N-400 denial: do you acknowledge or not?

[valiko]

Interesting reading. Thank you for posting it.

I think that the first section on Page 5 pretty much say it all. I wonder if you have obtained the letters from bishop/archbishop that they request in the first section. I doubt such documents can be obtainable. I suspect that CIS has a list of churches that take negative stance on the issue of arms bearing (Jehovah's Witnesses, Seventh Day's Adventists, etc) and Orthodox Churches are not on the list.

Let's be frank and say honestly that Russian Orthodox Church does not prohibit its members from serving in military with arms. Just the opposite happens. In fact, on many occasions soldiers in Russian Army receive official blessings from Russian Orthodox priests when they go to "hot spots" like Chechnya, Ingushetia, Kosovo. It happens with permissions and encouragements from the higher ups, i.e. General Staff. Here are some photos of Orthodox priests performing their official blessing among soldiers in army and navy:
http://www.gold-cupola.ru/images/pogr.jpg
http://orthos.org/grodno/gev/july2005/images/pris_b.jpg
http://www.hramvsr.by/images/2007/20-02-2-1.jpg
http://www.hramvsr.by/images/2006/14-02-1.jpg
http://www.hramvsr.by/images/2006/23-04-2.jpg
http://files.pobeda.ru/fotor/ds_24.jpg
http://files.pobeda.ru/fotor/ds_23.jpg
http://www.nikita-bywalino.ru/photos/1-pps.jpg
http://www.nikita-bywalino.ru/photos/10-akra.jpg
http://www.nikita-bywalino.ru/photos/11-akra.jpg
http://www.nikita-bywalino.ru/photos/5-akra.jpg
http://www.nikita-bywalino.ru/photos/6-akra.jpg
http://www.nikita-bywalino.ru/photos/7-akra.jpg
http://www.nikita-bywalino.ru/photos/8-akra.jpg
http://www.nikita-bywalino.ru/photos/9-akra.jpg

The last five photos are the most relevant, because they show a priest performing an act of baptizing of young conscripts. The seventh photo is also interesting for it shows a soldier literally bearing arms (AK-47) and receiving a blessing.

There is one peculiar exception in Orthodox Church position: the Church bars it's deacons and priests (but not members) from bearing arms. My understanding is that if you are a deaconess then yes you have a chance of obtaining a letter from bishop/archbishop, or maybe even from Metropolitan Laurus.

Well, that said, my opinion is to find the best attorney to proceed with the appeal. Not only this should be a lawyer intimately familiar with immigration practice, but also with the peculiarities of naturalization process, and especially with proven successful cases like yours. Please do not rely on advices (including mine) that you get or will get on this forum or other forums. We do not perform surgeries or do dental work ourselves, right? There's a reason why doctors, dentists and lawyers earn big bucks, and it's because they know more than us. Please please please consult a lawyer.

Ditto, man! That's exactly my point: IF there is a war, AND IF the US asks to defend the Constitution, AND IF they draft women would the Christian Orthodox Church bless such a war? -- 99.9% chance yes I was foolish enough to express my concern about the 0.1% chance that the Christian Orthodox Church does not (like it happened during the Russian revolution when the head of the Russian Orthodox Church obviously did not bless the Red Army, AND neither did he give the Church's blessing to the White Army movement). There are way too many ifs, and, yes, it makes no sense being honest at the naturalization interview, hence.

Another point is -- the INS DID NOT LOOK AT THE EVIDENCE SUBMITTED!!! I sent them a letter from the reverend, I sent them a personal explanation, I sent them a whole pound of paper -- they did not look at it, then when I gave the INS a deadline to come to a fair decision or be sued -- they sent me the denial before my deadline expired. It's in my brief --take a look.

I should have just sued them for stalling and never to have warned them.

The point of starting this thread was to help those who might be in similar situation by my example, and to find some interesting input -- may be I did not think of something -- that sort of thing, you know. Otherwise, I'm adamant on my correctness and right to US Citizenship. There's no question I will win this case. Pity, I have to do it this way, though.

 

[Amerikanus]

Ditto, man! That's exactly my point: IF there is a war, AND IF the US asks to defend the Constitution, AND IF they draft women would the Christian Orthodox Church bless such a war?

There are no IF's. The question is as straightforward as possible: are you ready to "bear
arms on behalf of the United States when required by the law?"

Note, that when you say that the Church should bless "such a war", you border another case where the applicant was denied naturalization:
-----------------------------------------------------
United States v. Macintosh 283 U.S. 605

Question: Should citizenship be allowed for a person who pledges only to fight wars the individual considers moral?

