Natz Denial and filing of appeal-any one through this

S

smali

Registered Users (C)
Natz denial pending I-751 waiver application.

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This is recent update on the ongoing saga on my I-751 waiver pending adjudication at VSC. Please bear with me, as it is little detailed case background

my joint I-751 was approved in Sep 2004 but I was divorced in Jul 2004. I filed first N-400 in Oct 2006 based on 5 yrs. I was placed in removal due to the above fact. I filed a second I-751 good faith waiver in Jul 2007, which is still pending at VSC although web site processing Sep 2007. My removal proceedings terminated in Nov 2007. Filed second N-400 in Dec 2007 concurrently anticipation that I-751 shall be approved before natz interview. The web site did update a month before natz but mine was not one adjudicated. 10 yr GC revoked in Jan 2008. Natz interview in Aug 2008. Went very well and passed. The IO stated that they have the power to adjudicate my I-751. Received natz denial based on that GC was revoked, Did not say anything about pending I-751. Now, given 30 days to appeal. I am thinking of these lines:

1. File the appeal and pay $605.
2. At appeal interview, ask officer to try to get the I-751 from VSC and adjudicate.
3. If officer does not agree to call for I-751 adjudication, file a motion at Federal District Court to force re=evaluation of natz and force CIS to adjudicate I-751 waive. First I-751 was approved without interview due to very good documentation of marriage. I was plaintiff in my divorce due to metal cruelty by USC spouse.

Any comments? I have been in contact with my congress and senator but are not very helpful. I have been remarried and now need to file for my current wife who is on F-1. What is most expeditious and prudent approach. what I am hoping is to receive either an I-751 approval in mail or interview call some time soon but am not sure if USCIS will do their job unless forced to. It also seems they filed I-751 waiver under my permanent GC file receipt number. Although they keep telling me on phone they know and I got temp stamp in passport, but the file was not present at natz interview.
 
When and how long did your first marriage last?
When did you first obtain GC based on marriage?
If your GC was revoked in Jan 2008, what is your current immigration status?
What happened with first naturalization application? Was it adjudicated?
 
So reading between the lines, it sounds like your GC was revoked because you lied on your initial I-751? i.e. you filed jointly for removal of conditions after you were already divorced.

It would seem you need to solve the GC problem before you concern yourself with the N-400 process. Hope you've got a good lawyer working on the case.
 
boatbod said:
So reading between the lines, it sounds like your GC was revoked because you lied on your initial I-751? i.e. you filed jointly for removal of conditions after you were already divorced.
.
Click to expand...

The OP indicated he/she filed I-751 before the divorce and I-751 was approved after the divorce. Where does your assumption of lying on I-751 come from?
 
Sounds like you need to file Wom to force adjudication of the second waiver first. It won't guarantee an approval though. If USCIS denies the waiver, you are out of status.
 
I don't get it. Does he now have a GC or not, i.e., is the removal case done and is he ok or not? I would think that's the threshold question.
 
Natz denied only because i-751 is pending

Here is the Bottom Line: Every thing else is clear in my situation except I-751. There is no lying or cheating and neither I have been charged with any of that. I have been (in my opinion, being penalized for CIS adjudication delays, and we all know about them. CIS does not decide on one case and denies the other because they do not have time to adjudicate the other) My lawyer (I do have one all along) expert opinion was that they should have held my N-400 adjudication in abeyance until I-751 was approved.

I suppose I can start WOM for delay on I-751 independent of N-400 appeal being considered.? That will force CIS to start adjudicating I-751.

The bottom line is that "The day my I-751 is approved, I am kind of automatic Citizen. You get my drift, as my application was approved pending I-751, That is what I was told at interview, in a sense."

My previous marraige lasted about 3 1/2 years. I filed for divorce due mental cruelty as I could not take the abuse any more.

My removal proceeedings were terminated and now I am still in what is called "Conditional Resident Status i.e. It is a GC, until I-751 is adjudicated. My priority date for Natz stays the same as my original AOS date of 1/2002 (I read the rules on CIS site).

