N-400 declined - False Testimony and its implications on re-application

[sf91]

Hi,
Looking for help from forum experts here.

I had a petty theft misdemeanor in Aug 2002 for which I had 364 days of jail sentence, suspended to 364 days of unsupervised probation. The probation ended October 2003.

I applied for my citizenship in Jan 2008 - falsely assuming that I am beyond the 5 year period from the arrest date, Aug 2002. I did the immigration interview in May 2008 and the Officer mentioned that he cannot make a decision at the time of the interview. After about 20 months of wait, my application was declined for two reasons: 1. Lack of good moral character within the 5 year period and 2. False testimony.

After talking to an immigration lawyer recently, I realized the mistake that the 5 year period needs to be from the end of probation and not from the date of arrest. Now, I am trying to assess if I should reapply now. I am getting advice that I better wait till 2013 (5 years after my immigration interview) so the false testimony doesn't affect the 5 year Good moral Character status.

I am trying to understand where the false testimony came about. In the N-400 application, I checked all the boxes correctly in Part 10-D where questions about my arrest were asked. I provided the court documents with the application. In the explanation box below Question 21, I mentioned the suspended sentence (364 days of unsupervised probation) instead of the actual sentence (364 days of jail). But I explained the entire arrest record in a separate sheet of paper; like mentioned above, I had included the court documents also. Does this mention of suspended sentence instead of the actual sentence grounds for false testimony?

During the immigration interview, I gave all the documents about the arrest to the officer. When he suggested that this falls under 5 years, I replied that the arrest date was Aug 2002 and so it was outside of the 5 years. It was my misinterpretation of the definition of 5 years of good moral character, not trying to hide any information. Would the above answer of mine been the reason for false testimony?

Given the above, should I wait till 2013 or can I apply and explain my earlier N-400 mistake in a note? I have to take a foreign assignment starting early next year for my work. If I have to wait till 2013 for my re-application, I will have to forgo the assignment. If I take the assignment and stay out of the country for the majority of the next 2.5 years, I wouldn't meet many of the residency requirements for the N-400 reapplication.

I appreciate your feedback,

Thanks.

 

[baikal3]

When exactly was the court decision (conviction) made in your misdemeanor case? The date of conviction is more important than the date of arrest and there is a school of thought that the five year GMC period clock starts with the date of conviction.

It really looks strange about the false testimony charge. It may be that the IO made a mistake, since it appears that you disclosed everything that you needed to disclose. What precise language did the denial letter use in relation to the false testimony charge? And what did the immigration lawyer whom you consulted say about it?

It also could be that the IO thought that some particular detail or piece of information told by you during the interview was false. But it does look pretty strange.

 

[Bobsmyth]

When was the actual conviction date (not arrest date)?
What type of case inquiries did you do during the 20 month wait?
Also, how did you end up going to jail for 364 days? Was this not a first time conviction?

 

[sf91]

Conviction Date was October 2002.

364 days of jail sentence suspended to 364 days of unsupervised probation. I should have had a good lawyer then and negotiated for a much lesser sentence. I was so embarrassed and I wanted to just get it over with.

Thanks.

 

[baikal3]

Conviction Date was October 2002.

364 days of jail sentence suspended to 364 days of unsupervised probation. I should have had a good lawyer then and negotiated for a much lesser sentence. I was so embarrassed and I wanted to just get it over with.

Thanks.

Could you post the precise wording of the denial notice, both for GMC and false testimony parts?

 

[sf91]

Here is the actual wording:
"You have failed to demonstrate good moral character within the statutory period pursuant to Section 316.10 (b)(2)(i) & 316.10 (b)(2)(vi) as quoted above.

Accordingly, your application is hereby denied. This decision is made without prejudice to the filling of a new application in the future should you meet all the eligibility requirements"

 

[baikal3]

Here is the actual wording:
"You have failed to demonstrate good moral character within the statutory period pursuant to Section 316.10 (b)(2)(i) & 316.10 (b)(2)(vi) as quoted above.

Accordingly, your application is hereby denied. This decision is made without prejudice to the filling of a new application in the future should you meet all the eligibility requirements"

Was there a part of the denial letter which explained in which way you failed to demonstrate good moral character? (Perhaps above the passage that you quoted?)
Also, what exactly did the letter say about false testimony?

