N-400 denied - seemingly due to USCIS miscalculating time out of the country - input welcomed

S

seattleite909

Registered Users (C)
I'd be very interested in input from anyone who has been out of the us close to 50% of the 5 years preceding their application.

My situation is thus:

Sent application on 1/10/11 ( I live in NYC). Had interview on 4/6 and received denial on 5/1.

The reason for my denial was that according to their calculations I'd been out of the country for >50% of the 5 years preceding my application. My calculations, which I have checked ad infinitum showed me as out for 897 days (in 36 trips). That's clearly close to the 50% 913 days rule but it is still under it and the rules are the rules. Their calculations said that I'd been out for 933 days.

In my calculations, I'd taken their guidance (in naturalization brochure) that days spent partially in the US count as full days. Their calculations seem to have only included one of my travel days as being in the US - their number is precisely 36 days over mine - i.e. one per trip - so they appear to have counted one of my travelling days per trip as being out.

I phoned the customer service number to talk to a second level officer about it and he suggested making an infopass to go and talk about it as he said it sounded like a simple calculation error. I don't really want to appeal if I can avoid it as $600 is a bit steep to pay for a calculation mistake. I'm going to see them next Friday in NYC.

So be interested to know - does anyone have any case law examples for how the 'days partially spent in the US' thing can be worked out - or have experience with outcomes like this - i.e. can they revisit the decision without a formal appeal when it's a simple mistake like this? Given the officer suggested an infopass before appeal, I am hopeful - as everything else with my case was in order.

Opinions with specific examples - would be very interested to hear. This appears to be, on the surface of it, that they are not counting days in/out in accordance with their own guidance.

There are no issues here related to continuous residence - this is just about physical presence
 
There are no issues here related to continuous residence - this is just about physical presence
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Are you sure? Did you have an N-470 or were you abroad in the US military? If not, they could say, "OK, we're wrong about the physical presence issue, but taking a look at your back-to-back trips we see you've broken continuous residence".
 
The application was denied due to physical presence - and so if I end up appealing what I will be focussed on is exactly that subject - I understand the continuous residence issues and this does not really apply to my situation (too much detail for here, but I explicitly am not asking for input related to this).

Really I'd like to know whether anyone has case law examples/ or personal examples of a situation involving USCIS counting travel time...remembering their guidance is: "Generally, partial days spent in the United States count as whole days in the United States".

As the physical presence thing has got to be objective rather than subjective at face value it looks like this could be a simple mistake (and that's what the second-level officer I spoke to said). I'm just curious as to experiences others have had in this case. I presume that cases this near to the limit are less common - so in an average case, if USCIS use a different formula, it prob doesn't have a material impact - but as I am near to the limit it does.
 
In my case, I had spent 907 out of 913 days out of the US, and I counted partial days as days spent in the country. During my first interview, the uninterested and unprofessional IO gave me a hard time about how close it was, and that she needed to verify the trips. That never happened, and I had to sue them to get the application moving. Maybe, because I sued, they gave me the benefit of THAT doubt based on the time pressure they had to make a decision, but I was very worried about this exact issue that you're having. Try the infopass and hope they make an exception. Otherwise, you might as well re-apply when you have at least a couple of months more of physical presence. You can TRY to appeal to your lawmakers or the ombudsman before that if you want. Unfortunately the appeal window is only 30 days, right? Time is off the essence.

I hate CIS.
 
Which dates did you use for your calculation? passport arrival stamps? passport record will most likely show give u a day extra per trip (e.g. you leave the U.S. usually evenings on Jan 1st and arrive to most countries in the world on Jan second. if you had 36 trips, a day a trip could explain the difference.
 
I know my comment is not going to be helpful. As I had just a few trips I wanted to be on the safe side and I counted any day of the trip as an out of country day. In my case it didn't make any difference.
 
Although the guide to naturalization states that partial days in US are generally counted as full days in the US, it isn't clear whether this applies to both the exit and entry dates. I would say it only applies to either exit or entry days but not both since (according to your calculations) in theory you would be able to calculate trips just over 24 hours as not counting towards time outside the US. For example, if you left the US January 2 at 10:00am and returned January 3 at 11:00am it clearly is a trip of over 24 hours and therefore counts as 1 day outside the US. However, if you try to claim January 2 and January 3 as partial days in the US, it would mean the travel wouldn't go against physical presence (which isn't the case).
This being said, I believe you would be wasting your time trying to appeal since your calculations give you an unfair advantage (ie: both exit and entry days count as time in the US).
 
Well I had 8 trips, so I definitely would have been over if either only the exit dates were counted as being outside the US, or both entry and exit dates were counted that way.
 
seattleite909: Can you please explain which departure dates you used, i.e. from passport or from travel records/itineraries that you have?

I was told that USCIS does not count exit and entry days as days out, according to what the instructions. I believe they get travel records from CBP (custom and border protection) for both entry/exit dates. Therefore it is very likely that it is your passport departure dates will be 1 day after departure dates from the system. The reason is that you would use the entry stamp of destination country as your departure date. As someone said above, the other country arrival stamp will likely be 1 day after you left US (if you leave today (5/6) to France, France entry stamp will be 5/7).

if you think this is the case, i think it is better not to appeal, and just stay here few days so that you can get the required days. I read in a different thread that someone appealed the date calculation and the officer said he cant/wont change what the original officer found in date calcuations.

