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

Bobsmyth said:
There have been reported instances where an obvious error by an IO that resulted in a denial was overturned via Infopass appointment without having to go through formal appeals process or payment of the appeal fee. The OP has nothing to loose by going to an Infopass and requesting to speak with a supervisor regarding how partial days are calculated. In fact, this type of informal appeal process has been acknowledged by USCIS.
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Valid point Bob, but this ain't one of those cases. Whoever rendered the decision did so on some basis, and an Infopass appointment may provide clarification, it is not going to fix it. Examples of obvious errors listed are in the PDF "correction of name or date of birth" as long as "they were entered correctly on the application" and CIS made a typo.

The OP should still go and find out what happened.
 
sanjoseaug20 said:
.. but this ain't one of those cases.
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A miscalculation of dates is a possible reason for such an informal appeals, if in deed it can be shown that the mistake is USCIS's and not the applicant's.



Another option to correct a clear Service error without incurring a motion filing fee is to informally advise USCIS of the error. At a field office, applicants or petitioners may inform USCIS of clear Service error in person through an INFOPASS appointment or through stakeholder organizations that bring meritorious cases to the attention of USCIS via email or liaison meetings.

http://www.dhs.gov/xlibrary/assets/cisomb_recommendation_42_5-15-09.pdf
 
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Jackolantern said:
Point taken, but if USCIS is handling a calculation inconsistently from IO to IO, and they've also published something saying that partial days are counted as full days in the US, the court is not going to side with USCIS in a case like this unless there is some other overriding basis.

You're suggesting that such an overriding basis could be that it doesn't make sense to count somebody with your 915-trips-of-24-hours as having zero days outside the US. Perhaps the courts would agree with that, but I don't see that as a compelling point either. There is plenty of precedent counting for partial days as full days in various aspects of the law, even if it might look funny in some rare (perhaps nonexistent) scenarios like what you described.


Whether this individual will appeal is one thing, and what the court decision would be is another. I agree that appealing it up to the BIA or Federal court level is unlikely unless a lawyer decides to take the case pro bono for the sake of the reputation of arguing/winning a precedent in a high court.
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I am finding this thread very enjoyable to watch unfold. I just have to interject one small but critical point. The BIA has absolutely nothing to do with an N-400 denial. Neither does the AAO.

The N-400 has a "Second Hearing" via the N-336 at the same local office by another Officer and then goes to the District Court, then can be appealed to the Circuit Court of Appeals and finally to the Supreme Court.
 
Jackolantern said:
Here it refers to half of the past 5 years:
<removing URL as i can't post if the URL is kept>
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It looks like what Bobsmyth is quoting is actually from a copy of the field adjucator's manual, as later sections of that URL deal with denials etc. The source I used was the gpoaccess website which gives access to the USC directly - and that's clear on half the time...
 
BigJoe5 said:
The BIA has absolutely nothing to do with an N-400 denial. Neither does the AAO.
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The BIA and AAO can be involved in the naturalization appeals process.

Q. What happens when I file an appeal?

A. When an applicant or petitioner appeals a decision to the AAO, the officer who made the original decision will first review the record. A review of the record will determine whether the evidence or argument submitted in the appeal warrants reopening or reconsidering the decision. If the adjudicating officer determines that reopening or reconsidering the decision is not warranted, the officer will forward the case for further review to the AAO or the BIA

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=343df95c93228210VgnVCM100000082ca60aRCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD


The same goes with motions to reconsider via I-290B.
 
Bobsmyth said:
The BIA and AAO can be involved in the naturalization appeals process.

Q. What happens when I file an appeal?

A. When an applicant or petitioner appeals a decision to the AAO, the officer who made the original decision will first review the record. A review of the record will determine whether the evidence or argument submitted in the appeal warrants reopening or reconsidering the decision. If the adjudicating officer determines that reopening or reconsidering the decision is not warranted, the officer will forward the case for further review to the AAO or the BIA

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=343df95c93228210VgnVCM100000082ca60aRCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD


The same goes with motions to reconsider via I-290B.
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Bob,

That page is strictly talking about I-290B Appeals and Motions or EOIR-29 Appeals. The N-400 is "appealed" via the form N-336 which does not involve the BIA or AAO. N-400's are outside their areas of jurisdiction.

HEARINGS ON DENIALS OF APPLICATIONS FOR NATURALIZATION

INA Sec. 336. [8 U.S.C. 1447]

(a) If, after an examination under section 335 , an application for naturalization is denied, the applicant may request a hearing before an immigration officer.

(b) If there is a failure to make a determination under section 335 before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.

(c) The Attorney General shall have the right to appear before any immigration officer in any naturalization proceedings for the purpose of cross-examining the applicant and the witnesses produced in support of the application concerning any matter touching or in any way affecting the applicant's right to admission to citizenship, and shall have the right to call witnesses, including the applicant, produce evidence, and be heard in opposition to, or in favor of, the granting of any application in naturaliza tion proceedings.

(d) The immigration officer shall, if the applicant requests it at the time of filing the request for the hearing, issue a subpoena for the witnesses named by such applicant to appear upon the day set for the hearing, but in case such witnesses cannot be produced upon the hearing other witnesses may be summoned upon notice to the Attorney General, in such manner and at such time as the Attorney General may by regulation prescribe. Such subpoenas may be enforced in the same manner as subpoenas under section 335(b) may be enforced.