 

[Bobsmyth]

Here is the actual wording:
"You have failed to demonstrate good moral character within the statutory period pursuant to Section 316.10 (b)(2)(i) & 316.10 (b)(2)(vi) as quoted above.

Accordingly, your application is hereby denied. This decision is made without prejudice to the filling of a new application in the future should you meet all the eligibility requirements"

8 cfr 316.10(b)(2)(vi) is for admitting to a crime that you were never charged for. Did you answer YES to the question on application about committing a crime you were never charged for?

 

[sf91]

Do you mean the question "Have you ever committed a crime or offense for which you were NOT arrested", Question No. 15 in Part 10-D? I answered NO, because I was arrested for it - and I didnt have any other crime or offense for which I was not arrested.

316.10 (b) (2) (vi) read as follows in my letter:
"Has given false testimony to obtain any benefit from the Act, if the testimony was made under oath or affirmation and with an intent to obtain an immigration benefit; this prohibition applies regardless of whether the information provided in the false testimony was material; in the sense that if given truthfully, it would have rendered ineligible for benefits either the applicant or the person on whose behalf the applicant sought the benefit"

It doesn't talk about the crime or offense for which one was not charged / arrested.

 

[sf91]

Nope. The entire letter is as follows:

first page - mentioning that my application has been declined.

Pages 2 and 3 - Details of the entire sections of 316

Page 4 - only one short paragraph - first few lines talked about the arrest and how I disclosed the details of the arrest;
Then the two lines I copied in my previous post - thats it.

There were additional pages for the appeal N336 process.

 

[Bobsmyth]

Nevermind, my dyslexia saw it at 8 cfr 316.10(b)(2)(iv) instead of (vi).

Regarding the false testimony issue, do you recall the IO mentioning anything at interview about how you reported the charge or correcting your answer on N-400 ?

 

[baikal3]

Nope. The entire letter is as follows:

first page - mentioning that my application has been declined.

Pages 2 and 3 - Details of the entire sections of 316

Page 4 - only one short paragraph - first few lines talked about the arrest and how I disclosed the details of the arrest;
Then the two lines I copied in my previous post - thats it.

There were additional pages for the appeal N336 process.

This all looks pretty strange.
If your conviction was in Oct 2002 and you filed N-400 in Jan 2008, that conviction itself was outside of the 5 year GMC statutory period and should not have, by itself, led to the denial of your N-400 application on the lack of GMC grounds.

It is possible that, for whatever reason, the IO decided that you gave false information about something (perhaps something related to that conviction) during the interview. Giving false information during a naturalization interview could itself be viewed as evidence of lack of GMC. So perhaps the finding that you lacked GMC during the statutory period was based on the IO's conclusion that you lied about something during the interview, rather than on the fact that you had a 2002 petty theft conviction.

You could try re-filing another N-400 now. The 2002 conviction would certainly not be a problem now, provided it is properly disclosed. However, the fact that your previous N-400 was denied on giving false testimony grounds could itself represent a GMC problem for a new N-400 application. You would need to convince the IO conducting the interview for a new N-400 that you did not in fact lie or give false testimony during your previous application. This may be worth a try if time is a factor for you. It's probably a good idea for you to talk to an immigration lawyer first, before filing a new application.

 

[sanjoseaug20]

I am trying to decipher what might be going on, and believe it could be related to "5 years" vs "ever" wording of the question. While the N400 asks people to report trips etc., in 5 years, the questions regarding good moral character are termed as EVER. I would request OP to re-check the answers, and see if the answer was specific to 5 years rather than EVER. Even if the documents to closing the 2002 issue were supplied, the way the questions were answered, and when they were disclosed (under questioning or voluntary), could lead the officer to suspect false testimony. I think my question is on the same line of questioning as Bob's "do you recall the IO mentioning anything at interview about how you reported the charge or correcting your answer on N-400".

Even though the case is closed "without prejudice", I think you should try to understand the cause of this denial if you decide to re-file rather than appeal. This is because if the false testimony charge is attributed to the naturalization interview (rather than 2002), then it will be material to your next filing, if it were to happen soon.

Overall, I still see a lot of ambiguity in what happened - "what was disclosed when and how".

