N-400 denial and unbelievable reason! need advice

[ahmadj]

hello all,

I entered the states legally from the netherlands back on febuary of 2002, at which i wa 15 years old.

My mother had married a USC on july of 2001, and returned back to the Netherlands, to find out that the person she was married to was a fraud, liar and couldnt support her or us.

So she returned in december of 2001 to marry my stepfather, a USC (at the time she was married still to husband nr1)

We entered the country and begin our path to residency. My stepfather then filed a I130 for my mom me and my younger brother.

As our petitions were in process my stepfather found out about husband nr1, so in july of 2002 my mom had the marriage annulled to husband nr 1.

My stepfather withdrew the i130 and filed for i485. The immigration requested a new marriage certificate, and my mom and stepdad got married in september 2004. (which i was 18 and 3 months old) somehow our i485 was approved and I received my 2 year cond. GC. in 2006 removed the conditions and have had my GC ever since.

Now in january 0f 2011 i applied for my N400. 6 years after becoming a LPR. did the biometrics, went to interview and they requested additional document which i mailed to them, annullment marriage certificate)

on September 1st 2011 I got the decision letter stating that it was denied and that USCIS issued me a GC in error.
I have 30 days to appeal the decision.

I have consulted numerous attorneys, and have had different responses. 3 of them recommend doing the appeal. The 4th attorney recommends to wait for the NTA letter and present my case to the judge, because i fall under certain "pardons" in which the judge can reinstate my GC and also approve my N-400.

I am lost, I want my citizenship, but most importantley now I'm in fear thinnking that I will get deported back to the Netherlands. Has anybody dealt with this type of issue. What should I do, appeal it, wait for the NTA, can I travel in the meantime? I have never been this lost in my life.

thanks people
Ahmad
btw I'm 25 now, and no criminal record have worked here and paid my taxes.

 

[ahmadj]

emotional and frustrating decision

Well here goes my story.

In july 2001 my mother who is a Dutch citizen entered the US on a tourist visa, where she met husband #1.
They married in California, and my mother left back to the Netherlands, because she had found out that husband #1 had lied about age income, where he lived etc. She came back to the netherlands and we continued our regular life.

Then in december of 2001 my mom returned to the US again, thru her dutch passports where visas are not required. While she was here she met my stepdad. They really liked eachother and got married in Nevada. (husband nr 2)

My father started filing the I130 for my mother, myself and my younger brother. We entered the states in febuary 2002, at which i was 15 years old.

My stepdad found out about husband #1 and quickly hired an attorney to annul the marriage based on fraud. The marriage got annulled in july of 2002.

My stepfather withdrew his I130, and filed for 1485. The immigration requested another marriage certificate and my mom and stepdad married again in september 2004, (which i was 18 and 3 months old)

The I485 got approved and we received our conditional residency. In 2006 we received our 10 year Green cards. By this time we had buil our lives here, I graduated high school, enrolled in college, found work etc etc.

Now came january 2011 and I decided to apply for my citizenship. In january started the application, got my biometrics taken in february, went to the interview in may and passed every section but , they requested additional information, like my parents marriage certificate and anullment papers. Which i mailed out to them. 120 days passed and I made an info pass appointment, saw another immigration officer and he told me give us 30 days because we need to pull your moms file. After 5 days I got a letter saying that in september 2004 I was over 18, the service issued my green card in error therefore your N-400 application is denied. And I have 30 days to dispute it. Even though my I485 with receipt date of october 2002 got approved in december of 2004.

Now I got worried and consulted a few attorneys, many of them which said dispute it. And a few said yes, USCIS did issue your green card by error. And i was told to wait for the NTA paper and then present my case in front of a judge( off course I will hire counsel) because I fall under a special waiver or pardon since it has been over 5 years that I got my green card, and hope for the judge to have my green card retained, and file for N-400 again. (according to the attorney)

Now I am lost, scared and confused, has anyone had this type of problem or dealt with anything similar?
thanks
AhmadJ

 

[Bobsmyth]

Since your mom's marriage to your stepdad in December 2001 was illegal (due to her still being married), she did not meet the requirements for I-485 filled in 2002. Instead of USCIS asking for a second marriage certificate, the I-485 should have been denied and your mom should have sorted out her marriage issues before refiling. Needless to say, your mom's and USCIS mistake has become your nightmare.
I don't see much point in appealing your N-400 since it was based on parent I-485 being erroneously approved, and no special waiver has been granted.
The NTA and waiver will only be to retain your GC. My guess is that once your GC has been confirmed by the special waiver, it will then qualify you to file N-400 once again.

