Naturalization and Marriage Annulment

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uhuruniyetu

Registered Users (C)
Hi all:
I have two issues:
A) I am thinking of applying for naturalization. I have had my green card for almost 10 yrs. The issue of concern is that I went through marriage annulment instead of divorce, and my green card was sponsored by my ex wife. The annulment was based on "significant misunderstanding"-- nothing like fraud, polygamy, etc. It should have been divorce but I agreed to annulment since at the time it sounded like the best option (so we can move on with our lives without carrying the stigma of divorce). Annulment was in 2002 after we had been married since 1997 (after receiving my 10 yr green card).

B) Unfortunately, I got a DUI (1st offender) in 2001. This is a misdemeanor situation but still very serious offense. I am afraid it may reflect negatively on me.

Is it possible to apply for naturalization if my marriage was annulled & I have a DUI conviction on my record?
 
uhuruniyetu said:
Hi all:
I have two issues:
A) I am thinking of applying for naturalization. I have had my green card for almost 10 yrs. The issue of concern is that I went through marriage annulment instead of divorce, and my green card was sponsored by my ex wife. The annulment was based on "significant misunderstanding"-- nothing like fraud, polygamy, etc. It should have been divorce but I agreed to annulment since at the time it sounded like the best option (so we can move on with our lives without carrying the stigma of divorce). Annulment was in 2002 after we had been married since 1997 (after receiving my 10 yr green card).

B) Unfortunately, I got a DUI (1st offender) in 2001. This is a misdemeanor situation but still very serious offense. I am afraid it may reflect negatively on me.

Is it possible to apply for naturalization if my marriage was annulled & I have a DUI conviction on my record?
Click to expand...

Not sure about the annulment issue - you may want to consult an immigration lawyer about this. On one hand, you were married from 1997 to 2002, about 5 years, and USCIS usually considers marriages that lasted that long to be bona fide valid marriages. On the other hand, by getting an annulment rather than a divorce you are legally admitting that the marriage was never valid to begin with. So consulting a lawyer is probably a good idea.

About the 2001 DUI: it happened significantly more than 5 years ago and lies well outside the 5 year statutory period relevant to the good moral character determination. So, if you don't have any other, more recent, issues, that DUI will not prevent your N-400 from being approved. However, you will still need to disclose the DIU in your N-400 application and provide documentation regarding its disposition.
 
You need a very good attorney, at this point IF they find out about the annulment IF USCIS wants they can even move to have the approval of adjustment of status to that of LPR revoked.
 
"stigma" of divorce. What world do you live in? 1 in 2 marriages end up in divorce.
Your green card was based on the basis of marriage. An annulled marriage is like the marriage never ever happened. That means the basis of your green card is also not valid. I strongly recommend that you go through an attorney because at the citizen interview all material in your file is reviewed.
 
Here is a link to an old Board of Immigration Appeals decision from 1974:
http://www.justice.gov/eoir/vll/intdec/vol14/2271.pdf

The decision basically said that because the marriage was annulled in California and because under the California law an annulment means that the marriage is void ab initio ("from the beginning"), regardless of the reasons for the annulment, and that therefore the adjustment of status of the appellant was properly revoked, in view of the marriage annulment. This is an old decision and I don't know if it still stands or if it has been superceeded by some subsequent developments. However, if that BIA decision is still operative, it would appear that the USCIS may use the annulment of the marriage as a reason to revoke the OP's green card, in which case submitting an N-400 application would be a really bad idea. Another relevant factor here is the specifics related to the annulment laws in the state where annulment was granted. In any event, this certainly looks to be the case where the OP needs to spend some money on consulting with an immigration lawyer (and maybe even more than one).
 
The decision basically said that because the marriage was annulled in California and because under the California law an annulment means that the marriage is void ab initio ("from the beginning"), regardless of the reasons for the annulment, and that therefore the adjustment of status of the appellant was properly revoked, in view of the marriage annulment. This is an old decision and I don't know if it still stands or if it has been superceeded by some subsequent developments. However, if that BIA decision is still operative, it would appear that the USCIS may use the annulment of the marriage as a reason to revoke the OP's green card, in which case submitting an N-400 application would be a really bad idea. Another relevant factor here is the specifics related to the annulment laws in the state where annulment was granted. In any event, this certainly looks to be the case where the OP needs to spend some money on consulting with an immigration lawyer (and maybe even more than one).[/QUOTE]

I spoke to four lawyers:

Lawyer #1: highly recommends me going forward with the naturalization process. He seems to think that annulment vs. divorce is irrelevant if you are applying based on having had the green card for over 5 yrs.

Lawyer #2: wants to move with caution. He says that if the immigration asks too many questions, we can just recall the whole application e.g. send them a letter saying that I am withdrawing my application.

Lawyer #3: said I should NOT apply. Annulment means that the marriage never took place. Only apply after taking care of the annulment (assuming it is possible to change it to divorce).

Lawyer #4: cant discuss this issue without official consultation.. charges $150 consultation fee.. wanted my credit card. Seems like after my money than helping me..

The decision boils down to: is it worth risking the GC for a possible chance at getting naturalization? My position is that even if the risk is 1%, I shouldn’t go on with this process. I am not talking about the risk of being denied citizenship; I am talking about risking my green card (if it is revoked).

I wish I wasn’t in this situation.

Thanks.
 