Please reply about which departure dates you used (entry stamps or travel records), this will help all of understand how USCIS calculate dates
 
cafeconleche said:
Well I had 8 trips, so I definitely would have been over if either only the exit dates were counted as being outside the US, or both entry and exit dates were counted that way.
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You would have been over by only 2 days if exit dates counted towards full days. In the OP's case he's over by 20 days.
 
My travel document wasn't always stamped, but I used the dates of whatever stamps I did have, and then calculated the other dates based on what the stamps would have been, had they been applied. For example, when you go to Europe from the US, you arrive there the next day most of the time, and the European passport stamp would show that next day, so I would not go with that stamp to show when I left the US, but would go with the stamp the US would have applied, if they had exit controls.
 
The guidance in the USCIS publication states that days spent partially in the US count as full days. That's pretty explicit. They could have some arbritary rule they use that is based on say whether 50% of the day is spent in the US or not. Clearly though they didn't use that in my case as for numerous trips I made I had spent the majority of the arrival and departure date in the US - i.e. leaving in the afternoon and returning very early morning. I don't really understand the comment above that I would have an "unfair advantage". Ultimately if precedent and interpretation of the law is that partial days in count as full days in then I meet the criteria and the denial is incorrect. If they had applied a more rigorous approach i.e. checked the timing of my arrivals then this might suggest that there is a more precise rule in use. As it is they didn't - it's as if the calculation is just not correct.

To answer the other questions in this thread - I used the actual departure and arrival dates in the US, not passport stamps. In any event, the departure date never results in an exit stamp from the US - I have all the supporting data - itineraries, passport entry stamps, frequent flier records, receipts to show appropriate dates.

I guess I'll have more information on this on Friday after I speak to an officer at the Infopass thing - but if they give me an arbritary answer that does not explain why their published guidance is not being applied as they suggest - then I am likely to find a lawyer well versed in case law and appeal. Of course, they could just say "oops, our mistake" - hope springs eternal.

The other thing here is that for most people it would not be an issue if they miscalculated. I had some specific business activities which required a lot of travel - but had I been out for only 300 days - then even if they got the # wrong it would not have a material impact.

At the end of the day I don't see an obvious basis for counting only entry day rather than exit day without deeper explanation (i.e. 50% or less of time spent in the country on a particular day). It would be easy for the guidance to be clear if that were the case i.e. "You should count only one of your travel days as being in (or out) of the country for any given trip".
 
Also, re Bobsmyth's comment - if it's 2 days or 20 days over, it's over. It's a rule. It's not for the IO to give the 'benefit of the doubt' over a matter of law.

If it is under the amount of days then it meets the statutory bar. Physical presence is not subjective. If I have an angle to appeal that they are misinterpreting the law or applying it incorrectly I'm definitely appealing - I'm not waiting 8 months because they can't decide how to accurately apply a rule.
 
If you appeal with a lawyer I think you'll surely win on the physical presence issue. But that's if they're not allowed to use anything else against you that wasn't mentioned in the original denial letter, particularly your continuous residence. I'm not sure what the rules are on their ability to bring up new denial reasons in an appeal.
 
8 CFR § 336.2 Hearing before an immigration officer.

(b) Upon receipt of a timely request for a hearing, the Service shall schedule a review hearing before an immigration officer, within a reasonable period of time not to exceed 180 days from the date upon which the appeal is filed. The review shall be with an officer other than the officer who conducted the original examination under section 335 of the Act or who rendered the Service determination upon which the hearing is based, and who is classified at a grade level equal to or higher than the grade of the examining officer. The reviewing officer shall have the authority and discretion to review the application for naturalization, to examine the applicant, and either to affirm the findings and determination of the original examining officer or to redetermine the original decision of the Service in whole or in part. The reviewing officer shall also have the discretion to review any administrative record which was created as part of the examination procedures as well as Service files and reports. He or she may receive new evidence or take such additional testimony as may be deemed relevant to the applicant's eligibility for naturalization or which the applicant seeks to provide. Based upon the complexity of the issues to be reviewed or determined, and upon the necessity of conducting further examinations with respect to essential naturalization requirements, such as literacy or civics knowledge, the reviewing immigration officer may, in his or her discretion, conduct a full de novo hearing or may utilize a less formal review procedure, as he or she deems reasonable and in the interest of justice.
 
So that means they could agree the denial for insufficient physical presence was wrong, but then turn around and deny for breaking continuous residence.
 
Take a look at this thread:
http://forums.immigration.com/showthread.php?318119-Need-help-with-my-Citizenship-case
The guy was in a similar case and even appeal was rejected. Quote: "He said the earlier officer reviewed the case and found I was away for 915 days and he can not revoke that decision. The interview was only for 10 minutes" The appealing officer did not accept getting into the merit of date calculation method. The poster later reapplied and got his application approved.

One thing you can do is to communicate with the interviewing officer. The interview result sheet says you can direct any questions to the officer above (not sure how or where, i did not see the form). The officer may be nice enough to explain to you how the calculation is done. I think if you are not worried about other issues (e.g. cont. residency, criminal record, etc.), then it would be easier to get the few more days under your belt and apply again. Applying again seems to be faster than the long time and cost consuming process of fighting in court. I guess the trick is to understand how they did the calculation, otherwise, you may fall in the same problem again:(
 
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