(e) It shall be lawful at the time and as a part of the administration by a court of the oath of allegiance under section 337(a) for the court, in its discretion, upon the bona fide prayer of the applicant included in an appropriate petition to the court, to make a decree changing the name of said person, and the certificate of naturalization shall be issued in accordance therewith.

NATURALIZATION AUTHORITY

INA Sec. 310. [8 U.S.C. 1421]

*****
(c) Judicial Review.-A person whose application for naturalization under this title is denied, after a hearing before an immigration officer under section 336(a) , may seek review of such denial before the United States district court for the district in which such person resides in accordance with chapter 7 of title 5, United States Code. Such review shall be de novo, and the court shall make its own findings of fact and conclusions of law and shall, at the request of the petitioner, conduct a hearing de novo on the application.

(d) Sole Procedure.-A person may only be naturalized as a citizen of the United States in the manner and under the conditions prescribed in this title and not otherwise.

NOTE: "This Title" is Title III of the INA. The I-290B is filed under authorities found in Title I [which also covers Title II benefits] and is implemented via 8 CFR 103.3 (appeals). 103.4 (certifications), and 103.5 (motions). A few items in Title III do afford appeals and motions via the I-290B to the AAO (N-470, N-565, and N-600) but the N-400 is in a league of its own and has the N-336 under a distinct appeals path. An I-290B could be filed BUT it would only be for a Motion to the deciding officer and it should be rejected and the applicant instructed to file an N-336 instead.
 
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I've seen few comments in the thread that suggests dates calculation is subject to IO interpretation, and i dont think it is. It is a black box though. During my interview, the officer told me he will use the date calculator he has and looked at the screen. I also heard from an attorney that they have their own date calculator. My problem was not an issue of number of days, so it was just a minor comment.
I think there is a standard way used by USCIS to calculate days, but we don't know the logic of that
 
cars said:
I've seen few comments in the thread that suggests dates calculation is subject to IO interpretation, and i dont think it is. It is a black box though. During my interview, the officer told me he will use the date calculator he has and looked at the screen. I also heard from an attorney that they have their own date calculator. My problem was not an issue of number of days, so it was just a minor comment.
I think there is a standard way used by USCIS to calculate days, but we don't know the logic of that
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I think it is not a question of using the calculator, but what to feed in the calculator.
You can feed "Subtract July 1 from July 9" into CIS calculators and ours. And it should always give the same answer. The question we are battling is whether CIS is entering "Subtract July 1 from July 10" OR "Subtract July 2 from July 9" or subtract "July 1 from July 9" or "Subtract July 2 from July 10". And whether they are allowed to use different models especially when their documentation is clear on some aspects, but silent on others. If it was so black and white, the OP will not be here.

And come to think of it, even though you can credit the bureaucracy with writing detailed manuals, this is an extreme situation. I would expect less than 0.1 percent of the applicants falling in the range where you have to actually count the days in such a way. And even within denials, many of the rejects might have other issues like continuous residence and this might be peripheral to those. And that's why they probably did not go and fix their documents to be consistent. [ Or maybe they know but are scared to fix their process as people will sue them claiming unfair treatment. They are probably waiting for courts to tell them to fix it. ]

It will be interesting to see some statistics on this aspect though.
 
I believe they put in entry date and exit date, the date calculator does how many days out. So, its a matter of what logic is used by date calculator
 
BigJoe5 said:
Bob,

That page is strictly talking about I-290B Appeals and Motions or EOIR-29 Appeals. The N-400 is "appealed" via the form N-336 which does not involve the BIA or AAO. N-400's are outside their areas of jurisdiction.
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I stand corrected. The same page includes the wording for naturalization appeals, thus I (incorrectly) assumed the BIA and AAO are involved with naturalization appeals as well. Thanks for the clarification BigJoe.
 
For those interested, I went for my infopass appointment this morning which was a waste of time really. The lady I spoke to just didn't seem to understand what I was trying to tell her. After a circular conversation during which I showed her the part of the 'guide to naturalization' which talked about the partial days (her comment to that was that that part 'didn't make sense'). In any event she went to find someone who 'worked on naturalization' and the response from that person was that if I felt the officer had made an error I should appeal.

So at this stage, I'm going to talk to a lawyer and most probably appeal. If the appeal is successful then it means I have to wait less time - and maybe it will help others to have this clarified...I will of course update this thread with the happenings.
 
this sucks that you would have to spend money on lawyer and appeal for them to learn how to understand the giude they have published.
I am sure you were not expecting that response from USCIS............
 
I guess I was optimistically at least hoping for some kind of intelligent discussion this morning rather than what happened - which was something that made the DMV look like a paragon of good customer service and intellect.
 
Not surprising since I've read bad things about Fed plaza.(ie: bad customer service)
If you do appeal and end up winning due to USCIS mistake, you might be able to get your appeal fee refunded.
 
Unfortunate. Sorry you're having to go through this. I was afraid I would be denied because of this reason too, and I'm glad it somehow got overlooked, or the dates calculated the way I did.

Good luck.
 
The frustrating thing about this morning is that they didn't give me any valuable information - if they'd said "Ahh, what this really means is...blah" it would have been useful. Waste of a morning.
 
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