 

[Jackolantern]

Is this part of a larger trend of USCIS going back to review the old green card application? Remember that other guy discussed in a thread a week or two ago whose naturalization was denied on that basis?

Ideally, the I-130 and I-485 should have been withdrawn and refiled in 2004 after they got married again in 2004. However, given that an annulment has the legal effect of retroactively removing a marriage from existence, maybe your lawyer could make the argument that the annulment means the 2001 marriage legally never existed therefore the I-485 filing in 2002 and approval in 2004 were legitimate. That might be the basis upon which it was granted in the first place -- with the annulment completed, USCIS recognized the marriage to husband #2 as (retroactively) valid and issued the green card. Talk to your lawyer about that line of argument and researching the precedents for it.

USCIS has 5 years to initiate rescission of an erroneously issued green card (which they didn't do, given that your GC was initially granted in 2004), so your green card should be safe from this issue even if you can't ever naturalize.

 

[BigJoe5]

Your actual issue is that you were too old when mom finally got LEGALLY married. YOU did not meet the requirements to be considered the stepchild of your mom's USC husband. Your younger brother did meet the definition (he has to be more than 3 months younger than you!).

The lawyers who said to appeal the N-400 are incompetent shysters trying to con you out of fees. Please file complaints against them (see the EOIR website for the form EOIR-44). http://www.justice.gov/eoir/eoirforms/instru44.htm

The 4th lawyer is talking some nonsense. The IJ has ZERO AUTHORITY to even look at your N-400. Also, even if you might be granted some form of relief it will NOT be naturalization. IF you are able to get re-adjusted then naturalization might someday become available but not for a very long time.

Under NO circumstances depart the U.S. prior to getting some form of relief or official clarification and then it might still require further permission.

How did YOU last enter the United States? Think back. Did YOU have a visa? It sounds like you entered on the Visa Waiver and then sought adjustment.

As for relief .... that is unclear and chances are slim in the short-term. HOWEVER, the 5-yr statute of limitations has closed on the recission option under INA 246. You did not commit fraud and since there is no criminal history involved, you are extremely LOW on the priority list. You can keep your card but refrain from travel until you PERHAPS get re-adjusted in the future. Even if you asked for an NTA, USCIS would likely decline to issue one. While you are ineligible for naturalization right now, you might have a chance later. You need to study the possibility for Cancellation of Removal and Adjustment of Status under INA 240A.

Use these points as benchmarks when finding the NEXT and hopefully COMPETENT lawyer.

1.) You were too old to be a stepchild,
2.) You committed ZERO fraud,
3.) An IJ cannot approve an N-400,
4.) INA 240A might be an option at some point,
5.) Travel is a bad idea right now,
6.) Recission is not an option for USCIS,
7.) You are LOW priority for an NTA.

Good luck,

 

[Jackolantern]

Your actual issue is that you were too old when mom finally got LEGALLY married.

But what about the effect of the annulment? If the annulment retroactively erased the 2001 marriage, wouldn't that mean the 2002 marriage was legitimate, at which time the OP was under 18?

 

[BigJoe5]

But what about the effect of the annulment? If the annulment retroactively erased the 2001 marriage, wouldn't that mean the 2002 marriage was legitimate, at which time the OP was under 18?

Mom and her USC husband FINALLY got legally married when he was 18 ys and 3 mos. in Sept 2004. At that time he was too old. While the annulment did end the first marriage it did not make the 2nd marriage valid because it was entered into when she was already legally married. IF the annulment had validated the 2nd marriage nunc pro tunc (possible but VERY RARE), then there would have been no need to re-marry in Sept 2004.

 

[Jackolantern]

Mom and her USC husband FINALLY got legally married when he was 18 ys and 3 mos. in Sept 2004. At that time he was too old.

Yes but the 2001 marriage is what was originally invalidating the 2002 marriage. With the 2001 marriage retroactively erased by the annulment, it no longer invalidates the 2002 marriage so the 2002 marriage could be regarded as legal and in 2002 the OP was still under 18.

