isn't a form available from the court? It's probably not a big deal anyway.
Also the Certificate of Service attached as PDF was part of the Complaint (see Boston_Complaint.pdf). I'm not sure how that must have happened or possible?
I have seen different formats for Certificate of Service for actions filed in MA? I'm assuming I could pick any of those since there probably isn't a form available from the court? It's probably not a big deal anyway.
Also the Certificate of Service attached as PDF was part of the Complaint (see Boston_Complaint.pdf). I'm not sure how that must have happened or possible?
Last edited by a moderator:
Thanks for the info, Bobsmyth. Still, the court decision buffles me. The court says: "Section 319(a) of the Act states that "[a]ny person whose spouse is a citizen of the United States may be naturalized . . ." under the special three year residency provisions. Because petitioner is not currently married to an American citizen, he no longer falls within the literal purview of section 319(a) and he is ineligible for naturalization under that section."
Yes, but the application was properly filed and the petitioner was still eligible for naturalization under a different section. Why was the application denied if the petitioner did not lose his eligibility for naturalization? Makes no sense to me.
The court's ruling was based on the petitioner having a lack of good moral character by providing false evidence about his marriage (petitioner claimed he still lived with his wife at initial interview, but in reality she had moved out 5 months before) and by the petitioner committing adultery.