The Case: Macintosh, a Canadian citizen, sought to become a natura lized U.S. citizen, but refused to pledge to take up arms in defense of the country. He would fight for his country only if he thought the war was morally justified. On his citizenship application he wrote, “I am willing to do what I judge to be in the best interests of my country, but only in so far as I can believe that this is not going to be against the best interests of humanity in the long run. I do not undertake to support 'my country, right or wrong' in any dispute which may arise, and I am not willing to promise beforehand, and without knowing the cause for which my country may go to war, either that I will or that I will not 'take up arms in defense of this country,' however 'necessary' the war may seem to be to the Government of the day.”

Decision: The Court refused to allow a candidate for naturalization to qualify his oath by pledging only to fight in wars he deemed moral. “..[G]overnment must go forward upon the assumption, and safely can proceed upon no other, that unqualified allegiance to the nation and submission and obedience to the laws of the land, as well those made for war as those made for peace, are not inconsistent with the will of God.”

Significance: The Court said that it is the Congress, not the courts, which should decide. This decision reasserted the importance of Congressional authority to dictate the terms for obtaining citizenship. The “slippery slope” argument (once we start down this path there'll be no way to stop) was used to prevent any qualifications to the requirements for naturalization.
-----------------------------------------------------

In other words, the authority to decide which wars to engage lies not with Church (any Church, Orthodox or others). A citizen can not set forth such a precondition to performing his/her civic duties in wartime that his/her Church must first bless (or approve) the war.

like it happened during the Russian revolution when the head of the Russian Orthodox Church obviously did not bless the Red Army, AND neither did he give the Church's blessing to the White Army movement

Well, this didn't change a thing: the White Army managed to work around without the blessing.
Compare that to members of Jehovah's Witnesses and Seventh Day Adventist Churches in USSR, who for once refused to serve in Red Army through WWII, and who had been imprisoned to Gulag for that i.e. for keeping their faith.

Another point is -- the INS DID NOT LOOK AT THE EVIDENCE SUBMITTED!!! I sent them a letter from the reverend,

It seems to me that they (CIS) did look. On page 5, they specifically ask about a letter from the church, supporting your position. This should be a letter on Church official letterhead and signed by a Church official (i.e. someone having a judicial power within Church, not a regular priest). Did you send CIS such a letter? If yes, what was written in the letter?

There's no question I will win this case. Pity, I have to do it this way, though.

I frankly doubt your strategy will win. Your appeal is based on procedural details rather than on substance. That rarely works these days.

 

[Jackolantern]

Note, that when you say that the Church should bless "such a war", you border another case where the applicant was denied naturalization:
-----------------------------------------------------
United States v. Macintosh 283 U.S. 605

That is a case from 1931. Immigration law changed a lot since then, and that decision may no longer be relevant to this case if it was based on a law that was dropped or modified during the 76-year time frame after that case.

The OP needs to see a lawyer ASAP and stop paying attention to potentially misleading information on anonymous message boards like this.

 

[takshila1]

IF there is a war, AND IF the US asks to defend the Constitution, AND IF they draft women would the Christian Orthodox Church bless such a war? -- 99.9% chance yes I was foolish enough to express my concern about the 0.1% chance that the Christian Orthodox Church does not (like it happened during the Russian revolution when the head of the Russian Orthodox Church obviously did not bless the Red Army, AND neither did he give the Church's blessing to the White Army movement)

The question is, as a US citizen, are you loyal to the US Constitution or to the Christian Orthodox Church?

Romney (Mormon Church) is now dealing with this and before him Kennedy (Pope). They both have pledged to uphold the US constitution above all else. The US constitution is the "supreme law of the land" and your loyalty to this is the pre-requisite to US citizenship.

As a citizen of a democratic, secular country you can challenge the constitution using time honored democratic processes. However, in the end if you do not prevail you abide by the constitution or you will be considered a traitor and not worthy of US citizenship.

Precedents: Slavery, Racial or any other discrimination, polygamy, underage marriage, female circumcision, honor killing. Some of these are sactioned by some religions but the law of the land says these are treasonous or illegal acts. You do not argue with this.

That is the gist of the question on "willing to bear arms to defend this country", the answer should always be YES. If you answer NO, you do not deserve the US citizenship.

 

[Jackolantern]

That is the gist of the question on "willing to bear arms to defend this country", the answer should always be YES. If you answer NO, you do not deserve the US citizenship.

Then why do they allow people to use a modified oath without the "bear arms" clause?