 

[ahmadj]

I entered the US on a tourist visa, in 2002 when flying in from Amsterdam you do not need any special visas, I believe its under the Visa waiver program. and filed for adjustment of status, got social security #, employment authorization, conditional GC and then 10 year GC.

the marriage to husband #1 was in july of 2001 in Van Nuys CA, the marriage to husband #2, my current stepdad, was in december of 2001, the annulment was done on july 2002, judgement was as follows, judgment of nulity to be entered, judgement shall be entered nunc pro tunc as of (date) 4/30/02

 

[Jackolantern]

If you want to overturn the denial you need to see a lawyer. Explain to them the situation with the key dates -- all marriage dates, filing for AOS, etc. and ask if there are specific statutes or precedents that could be used for the appeal, particularly regarding whether the annulment could retroactively make the December 2001 marriage valid.

Or you can just give up and forget about citizenship, at least you'll still keep your green card.

Did they approve your mother's citizenship?

 

[ahmadj]

I have seen 7 immigration attorneys in the past 2 weeks paid for certain consultations. 5 of them advised to do an appeal, and they want a big chunk of money for it. Since annulment was entered nunc pro tunc (but as of 4/20/02) I dont think that makes marriage number 2 in december of 2001 valid.

2 of them told me to wait for a NTA and since I fall under section 240A most likely my greencard will be considered valid as of the dat which I became a resident, (12/04/2004) They feel that thats my biggest chance of retaining my GC.

In the meantime I feel like I'm trapped. I do lots of traveling, live close by the mexican border, have friends and family that I visit in mexico, have friends and family in the netherlands that I used to visit, fly out to the carribean often, but now I feel trapped, because I cannot leave and re enter the country.

I have a USC GF that just became a USC, we have had talks about marrying, but that would put me in a 3 year wait period for becoming a USC again.

I am so lost. This mistake should have popped up in 2002, but no I get punishment for something I had no control over.

My mother never bothered to apply, I know its stupid but she own an extremely busy hair salon that consumes her 7 days a week. I'm the first one to apply.

 

[Jackolantern]

2 of them told me to wait for a NTA and since I fall under section 240A most likely my greencard will be considered valid as of the dat which I became a resident, (12/04/2004) They feel that thats my biggest chance of retaining my GC.

You will almost certainly retain your GC. It is more than 5 years since your GC was granted and they still haven't sent you an NTA, so now it's past the statute of limitations for them to rescind the green card based on their error, given that the facts were known to them before the green card was approved (I assume your mother told them about the first 2001 marriage before or during the I-485 process). You probably won't get an NTA, and if you do it should be easily defeated.

In the meantime I feel like I'm trapped. I do lots of traveling, live close by the mexican border, have friends and family that I visit in mexico, have friends and family in the netherlands that I used to visit, fly out to the carribean often, but now I feel trapped, because I cannot leave and re enter the country.

I don't see why you can't travel. Your GC hasn't been canceled, and there is no basis for them to cancel it because it's past the 5 year limit for rescission. And if they try to cancel it you'll have your day in court, they won't just shut you out at the border.

I have a USC GF that just became a USC, we have had talks about marrying, but that would put me in a 3 year wait period for becoming a USC again.

That gives you an interesting but expensive and inconvenient option for citizenship. You could leave the US and surrender your existing GC, then have her petition you with a fiance or spousal immigrant visa, then some months later you're back in the US with a clean green card and a clear path to citizenship.

My mother never bothered to apply, I know its stupid but she own an extremely busy hair salon that consumes her 7 days a week. I'm the first one to apply.

Well it's too late for her. They researched her case for giving your denial, so they will almost surely have flagged her file so that whoever interviews her will be aware of the issue and also deny her case. Unless you manage to get the denial overturned in court based on the annulment or some other precedent.

 

[BigJoe5]

It appears that the mother and little brother are OK. The mistake was including the over age child as a stepson of the USC.

At some point in the future when the time is right, you will want to be issued an NTA because ONLY an IJ can grant the INA 240A relief (but you have to make sure that you meet THOSE requirements first. Play it safe and WAIT until you reach a full 10 years living in the U.S. without any significant absences (from the initial Visa Waiver entry date) as that would make you eligible under INA 240A(b) just in case you have to fall back on that HOWEVER, that also requires a showing of hardship to an LPR or USC spouse, parent, or child.

Even for eligibility under INA 240A(a) you must have seven years residence BUT you don't need to show hardship. Make sure of your eligibility before pursuing anything.

 

[ahmadj]

I currently fall under section 240A, I have 8+ years of residency (entered states in febuary of 02), and have been a LPR since december of 2004.
I have no criminal record. But according to some on this forum, I probably won't get an NTA issued anytime soon.

