Decision cannot be made

K

kelvini

Registered Users (C)
Hello,

I got derivative asylum from my father in 2004. The judge granted it to me based on the CSPA. I applied for the GC a year later. They denied me in 2007, saying that the CSPA did not apply to my case. My motion to reopen was also denied. Then in june 2008, based on the the new memo from USCIS on the CSPA, I applied to have it reopened and it was granted in november 2008. I got married on march 2008. At the interview they asked if I was married and I told them yes. I had a lawyer with me present. I got the GC with the AS8 code on it.
Yesterday I had the citizenship interview and after passing the test I was told that decision cannot be made at this time because since I was married at the time, the GC should not have the code AS8 on it. Basically she said that she doesnt know what will happen at this time, if it's their fault they might let it go or change the code to AS6. the lawer at the time said that it was a possibility not getting the GC, but he was hopeful we might because it was a reopening of an old case and I was single at the time. So I am freaking out. Are they going to deny the citizenship? Or even take away the GC?
 
I think she was mistaken. You were supposed to be adjusted as AS8, not as AS6, even though you were married at the moment.
 
raevsky said:
I think she was mistaken. You were supposed to be adjusted as AS8, not as AS6, even though you were married at the moment.
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That's what was my understanding at the time, it was their mistake to deny me the first time around, which they later changed with the 2008 memo. I reopened a case and was single when I first applied. And I didn't hide the fact that I was married. Could just be a case of the officer not wanting to be on record as deciding a case that's not straightforward, so she wants the boss to do it. I hope it is so. After 10 years, I don't want to deal with them anymore!!!
 
If you aged out, you would have AS6, as I did, if I'm not mistaken. It could be that the IO just has to check, and that you'll hear (good) news sometime in the next couple of months, as it is likely to have been their mistake. Either way, though it would be a little worrisome, you need not give up hope.
 
http://www.uscis.gov/USCIS/Outreach...1 Events/July 2011/CSPA_TeleconferencePPT.pdf

Asylum Case Scenario
Adam was listed as a derivative child on his parent’s Form I-589, filed November 15, 2007.
The I-589 was approved on March 1, 2008.
Adam filed an I-485 for adjustment as an asylee on March 1, 2009.
Adam turned 21 on January 1, 2009.
Is Adam eligible to adjust as an AS8?

Explanation
Yes, Adam’s age was “frozen” on the date the Form I-589 on which he was listed on was filed.
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Hm...
This logic could mean that in case of marriage he is no longer AS8...
 
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Hm...

http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-1825.html mentions requirements for adjustment

(3) continues to be a refugee within the meaning of section 101(a)(42)(A) or a spouse or child of such a refugee,
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You were not a child of an asylee before the adjustment because you had married.

Consider this:
http://www.expertlaw.com/forums/showthread.php?t=94803

USCIS Records Indicate that you were granted derivative asylum as the child of (My Father name). you were married on March 27,2009 and no longer qualify as a child. Because you no longer meet the provisions of INA Section 209(b)(3) or 8 CFR Part 209.2, you are statutorily ineligable fo adjustment of status
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However, after motion to reopen was filed, he successfully adjusted.
The Motion to reopen because my family said it was engagement only because the just talked on the phone
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http://www.law.cornell.edu/uscode/text/8/1101

101(a)(42)(A)
(42) The term “refugee” means
(A) any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion,
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It looks like you could qualify under 101(a)(42)(A) yourself in order to be adjusted (in that case you could get AS6), but it says "continues to be a refugee within the meaning of section 101(a)(42)(A)" which means not only that you are a refugee under this clause, but that you were one before. Since you never formally qualified of being a one before, it is not formally clear to me you could have adjusted at all.

It is very much possible you were really statuary ineligible for adjustment. In that case your GC could still be revoked because 5 years have not passed since adjudication was done mistakenly before the mistake was revealed.
 
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Thanks for the replies. I'm no loosing hope yet. I asked a couple of lawyers online and their answers were mixed too. Anywhere from they'll deny to they won't since they screwed up. I really don't know at this point. I guess I just have to sit tight.
 
raevsky said:
According to http://caselaw.findlaw.com/us-6th-circuit/1314867.html , qualifying for derivative asylum is very much different from qualifying for asylum. So, I do not reall know how exactly you could prove you "continue to be a refugee within the meaning of section 101(a)(42)(A)"
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When they refused m GC the first time, they were very specific in saying that my derivative asylum was not in question. It stands, they were never questioning it. It was granted by a judge, not the IO. The letter said they I'm free to pursue adjustment in pther ways other than the CSPA, which according to them did not apply. The question seems to be this: can the reopening of the case, after all it was not a new case, and the directive change be enough to grant an application which was denied unjustly? It was not out of their good heart after all, they were sued and are still being sued for the CSPA.
 
kelvini said:
When they refused m GC the first time, they were very specific in saying that my derivative asylum was not in question. It stands, they were never questioning it. It was granted by a judge, not the IO. The letter said they I'm free to pursue adjustment in pther ways other than the CSPA, which according to them did not apply. The question seems to be this: can the reopening of the case, after all it was not a new case, and the directive change be enough to grant an application which was denied unjustly? It was not out of their good heart after all, they were sued and are still being sued for the CSPA.
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inability to naturalize is only the top of the iceberg.
 