There are many different ways that one can serve in the military and defend the country without bearing arms. You can be a driver for a rescue jeep, an interpreter, a doctor or nurse, a helicopter mechanic, etc.

 

[shadowfox]

From here:

In United States v. Schwimmer, 279 U.S. 644 (1929), and United States v. Macintosh, 283 U.S. 605 (1931), a divided Court held that clauses (3) and (4) of the oath, as then prescribed, required the candidate for naturalization to be willing to bear arms for the United States, thus disqualifying conscientious objectors. These cases were overturned, purely as a matter of statutory interpretation by Girouard v. United States, 328 U.S. 61 (1946), and Congress codified the result, 64 Stat. 1017 (1950), as it now appears in the cited statute.

 

[valiko]

From here:

In United States v. Schwimmer, 279 U.S. 644 (1929), and United States v. Macintosh, 283 U.S. 605 (1931), a divided Court held that clauses (3) and (4) of the oath, as then prescribed, required the candidate for naturalization to be willing to bear arms for the United States, thus disqualifying conscientious objectors. These cases were overturned, purely as a matter of statutory interpretation by Girouard v. United States, 328 U.S. 61 (1946), and Congress codified the result, 64 Stat. 1017 (1950), as it now appears in the cited statute.

Thank you. That was the case I was referring to in one of my previous posts.

The Orthodox Church is AUTOCEPHALIC (each parish may have its own type of service within the same CANONICAL COMMUNION -- essentially each parish being its own head under a bishop) -- this also explains why the Orthodox Church emphasizes individual's own set of Christian morals -- one should always have his/her own head on the shoulders to interpret the secular issues by relying on Christ and the Saints regardless of which Patriarchate the particular parish belongs to: Moscow Patriarchate, Russian Patriarchate Abroad, Jerusalem Patriarchate, or any other.

On a slightly different point: I believe, we now come in this thread to the very important (to me) issue of the law exercised in this country. The law in the US is based on precedence because the US federal and local laws are worded such that there are multiple interpretations. Some call this ambiguity. Some further say that when the law is ambiguous --there is no law. And some argue still that such laws as there are in the US are very good for those who are caught with a smoking gun in a their hand and a dead body nearby because they still can be acquitted. Some say that justice in this country is served by not proving the guilt or innocence by looking at the facts but instead by disqualifying the evidence of the other party. (let's just remember the infamous O.J. Simpson, or the W. Clinton's cases)

I firmly believe this system should be used to the maximum potential. It is not a just system but it is the one that will help me win my case -- precedents can be created. Does it really matter what the INS say? Factually -- may be; Practically -- no. If I can interpret the laws the way I need the outcome to be -- that's all I'm after. I don't care whether Swimmer at al. argued for conscientious objection to bearing of the arms and lost. The laws here are so "squirmy" they resemble an eel on a hot frying pan -- all I need to do is be persistent enough, and, yes, nit-picky if need be to get what I'm after. I am using laws, precedents, and facts as tools to prove my case, I no longer care about justice. I need and will present this case such that all facts appear to support the outcome that I want, and disqualify any other opinion or view of the matter. That's the gist of the judicial system here, I am trying, thus, to blend in.

By the way, talking about willingness of bearing of arms, US Citizenship and upholding of the Constitution:
The US sent its Japanese US citizens to confinement camps during WWII in a blink of an eye. I bet the US Gov't thought long and hard before deciding whether those US Citizens were really willing to defend its Constitution. I am certain that should Russia attack the US -- any US Citizen that is an ex-Russian national would end up in a confinement camp within days. That's my two cents about the extent of democracy that can rear its ugly head at any moment here.

"Помнишь дяденьку Сократа?
-- Отравили демократы,
Как Максимыча -- ЧК!" -- Александр Дольский

 

[valiko]

Forgot: Actually, I am doing what a really good attorney specializing in immigration law advised me to do. He said that I should do an appeal on my own (done) and see what happens. If INS does not change its decision or fails to come to a decision within 180 days of appeal then I will hire him and go to Federal Court.

 

[shadowfox]

By the way, talking about willingness of bearing of arms, US Citizenship and upholding of the Constitution:
The US sent its Japanese US citizens to confinement camps during WWII in a blink of an eye. I bet the US Gov't thought long and hard before deciding whether those US Citizens were really willing to defend its Constitution. I am certain that should Russia attack the US -- any US Citizen that is an ex-Russian national would end up in a confinement camp within days. That's my two cents about the extent of democracy that can rear its ugly head at any moment here.

