N-400 denial and unbelievable reason! need advice

[BigJoe5]

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).

It is correct that it does cost the government to institute proceedings and with a case like this they generally won't bother. That would leave him in limbo, a geencardholder unable to naturalize but could fall victim to an overzealous CBP Officer at a port of entry (an additional nerve-wracking travel circumstance). Some CBP Officers take their role too seriously and some do not use discretion wisely. Why else would there be a review of a 300,000 case backlog going on right now looking for the cases suitable to drop?

SEE: http://articles.cnn.com/2011-08-18/...-immigrants-immigration-judges?_s=PM:POLITICS

In that the ultimate decision to grant the desired relief lies within the jurisdiction of EOIR through an IJ or the BIA, an NTA is NEEDED to get him into that place. If he does not expose himself to CBP then he would not fall victim to an NTA before he is ready for it. Once the time is right, his attorney would approach DHS Counsel (Probably ICE) to request that the government issue an NTA and join in a Motion that would result in relief.

OP represents a sympathetic, easy-to-sell case for the exercise of prosecutorial discretion that if reported would only look positive. DHS gets enough bad press and welcomes easy "feel good" stories. It's good PR (public relations). However, OP has to be absolutely sure that his case is ready and he is FULLY qualified for the relief sought. His case is also an example of the harshness of reality. If one is NOT fully eligible under the statute then USCIS' hands are tied and the case can be and will be denied no matter how "sad" the result.

One has to know what you (s)he is qualified and eligible for and just apply for those things.

 

[ahmadj]

I looked into the section 240A:

Sec. 240A. 1/ (a) Cancellation of Removal for Certain Permanent Residents.-The Attorney General may cancel removal in the case of an alien who isinadmissible or deportable from the United States if the alien-


(1) has been an alien lawfully admitted for permanent residence for not less than 5 years,
My I-485 was approved on 12/04/2004 (according to USCIS 6 ears later by error)

(2) has resided in the United States continuously for 7 years after having been admitted in any status, and
I was admitted on febuary 2002 on a tourist visa, and filed for adjustment before the expiration date of that visa

(3) has not been convicted of any aggravated felony
I have not been convicted of any crimes.

Now the issue at hand is getting a NTA, I am low priority according to replies I have read. I wonder if there's a way to get that NTA issued to me ASAP.

So yeah I'm sitting like a duck, with no way out. I am scared to travel (because I can't even check if my green card is valid.)

I wonder If I can make a USCIS appointment and get a I-551 stamp in my dutch passport, just to be on the safe side.

And another thought that came to mind, I'm a citizen of the Netherlands, one of the 36 countries that fall under the visa waiver program. Let's say I get denied at PoE based on my green card being issued in error 6 years ago. Will I still be allowed to enter based on that visa waiver program.

Keep in mind I have had around 10 overseas trips since my greenard was issued, all with addmitance at any PoE, NY, MIA, San Juan, LA, and multiple land crossing at the Tijuana and San Diego border.

My most recent trip was to the Dominican Republic leaving on August 30th 2011, and returning on september 5th 2011 at which I was admitted as a LPR, my N-400 was denied on september 1st, and the denial letter was written the same day and mailed to me the next day.

What are my options now for travel? Will I be admitted? What can I do to get some type of relief. I dont mind the wait, as long as I'm able to travel freely.

 

[Jackolantern]

I wonder If I can make a USCIS appointment and get a I-551 stamp in my dutch passport, just to be on the safe side.

They won't give it to you, because you have an unexpired green card, and having that stamp would be no better than having the plastic green card.

Let's say I get denied at PoE based on my green card being issued in error 6 years ago. Will I still be allowed to enter based on that visa waiver program.

Not for a long time, because you would have demonstrated immigrant intent by attempting to enter with the green card. But it almost surely won't come to that. Go ahead and travel. You are beyond the 5-year statute of limitations for rescinding your green card. CBP isn't allowed to circumvent that restriction by refusing you at the POE because of an error with your GC process from over 5 years ago, and USCIS is unlikely to waste their time issuing an NTA that will 99.99% surely get defeated. You have a greater chance of getting in a major car accident or plane crash when traveling than being refused entry at the POE. If you're not letting the first two risks stop you, you shouldn't be worried about the third.

 

[baikal3]

I wonder If I can make a USCIS appointment and get a I-551 stamp in my dutch passport, just to be on the safe side.

Your GC is still valid. It can't simply be revoked now without an immigration court hearing. You won't get an I-551 stamp since you already have a valid GC.

And another thought that came to mind, I'm a citizen of the Netherlands, one of the 36 countries that fall under the visa waiver program. Let's say I get denied at PoE based on my green card being issued in error 6 years ago. Will I still be allowed to enter based on that visa waiver program.