 

[sf91]

Well, it is pretty darn confusing to me as well.

My immigration lawyer says that 5 years will be counted from when the probation ends - not from the date of conviction - so they seem convinced that the first reason (that good moral character within 5 years of statutory period) given by USCIS is correct.

I have a follow-up meeting later this week to understand the false testimony aspect more. The lawyer seems to want to play on the safer side and is asking me to wait till 2013.

Should I get a second opinion from another lawyer? Anybody recommend a good Immigration lawyer for such cases?

Thanks.

 

[sanjoseaug20]

The lawyer seems to want to play on the safer side and is asking me to wait till 2013.

That is what I would advise too if the false testimony happened during the N400 process. However, on the face of it, you seem to be equally unaware of it. Think again ... sometimes mind plays tricks and makes people believe what they should have said rather than what they actually said. You should definitely get a second opinion.

But from what I see, you are not making an unequivocal statement about whether your answers were truthful from the beginning or changed during the process.

If you are sure there was absolutely no false testimony, you should contest the denial ... at the minimum, they drop the false testimony and retain the GMC ... which will allow you to re-file now rather than 2013.

 

[sf91]

I didn't anything during the process. I was clear about the arrest throughout. I have been going through this again and again. In my original post, I listed two areas that could be possible grounds for false testimony. Here I am listing them again. Are these grounds for false testimony - I am not a legal expert and nor an immigration expert - that is why I am looking for perspective here:

"I am trying to understand where the false testimony came about. In the N-400 application, I checked all the boxes correctly in Part 10-D where questions about my arrest were asked. I provided the court documents with the application. In the explanation box below Question 21, I mentioned the suspended sentence (364 days of unsupervised probation) instead of the actual sentence (364 days of jail). But I explained the entire arrest record in a separate sheet of paper; like mentioned above, I had included the court documents also. Does this mention of suspended sentence instead of the actual sentence grounds for false testimony?

During the immigration interview, I gave all the documents about the arrest to the officer. When he suggested that this falls under 5 years, I replied that the arrest date was Aug 2002 and so it was outside of the 5 years. It was my misinterpretation of the definition of 5 years of good moral character, not trying to hide any information. Would the above answer of mine been the reason for false testimony?

 

[sanjoseaug20]

Perfect, I wanted it stated this emphatically.
I thought your application was just denied, but 20 months + 5 years might have been Jan 2010, in which case it is too late to appeal.
So the only question is filing a new app and its timing. Unfortunately, not contesting the denial (and the false testimony) puts this on a lower level than just the prior 2002 case, and while filing N400 you will definitely need to explain + contest the previous decision.

Yes, do take second opinion ... although it is a complex and difficult situation, but I am sure a competent lawyer would be able to position your case in a much better light. But your work is cut out as many lawyers will say they can fix it, but you will need check their experience in handling a case closest to yours, which is not so easy to scrutinize.

 

[baikal3]

During the immigration interview, I gave all the documents about the arrest to the officer. When he suggested that this falls under 5 years, I replied that the arrest date was Aug 2002 and so it was outside of the 5 years. It was my misinterpretation of the definition of 5 years of good moral character, not trying to hide any information. Would the above answer of mine been the reason for false testimony?

No, certainly not. Whatever you said was your interpretation of the 5 year statutory period could not possibly be counted as giving false testimony.

I would suggest that you consult a different lawyer and file another N-400 now.
The 5 year statutory period for GMC is counted from the date of conviction (not from the date of arrest and not from the end of the sentence); both the IO and the lawyer you consulted should have known this.
If you file a new N-400 now, the main challenge will be to convince the next IO that you did not give false testimony during your previous application. With proper preparation and a good lawyer this should be quite possible. The 2002 petty theft conviction itself should not be an issue this time around, since by now it would be well outside the 5 year period.

 

[Jackolantern]

My immigration lawyer says that 5 years will be counted from when the probation ends - not from the date of conviction - so they seem convinced that the first reason (that good moral character within 5 years of statutory period) given by USCIS is correct.

You need to wait until the probation has ended before you apply for naturalization, but it is not necessary to wait 5 years after it ended. But you have to wait at least 5 years after the conviction ... but if denied for false testimony in the interview, you also have to wait 5 years after the interview.