I think you have a very cynical view of the United States justice system. It is not perfect, that is fairly obvious. But give me one system anywhere else that you'd rather be tried in. In many ways, with all the pockmarks and imperfections, it's still the best there is because it gives you a chance to fight back. Thanks to the 14th Amendment and our adversarial system.

And it's easy enough to belie your last point quoted above. When 19 Muslims hijacked 4 planes and killed more than 3000 Americans, we did not see Muslims being herded into an internment camp.

Maybe you need some more lessons in American history and democracy. Unfortunately, you will fit right in when you become an American citizen. Too bad. Personally I'm disgusted.

Best of luck anyway.

P.S. By the way, you didn't have to write the tripe you wrote above. Your position is supported by the US Code, and the USCIS obviously made a mistake in rejecting your application for naturalization (given the facts you presented).

 

[Jackolantern]

Forgot: Actually, I am doing what a really good trial attorney specializing in immigration law advised me to do. He said that I should do an appeal on my own (done) and see what happens. If INS does not change its decision or fails to come to a decision within 180 days of appeal then I will hire him and go to Federal Court.

Pay the lawyer to review and refine your draft before sending it in. It has some inflammatory language, and when you are hoping to get the USCIS to make a decision in your favor you should be (or appear to be) a lot nicer to them. Just state the facts as you see them, and leave out language like "juggling the facts" and "concocted in a hurry as a countermeasure". Save the angry language for the courtroom where the judge or jury will be making the decision and you don't need to get on the good side of the USCIS.

Getting the wording done well now can save you time and money later on.

 

[Jackolantern]

And it's easy enough to belie your last point quoted above. When 19 Muslims hijacked 4 planes and killed more than 3000 Americans, we did not see Muslims being herded into an internment camp.

But they did force those from certain Muslim nations to submit to "special registration".

 

[shadowfox]

But they did force those from certain Muslim nations to submit to "special registration".

Yep, and that of course is exactly equivalent to herding all the Japanese into confinement camps in World War II.

 

[bashar82]

I had a similar experience with my naturalization. I decided to sue USCIS after 120 days. Within weeks of my petition in federal court, I was denied for not submitting additional docs requested at my interview. So I pulled out the UPS delivery confirmation and sent it over to government lawyers.
Prior to filing my case, I requested my A-file under FOIPA in December 2005. I finally received it in June 2007. Guess what, the additional docs were in my A-file along with the recipients copy of the UPS mailing slip!
Hope you kept copies of your docs and mailing slips/delivery confirmation. Go appeal.
One more thing, a week and a half after I received the denial letter by regular post (I believe it is supposed to be sent by certified mail) I receive a letter stating that my case was still under review.

 

[mr. a]

To VALIKO: Instead of getting into all the legal requirements, why not think of this objectively?

From your posts, you are 30+ yrs old female. I don't want to be condescending, but you can be assured that US military is not asking you to bear arms. Women do not serve in combat roles in US and you are also past the age to serve in non-combat roles.

So I don't understand what the big deal is if you answer 'yes'

 

[Amerikanus]

To VALIKO: Instead of getting into all the legal requirements, why not think of this objectively?
So I don't understand what the big deal is if you answer 'yes'

I think the OP is concerned with the hypothetical possibility of her having to fight against armed forces of her native country, in case of military confrontation between the U.S. and her homeland. Which in turn will have disastrous consequences for her relatives there.

The historical precedent here is the case of ROA. During WWI there was a so-called Russian Liberation Army (RLA aka ROA aka Vlasov's Army) of ex-soviet citizens and POW's who fought alongside with Germans against the Red Army. NKVD (KGB) used to track the relatives of RLA servicemen inside USSR and send them to Gulag to deter other people from joining ROA.

 

[eyehz]

Denied N-400

Hi Everyone,

After I read msg from this thread, I'd like to put my case here for your help: I filed my N-400 applications in Feb 2005, interviewed with USCIS in late 2006. However USCIS denied my applications on the ground of “You testified that you were absent from the United States from April 1, 2000 to June 26, 2002, a period in excess of one year.” However, I got Reentry Permit(titled "Approval Notice to Preserve Residence for Naturalization") before I left for Hong Kong on an assignmet to work for a US company.

The Approval Notice clearly stated “Your application to preserve residence for naturalization purpose has been approved to cover your absence from the United States from September 11, 1999, to an indefinite date thereafter”. Further more, it stated, “The approval of your application allows you to count the period of your absence toward residence in the United States for naturalization purposes”. I attached this approval to my N-400 application, and apparently the USCIS made a mistake on their part.