The decision basically said that because the marriage was annulled in California and because under the California law an annulment means that the marriage is void ab initio ("from the beginning"), regardless of the reasons for the annulment, and that therefore the adjustment of status of the appellant was properly revoked, in view of the marriage annulment. This is an old decision and I don't know if it still stands or if it has been superceeded by some subsequent developments. However, if that BIA decision is still operative, it would appear that the USCIS may use the annulment of the marriage as a reason to revoke the OP's green card, in which case submitting an N-400 application would be a really bad idea. Another relevant factor here is the specifics related to the annulment laws in the state where annulment was granted. In any event, this certainly looks to be the case where the OP needs to spend some money on consulting with an immigration lawyer (and maybe even more than one).
Click to expand...

I spoke to four lawyers:

Lawyer #1: highly recommends me going forward with the naturalization process. He seems to think that annulment vs. divorce is irrelevant if you are applying based on having had the green card for over 5 yrs.

Lawyer #2: wants to move with caution. He says that if the immigration asks too many questions, we can just recall the whole application e.g. send them a letter saying that I am withdrawing my application.

Lawyer #3: said I should NOT apply. Annulment means that the marriage never took place. Only apply after taking care of the annulment (assuming it is possible to change it to divorce).

Lawyer #4: cant discuss this issue without official consultation.. charges $150 consultation fee.. wanted my credit card. Seems like after my money than helping me..

The decision boils down to: is it worth risking the GC for a possible chance at getting naturalization? My position is that even if the risk is 1%, I shouldn’t go on with this process. I am not talking about the risk of being denied citizenship; I am talking about risking my green card (if it is revoked).

I wish I wasn’t in this situation.

Thanks.
 
uhuruniyetu said:
I spoke to four lawyers:

Lawyer #1: highly recommends me going forward with the naturalization process. He seems to think that annulment vs. divorce is irrelevant if you are applying based on having had the green card for over 5 yrs.

Lawyer #2: wants to move with caution. He says that if the immigration asks too many questions, we can just recall the whole application e.g. send them a letter saying that I am withdrawing my application.

Lawyer #3: said I should NOT apply. Annulment means that the marriage never took place. Only apply after taking care of the annulment (assuming it is possible to change it to divorce).

Lawyer #4: cant discuss this issue without official consultation.. charges $150 consultation fee.. wanted my credit card. Seems like after my money than helping me..

The decision boils down to: is it worth risking the GC for a possible chance at getting naturalization? My position is that even if the risk is 1%, I shouldn’t go on with this process. I am not talking about the risk of being denied citizenship; I am talking about risking my green card (if it is revoked).

I wish I wasn’t in this situation.

Thanks.
Click to expand...

Interesting. The fact that there is that much disagreement between the lawyers about this issue is fairly surprising. It may indicate that they do not have any first-hand experience in dealing with the issue of annulment in the immigration context, and are just guessing.

Looking at some of the current USCIS forms and documents, one can actually find some indication that USCIS treats annulment as equivalent to divorce.

For example, in the application instructions for I-751 (application to remove conditions on residence), there is a portion dealing with the situation where the applicant requests a waiver of the joint filing requirement (joint with the spouse who sponsored the original GC application):
http://www.uscis.gov/files/form/i-751instr.pdf

On p. 2 of the instructions it says:
"If you are filing to waive the joint filing requirement because your marriage has been terminated, submit a copy of the divorce decree or other document terminating or annuling the marriage with your petition".

The USCIS adjudicator's field manual also mentions annulment in the context of I-751 adjudication:
http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-11685/0-0-0-11691.html

It says in particular:

"(2) Waiver .


The conditional permanent resident, acting alone, may apply (also on Form I-751 ) for a waiver of the requirement to file the joint petition. See 8 CFR 216.5 .The waiver may be filed at any time (i.e., before, during or after the 90-day filing window). The waiver may be sought if the joint petition cannot be filed due to:

* The termination of the marriage through annulment, divorce, or the death of the petitioning spouse".

This appears to indicate that USCIS does not currently view an annulment of the marriage as an automatic reason to deny a pending I-751 application. If that is so, the same logic would imply that USCIS should not try to revoke the LPR status of someone with a regular (10 year validity) green card just because the marriage that was used as a basis for that GC application has been annuled. However, this is rather speculative and indirect. Sometimes the wording in application instructions and even in the adjudicator's field manual is arcane and does not reflect the current practices. Basically, you really need to find an immigration lawyer (or lawyers) with direct experience regarding the annulment issue.
 
Many attornyes do not have first hand experience in many cases outside of a clean slate application, they will all give you differing advise. I will HIGHLY recommend that you contact these guys, they are one of the best (if not the best) with immigration cases, that is all they do and have several federal case laws with various twists that are referenced in other cases. Call them ASAP and get professional advise and let them help you, it does not matter if you are in the same state as they are, USCIS is federal law observed throughout the US regardless where you and/or your attorney's office is; http://www.bretzlaw.com/federal-decisions/ (on this page you can read some of their federal decisions including those that have been ordered deported).

In my opinion, I think you should certainly explore the possibility of changing your annulment to divorce. Check with the state where you did it and ask them specifically how possible that is because if it is possible then that should remove any doubts you may have.
 
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Thank you all. If I can be 100% certain that USCIS will NOT revoke my green card, then, this is an easy deal; just apply for naturalization and if denied write that off as a waste of US$680. However, opening the possibility of losing my LPR status is a big deal. A good attorney should give me a straight fwd answer about whether or not applying would risk my LPR status.

Thanks all.
 
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