You cannot be denied entry at a PoE if you have your GC with you.
At most what might happen is that a CBP agent might refer your case to an immigration judge for a GC revocation process. But you will be allowed to enter the U.S even in that case.

Untill and unless your GC is actually revoked (or you surrender it while abroad and renounce your GC status), you cannot be admitted into the U.S. on a visa waiver program.

 

[ahmadj]

I just got back from another consultation, and another way out has ust pooped up. According to an immigration attorney there's a waiver you can apply for without the need of being in removal proceedings.

It's INA ina section 237 a 1 h
Some type of fraud waiver. He suggest to try that, if not then section 240a.

He advised me that travel should be fine worst ase scenario cbp would detain me for a few hours and worst case scenario place me in proceedings. Which is most likely about to happen regardless.

 

[Jackolantern]

I just got back from another consultation, and another way out has ust pooped up. According to an immigration attorney there's a waiver you can apply for without the need of being in removal proceedings.

It's INA ina section 237 a 1 h
Some type of fraud waiver. He suggest to try that, if not then section 240a.

Why bother to initiate a legal battle given that if you leave USCIS alone, it is almost certain that they will leave you alone and let you keep the green card. Live your life, travel when you want to travel, and deal with the legal battle if/when they ever throw it at you.

 

[BigJoe5]

They can't waive something YOU did not do!

OP did not commit fraud or misrepresentation so cannot get a waiver for it! Also, VAWA does not apply to OP. Please report that lawyer on form EOIR-44.


INA 237 (a)(1)

(H) WAIVER AUTHORIZED FOR CERTAIN MISREPRESENTATIONS. -- The provisions of this paragraph relating to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens described in section 212(a)(6)(C)(i), whether willful or innocent, may, in the discretion of the Attorney General, be waived for any alien (other than an alien described in paragraph (4)(D)) who-

(i) 5a/ (I) is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and

(II) 5a/ was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 212(a) which were a direct result of that fraud or misrepresentation.

(ii) 5a/ 5aa/ is a VAWA self-petitioner.

A waiver of removal for fraud or misrepresentation granted under this subparagraph shall also operate to waive removal based on the grounds of inadmissibility directly resulting from such fraud or misrepresentation.

 

[ahmadj]

Bigjoe5,

I spoke to the attorney again and mentioned what you said.

He is a former INS attorney and told me that marriage number 2 would be considered the misrepresentation.Whether it was intentional or unitentional. He is also investigating whether the section 237 a 1 h could be done administratively without seeing a judge.

It's worth a try he figured, if it get denied in froont of IJ, then we have option number 2 which is section 240A, and if that fails I have my USC girlfriend, but I don't to go that route unless its absolutely necessary.

And in the meantime he thinks there shouldn't be an issue traveling overseas, since I'm beyond the 5 year statute.

I'm just trying to cover all possible avenues, since my entire life, family and everything I ever know is here.

I wouldn't know where to start in case of deportation.

 

[Jackolantern]

He is a former INS attorney and told me that marriage number 2 would be considered the misrepresentation.

USCIS knew the first marriage wasn't terminated before the next one began, so how could it be a misrepresentation? It might be something else bad like bigamy, but it's not misrepresentation if USCIS knew about all the marriages and their termination status or lack thereof.

It's worth a try he figured, ...

It's worth a try to him because he'll make money if he represents you in a court battle. I can't see how it's worth it to you to trigger any proceedings, given that if you do nothing they'll almost surely leave you alone and let you live the rest of your life in peace with the green card, and even if you triumph in the proceedings you still won't be able to get citizenship.

 

[Bobsmyth]

USCIS knew the first marriage wasn't terminated before the next one began, so how could it be a misrepresentation?

The OP mentioned in original post that stepdad only found about about previous marriage after he filed I-130. This means the previous marriage wasn't disclosed on I-130, eventhough the stepdad later withdrew the application and submitted i-485.

 

[Jackolantern]

The OP mentioned in original post that stepdad only found about about previous marriage after he filed I-130. This means the previous marriage wasn't disclosed on I-130, eventhough the stepdad later withdrew the application and submitted i-485.

Yes, but the I-130 was withdrawn and refiled, and USCIS was informed of the previous marriage at the time of the new I-130 and I-485. So the green card isn't based on any misrepresentation; USCIS had all the relevant facts at the time of adjudication but they erroneously granted the green card for ahmadj.

 

[BigJoe5]

Puzzle this:

HOW is it possible to pin MOM's stupidity and "bigamy" on her son? HOW is MOM's misrepresentation to her 2nd USC husband in any way, OP's misrepresentation to USCIS?

Also: Suppose that an IJ determines that the OP was never actually "lawfully" admitted for permanent residence in the first place. Where does that leave him if he forces his way into proceedings prematurely?