I wrote to the district Director (in New Orleans) immediately after I received the denial notice. I also attached another copy of approval of the "Preserve Residence". I sent out the letter in Oct. 2006 with a registered letter so that I have a proof the USCIS in New Orleans received my letter. However, I did not receive any thing back from USCIS since then.

What do you think I can do in this situation? Can I take any legal action or I need to simply call the office asking what's going on?

Thanks!

 

[aabbcc11]

Eye,
Take an infopass but from what you write looks like they denied you. Just writing a letter with further proof may not be enough because they never asked for that proof. I think you should have appealed right after the denial.
Try writing a letter to the IO to ask abut your case.
Also, it is better to start a new thread to get better suggestions instead of piling on this one.

 

[valiko]

Hi Everyone,

After I read msg from this thread, I'd like to put my case here for your help: I filed my N-400 applications in Feb 2005, interviewed with USCIS in late 2006. However USCIS denied my applications on the ground of “You testified that you were absent from the United States from April 1, 2000 to June 26, 2002, a period in excess of one year.” However, I got Reentry Permit(titled "Approval Notice to Preserve Residence for Naturalization") before I left for Hong Kong on an assignmet to work for a US company.

The Approval Notice clearly stated “Your application to preserve residence for naturalization purpose has been approved to cover your absence from the United States from September 11, 1999, to an indefinite date thereafter”. Further more, it stated, “The approval of your application allows you to count the period of your absence toward residence in the United States for naturalization purposes”. I attached this approval to my N-400 application, and apparently the USCIS made a mistake on their part.

I wrote to the district Director (in New Orleans) immediately after I received the denial notice. I also attached another copy of approval of the "Preserve Residence". I sent out the letter in Oct. 2006 with a registered letter so that I have a proof the USCIS in New Orleans received my letter. However, I did not receive any thing back from USCIS since then.

What do you think I can do in this situation? Can I take any legal action or I need to simply call the office asking what's going on?

Thanks!

USCIS has to come to a decision within a certain period of time. I have to look up the specific statutes that refer to the timelimits for the USCIS to make its decision on an appellate application N-336 (which is what I presume you have filed back in October of 2006). The timelimit for appeals for USCIS is 180 days (I don't remember when the count begins: the date of denial, date you file appeal, or the date of hearing.) If the case is as simple as you have described, and the only cornerstone is your extended absence from US (provided you still have the proof you mentioned) -- the right is on your side. Do not be sheepish and press on the USCIS:

1. call the USCIS national customer cervice center and get to talk to an officer. write down their badge id, their name, etc. and tell them that your n-400 and n-336 is outside of processing time. ask them to check the status. when you're done, ask them to send you a confirmation letter of this conversation.
2. schedule an InfoPass appointment at your local USCIS office. bring all of the materials/proof with you (give only copies to immigrations offiers, never originals -- show, but don't give originals). Try to find out whet the status of your n-400 and n-336 are as they are outside the processing time. DOCUMENT EVERYTHING: names, time, etc. and ask for written/printed confirmations of the officer's statements. and try to schedule an interview with an Immigration Officer
3. write email requesting same thing as in #1 to the USCIS (email address in on their website)

Technically, you should have gotten an interview a couple of moths after you have filed your appeal. You should push USCIS for one to be scheduled for you as soon as possible. At the interview you will present the documents for naturalization, including the proof of your continuous residence.
If this does not happen in the near future, you should file a lawsuit against USCIS pursuant INA section 336(b), and 8 U.S.C. § 1447(b) violation either on your own, or hire attorney.
The benefit of filing a lawsuit is in the fact that USCIS will no longer have the authority over your case -- they cannot deny your appeal. The Federal court judge is usually of a more humane approach than the USCIS. And when the facts are on your side, you'll definitely win.
If you win (I have to say "if" even though I'm pretty sure, you'll win) you can file and collect the legal fees, etc.
I have sited a good attorney in one of my previous posts above in this thread. For detailed instructions and help on how to sue USCIS on your own see the thread "Anyone with a lawsuit against the USCIS or thinking"
Go get 'em!
Best of luck.

 

[eyehz]

Thanks valiko!

Thank you very much for your reply and input. Best wishes!!

 

[boatbod]

... However, I got Reentry Permit(titled "Approval Notice to Preserve Residence for Naturalization") before I left for Hong Kong on an assignmet to work for a US company.

This sounds more like an N-470 than an I-131 Reentry permit