In the meantime I feel like a prisoner, because everyone is advising me that I can't travel because at PoE I will not get admitted.

The letter of denial was sent to me on september 1st 2011, I entered the states at Los Angeles International airport from a overseas trip to the caribbean o september 5th 2011.

I was admitted in to the country. I dont mind waiting for the NTA to be issued if Ic an somehow confirm my traveling options. Is there anyway I can call the USCIS or make an appoinment and ask them, can I still freely travel and will I get admitted?

 

[Jackolantern]

Is there anyway I can call the USCIS or make an appoinment and ask them, can I still freely travel and will I get admitted?

They won't tell you if they plan to send an NTA or not. They'll send it or they won't send it. Nor will they tell you if you'll be readmitted (in fact they sometimes tell inadmissible people to leave the US with Advance Parole, as a deceptive way of deporting them). If you're not appealing, you shouldn't say or do anything to attract their attention to your case, so don't do inquiries if you're not appealing.

In the meantime I feel like a prisoner, because everyone is advising me that I can't travel because at PoE I will not get admitted.

Your lawyers are saying that? Did you ask them what would be the basis to cancel your green card or refuse admission, given that you are beyond the 5-year cutoff for rescission, and USCIS knew about the disqualifying facts before your green card was approved?

If you want to play it safe, you could just stay in the US for the next 6 months or so just to see what transpires. Another safety option is to stay in the US until you're married to your USC girlfriend. If you get shut out of the US as a result of this issue with the green card, she can sponsor you for another green card and you'll be back in the US in 6-12 months.

 

[Jackolantern]

It appears that the mother and little brother are OK. The mistake was including the over age child as a stepson of the USC.

The trouble with the mother and little brother's case is that the September 2004 marriage was after the 2002 receipt date of the I-485, which would mean there was no valid marriage when the I-130 and I-485 were filed, unless the annulment would resolve that nunc pro tunc.

 

[baikal3]

I currently fall under section 240A, I have 8+ years of residency (entered states in febuary of 02), and have been a LPR since december of 2004.
I have no criminal record. But according to some on this forum, I probably won't get an NTA issued anytime soon.

In the meantime I feel like a prisoner, because everyone is advising me that I can't travel because at PoE I will not get admitted.

Who is advising you that you can't travel? As far as I understand, the denial of your N-400 has no effect on the validity on your green card and you can travel abroad using it.
You cannot simply be denied admission at the POE if you are in possession of a valid green card.
At most (and even that seems rather unlikely), you could be referred by the CBP agent at the POE to an immigration judge for GC revocation proceedings.


It seems much more likely that USCIS will never issue an NTA and will not initiate removal proceedings against you since the statute of limitations for them to revoke your GC based on it being originally issued in error has run out. In that case you'd be able to keep your GC status indefinitely but won't be eligible for naturalization.

As noted by others above, if you marry a U.S. citizen, you may be able to re-adjust status (or go abroad, surrender your current green card there and apply for a new immigrant visa based on the marriage to a U.S.C.) and then become eligible for naturalization after 3 years of marriage to a U.S.C. and having the new GC.

The letter of denial was sent to me on september 1st 2011, I entered the states at Los Angeles International airport from a overseas trip to the caribbean o september 5th 2011.

I was admitted in to the country. I dont mind waiting for the NTA to be issued if Ic an somehow confirm my traveling options. Is there anyway I can call the USCIS or make an appoinment and ask them, can I still freely travel and will I get admitted?

 

[BigJoe5]

The trouble with the mother and little brother's case is that the September 2004 marriage was after the 2002 receipt date of the I-485, which would mean there was no valid marriage when the I-130 and I-485 were filed, unless the annulment would resolve that nunc pro tunc.

The earlier case was withdrawn and replaced with a new one. The corrected filing was OK for the mom and younger brother BUT at that point in time OP was erroneously included and USCIS made the mistake of issuing him LPR status when he was not eligible. OP may have muddled the reality of what stepdad did BUT the gist is clear enough.

OP said: "My stepfather withdrew his I130, and filed for 1485. The immigration requested another marriage certificate and my mom and stepdad married again in september 2004, (which i was 18 and 3 months old)"

The conditional status came in 2004 and the 10 yr cards in 2006.