PLEASE file a compliant on EOIR-44. If you get into the position of being ordered removed, having filed a complaint about poor legal assistance will bolster any case to reopen proceedings later on.

 

[ahmadj]

a few months later

I had read everyones posts and considered advice that was given to me by many of you and finally had a consultation with an attorney that I felt comfortable with.

My denial letter was written on september 6th, so i had until september 9th to request an appeal.

Many people told me not to file for an appeal and any attorney that was going to do appeal would be wasting my time and money.

Well I went and did the appeal anyway. I hired counsel and he requested an appeal hearing with a different officer.

He submitted a brief to the supervisor of the Los Angeles area, I believe his name is mr Lyons. After the brief submit, we received a date for a hearing, december 16th 2011 at 7:30pm. We both showed up as scheduled and waited for my name to be called.

We got called in by a different officer than last time. She called my name and my attorneys name and was very surpassed when she mentioned my attorneys name. It turns out they were friends/acquaintances, and were ver happy to be seeing each other.


We walked into her office and she put me under oath, she said I have received your brief of your attorney, in which states that in California annulment means that something has no legal affect. Since my mother very first marriage was annulled, it made my mother 2nd marriage to my USC stepfather valid, at which i was under 18, so the stepchild relationship is valid.

She went in to further details about it and said that your application is recommended for approval.

She asked me if anything had changed, address, arrests? or children.

I answered yes, since on 9/22/2011 my son was born.
She requested a notarized letter from the mother stating that I pay child support. I ha the letter sent to me and personally dropped it of the following week. The officer was out that particular day, but some other officer told me that she would personally give to her the next day.

I dropped the letter of on 12/29/2011, the next day friday the 30th my case status changed.

Post Decision Activity

On December 30, 2011, the supervisor review of your case was completed. We will mail you a notice once a final decision has been made. Please wait to receive the notice before you contact USCIS.

For approved applications/petitions, post-decision activity may include USCIS sending notification of the approved application/petition to the National Visa Center or the Department of State. For denied applications/petitions, post-decision activity may include the processing of an appeal and/or motions to reopen or reconsider and revocations.

I'm keeping my fingers crossed and hoping this long journey is finally coming to an end.

 

[ahmadj]

still no change

No letter in the mail and It still says,

Post Decision Activity

On December 30, 2011, the supervisor review of your case was completed. We will mail you a notice once a final decision has been made. Please wait to receive the notice before you contact USCIS.

For approved applications/petitions, post-decision activity may include USCIS sending notification of the approved application/petition to the National Visa Center or the Department of State. For denied applications/petitions, post-decision activity may include the processing of an appeal and/or motions to reopen or reconsider and revocations.

ugh!!!!

 

[Jackolantern]

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?

It looks like USCIS agreed with this interpretation -- the annulment retroactively made the 2002 marriage valid, thereby making your green card legitimate and establishing your eligibility for naturalization.

 

[ahmadj]

They did agree that the annulment made the 2nd marriage valid, the latest officer said that the first officer must have not understood what annulment meant. And erroneously denied my application....

 

[gcbayarea]

As our petitions were in process my stepfather found out about husband nr1

Hate to sound intrusive. But what does this sentence of yours mean? Does it mean that she got married to nr2 without informing nr2 that she had already married once?

 

[ahmadj]

j9QCNd

Hate to sound intrusive. But what does this sentence of yours mean? Does it mean that she got married to nr2 without informing nr2 that she had already married once?

My mother had married a USC on july of 2001, and returned back to the Netherlands, after she found that the person she was married to was a fraud, liar, had no job and did the whole marriage just for fun.

She never bothered to divorce or anything, so she just returned back to the Netherlands, after 6 months she met my stepfather and they married each other. She never thought about the first marriage. I wish she did. I wouldn't be in this mess I'm in now.

 

[ahmadj]

change!!

No letter in the mail and It still says,

Post Decision Activity

On December 30, 2011, the supervisor review of your case was completed. We will mail you a notice once a final decision has been made. Please wait to receive the notice before you contact USCIS.

For approved applications/petitions, post-decision activity may include USCIS sending notification of the approved application/petition to the National Visa Center or the Department of State. For denied applications/petitions, post-decision activity may include the processing of an appeal and/or motions to reopen or reconsider and revocations.

ugh!!!!

ok, so the case status changed.

MY CASE HAS BEEN PLACED IN QUE FOR OATH CEREMONY!!!!!!

YAAAAAAAAYYYYYY!!

thanks to everyone who encouraged me to appeal!!!

couldn't be happier!!

 

[osheth]

ok, so the case status changed.

MY CASE HAS BEEN PLACED IN QUE FOR OATH CEREMONY!!!!!!

YAAAAAAAAYYYYYY!!

Great! Congratulations, It is nice to see it coming through finally !!!