raevsky said:
inability to naturalize is only the top of the iceberg.
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I'm realizing that. I found this on the USCIS website that deals specifically with the revised CSPA memo of 2008:

Q. What can I do if I had an application for permanent residence that was denied because I aged out?

A. If you would have been eligible for CSPA protection under the revised guidance, you can file a Motion to Reopen/Reconsider with the office that denied the application with no fee if you meet the following requirements:

you were the beneficiary of a visa petition that was approved prior to August 6, 2002 and filed for permanent residence after August 6, 2002 AND
you would have been considered a child under CSPA requirements (see above) AND
you applied for permanent residence within one year of visa availability AND
your application was denied solely because you aged out


I just read this. Everything above fits me, I bolded the part that says you would have been considered a child. I was considered a child when my application was denied and it was denied solely on the misinterpretation of the CSPA.

Hereis the link:

http://www.uscis.gov/portal/site/us...toid=10409fed09eb9110VgnVCM1000004718190aRCRD
 
I was 27 at the time I filed the motion to reopen, and married. At the time the original I 485 was filed I was still consider a child. It was denied because for them I aged out. The wording of the memo above is retroactive.
"you would have been considered a child under CSPA requirements" allowed me to file back in 2008. The CSPA "child" definition is to be under 21 and single. I was a "child" under the CSPA originally, and at the interview they knew about my marriage. I believe they applied the new memo as written. The IO and the supervisor agreed at the time. I just don't understand why the problem now.
 
It looks like they made a mistake having adjusted your status. That was not your fraud, just their mistake. They shoul not have adjusted you. If they make a mistake and they figure it out within 5 years, they could revoke your gc. If it is not figured out within 5 years, the gc cannot be revoked. Yours possibly revealed before 5 years expired. So, denying naturalization might be just first step, because you are not eligible. Next step could be revoking your gc.
 
raevsky said:
It looks like they made a mistake having adjusted your status. That was not your fraud, just their mistake. They shoul not have adjusted you. If they make a mistake and they figure it out within 5 years, they could revoke your gc. If it is not figured out within 5 years, the gc cannot be revoked. Yours possibly revealed before 5 years expired. So, denying naturalization might be just first step, because you are not eligible. Next step could be revoking your gc.
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The interview for the GC was on 11/2008, but being that I am an asylee, it says 11/2007 on the GC. This date is the one they use to determine immigration benefits for asylum holders 8 C.F.R sec 209.2 (f) , which is why we apply only 4 years after getting the GC and not 5 years like others. My interview was this month, it has been over 5 years. They haven't initiated rescind procedures.

At the citizenship interview she asked me more than once if I had told the truth in my GC interview. I remember telling them so and I had a lawyer with me. Now I am second guessing myself on everything. I have requested copies of the 2008 I485 plus the supporting documents. What if I put single by mistake on the application and told them I am married during the interview, is that considered fraud? Anybody can make a mistake on a form, but I didn't lie under oath. is there a way to get the interview transcript?
 
Because 5 years have not passed, they do not need you to have committed fraud in order to revoke your mistakenly issued gc. Even though for naturalization purposes you gc is backdated one year back, that is probably not like that for the purposes of your gc being revoked
 
raevsky said:
Because 5 years have not passed, they do not need you to have committed fraud in order to revoke your mistakenly issued gc. Even though for naturalization purposes you gc is backdated one year back, that is probably not like that for the purposes of your gc being revoked
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That's what I thought, but my lawyer thinks otherwise. According to him the date of legal residency for an asylee starts one year before the GC interview, because they consider the one year you waited to apply as counting. I don't know. I got no love for the USCIS at the moment. They screwed me twice, once when they denied me in 2007 and the second time when they approved me in 2008. i still have they asylum and that cant be touched. I will probably have to start from scratch, my mother is a USC and she'll sponsor me. That's another 6-7 years before another N400 interview. But I'm probably going to fight this.
 
So, on March 8th the N400 denial came. It basically said that it was based on inadmissible as a PR at the time. Nothing else. The lawyer doesn't think they will take the GC away based on my lack of criminal record, taxes payed, college degree, good job, parents and brother USC etc. I actually went to Italy for a trip last week and was able to get in with no prob. I still have asylum, therefore not removable. He also said that in rescission proceedings discretion plays a good part and I have more than enough. Even if they take the green card away, I can apply Nunc Pro Tunc and have the asylum converted to AS6 and apply right away for the GC again. So it will actually cost the gov money to take the GC away only for me to get it back in a short time. So we appealed for two reasons, one to try and make a discretionary case and see if that sticks and if not to see if they would agree to a NPT asylum with me keeping the GC and not loosing my years of residency. The NPT asylum would be backdated to 2004 thus making my GC ok in the eyes of the law. Thus I would be able to naturalize. Any thoughts? Also does anybody knows how long N336 are taking in NYC? Thank you!
 
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