The information about his erroneous adjustment will NOW have been entered into DHS databases and an overzealous CBP Officer could give him trouble and could place him in proceedings. That is the danger in travel at the present time. It would be more advantageous for OP to do all he can to assert as much control over the timing of any proceedings as he can. His cross border travel is something within his control.

If an IJ decides that OP's adjustment was valid, then he does qualify under INA 240A(a) as an "LPR" who has resided in the U.S.for at least 7 years.

If an IJ decides that OP's adjustment was NOT valid, then he does NOT qualify under INA 240A(a) as an "LPR" who has resided in the U.S.for at least 7 years.

If an IJ decides that OP's adjustment was NOT valid, then he does NOT qualify under INA 240A(b) as an "LPR" who has resided in the U.S.for at least 10 years because he might not have 10 years yet. Remember, mom tried a first marriage and then left the U.S. which killed any I-485 as abandoned, then came back for a second try.

In addition, if/when he has 10 years, he would then be required to show hardship to a qualifying relative. He most likely cannot. MOM is an LPR who owns a thriving business. Mom's husband does not qualify as OP's legal stepfather, brother is irrelevant and he is not married (yet) and has NOT stated that he has any children.

****************

By all means, travel everyday back and forth across the border and just see what happens. It might only mean a 5 or 10 year exile---no big deal, right? (I don't know the emoticon for blatant sarcasm so regular sarcasm will have to suffice)

Once again, get your situation clarified before endangering yourself. In the end, you will do as you please anyway.

Best of luck.

 

[Jackolantern]

The earlier case was withdrawn and replaced with a new one.

The receipt date of the approved I-485 was in 2002. The September 2004 marriage was after the I-485 filing. So even if the I-485 was a refiling, it was still more than a year before the 2004 marriage. Which means the I-130 was also before the 2004 marriage, which in turn means his mother didn't have a valid marriage when the I-130 and I-485 were (re)filed in 2002, unless the annulment of the July 2001 marriage retroactively validated the December 2001 marriage.

Even though my I485 with receipt date of october 2002 got approved in december of 2004.

 

[baikal3]

The earlier case was withdrawn and replaced with a new one. The corrected filing was OK for the mom and younger brother BUT at that point in time OP was erroneously included and USCIS made the mistake of issuing him LPR status when he was not eligible. OP may have muddled the reality of what stepdad did BUT the gist is clear enough.

OP said: "My stepfather withdrew his I130, and filed for 1485. The immigration requested another marriage certificate and my mom and stepdad married again in september 2004, (which i was 18 and 3 months old)"

The conditional status came in 2004 and the 10 yr cards in 2006.

The information about his erroneous adjustment will NOW have been entered into DHS databases and an overzealous CBP Officer could give him trouble and could place him in proceedings. That is the danger in travel at the present time. It would be more advantageous for OP to do all he can to assert as much control over the timing of any proceedings as he can. His cross border travel is something within his control.

If an IJ decides that OP's adjustment was valid, then he does qualify under INA 240A(a) as an "LPR" who has resided in the U.S.for at least 7 years.

If an IJ decides that OP's adjustment was NOT valid, then he does NOT qualify under INA 240A(a) as an "LPR" who has resided in the U.S.for at least 7 years.

If an IJ decides that OP's adjustment was NOT valid, then he does NOT qualify under INA 240A(b) as an "LPR" who has resided in the U.S.for at least 10 years because he might not have 10 years yet. Remember, mom tried a first marriage and then left the U.S. which killed any I-485 as abandoned, then came back for a second try.

In addition, if/when he has 10 years, he would then be required to show hardship to a qualifying relative. He most likely cannot. MOM is an LPR who owns a thriving business. Mom's husband does not qualify as OP's legal stepfather, brother is irrelevant and he is not married (yet) and has NOT stated that he has any children.

****************

By all means, travel everyday back and forth across the border and just see what happens. It might only mean a 5 or 10 year exile---no big deal, right? (I don't know the emoticon for blatant sarcasm so regular sarcasm will have to suffice)

Once again, get your situation clarified before endangering yourself. In the end, you will do as you please anyway.

Best of luck.

The problem is that it seems fairly likely that USCIS will never initiate the NTA process on its own. The 5 year statute of limitations has run out quite a while ago, the OP has no criminal record, his case is a low priority for them, and deportation proceedings does cost the government quite a bit of money. So why would they try to remove him? It is also not clear to me how the OP can force their hand and make then issue an NTA (assuming that he decides that the time is right).