My dilemma is

1). Shall I proceed with WOM for I-751 alone (been pending for 14 months now) OR

2). Wait for N-336 (appeal on Natz) and see if officer adjudicated the I-751 than or may be I-751 decision is mailed to me before than. Thsi may take another 6 months to a year. I would like to get my citizenship quickly because I need to file for my wife, who is going to school etc.

Bob, Jack, LAZYCIS (Lazy, you know exactly waht I am talking about), Choopy please shed light. Give me skinny. I do not want to delay but I do not want to overkill.

My lawyer wanted me to sit on my ass and do nothing. I am the one who filed Natz and got atleast somewhere, although it may be a denial.

I find that with in the CIS, one department does not know what the other is doing. they do not talk to each other, and due to lazyness of one, will deny the other benefit, which is depending on the adjudication of first benefit.
 
smali said:
... I was plaintiff in my divorce due to metal :D cruelty by USC spouse. ...
Click to expand...
You weren't denied because your I-751 is pending. You were denied because you're out of status. Your pending I-751 has no relavance to your N-400. Your GC (or Permanent Resident status) was terminated in Jan 2008 which means you're out of status since Jan 2008. Pending/approved I-751 does not and will NOT change that. Being out of status makes you ineligible for citizenship.

Cheers.
 
Bobsmyth said:
The OP indicated he/she filed I-751 before the divorce and I-751 was approved after the divorce. Where does your assumption of lying on I-751 come from?
Click to expand...

The OP knew about the divorce prior to I-751 approval, therefore it would have been a misrepresentation for the OP to claim he and his spouse were living together as husband & wife. Presumably the facts about divorce date surfaced as a result of the N-400 filing in 2006, and as a result he was placed in removal proceedings along with GC revocation.

Anyway, its a pretty pickle now, and the only thing to do is to work on the I-751 approval. Naturalization is clearly out of the question at this point, as is any fantasy notion of being an "automatic citizen" in the event of GC reinstatement.
 
Where did you get the idea of misrepresentation

boatbod said:
The OP knew about the divorce prior to I-751 approval, therefore it would have been a misrepresentation for the OP to claim he and his spouse were living together as husband & wife. Presumably the facts about divorce date surfaced as a result of the N-400 filing in 2006, and as a result he was placed in removal proceedings along with GC revocation.

Anyway, its a pretty pickle now, and the only thing to do is to work on the I-751 approval. Naturalization is clearly out of the question at this point, as is any fantasy notion of being an "automatic citizen" in the event of GC reinstatement.
Click to expand...

The approval came couple of weeks after divorce. Let me ask you, HOW many ordinary immigrants know about CIS NSC Flash issued in 2003 about "that your approval is in error if it was issued couple of days after divorce" You think does every immigrant knows this. and Let me ask this.
Why did the approval came after the divorce, because. you guessed it that CIS could have sent approval two months earlier and every thing should have been fine. They kept sitting on their ass too long to adjudicate (almost 11 months) and life is dynamic, it does not wait for some fat ass burucrat to sign a piece of paper, so the divorce came along.

Moreover, If I knew about the 2003 NSC flash (its not in INA), I could have stalled the divorce process for atleast two months more, as I was the moving party. Why could not I have, if knew about the flash.

Their was no verbal or written misreprsentation any where, as alleged. Every fact was clearly written in First N-400 application. Nothing was hidden thus the I-862.

Why is some one saying I am out of status. You guys are no help. My status is reverted back to CR-6 from IR-6. Go do your research before stating that I am out of status. I am allowed to travel and employment until my pending I-751 is decided. I only want those people to respond who are knowldgeable and did their research, not every tom and dicken please, or poople who can not write correct english. Thanks:eek:
 
Read whole INA, CFR 8, all flashes and CIS internal memo

I have read all relevant parts of INA, CFR 8 and all relevent RAC Flashes and internal memo's on I-751 and N-400 and it is UNDISPUTED fact as per BIA decision in 1998 that as per the intent of the congress, an alien's permanent resident is not "terminated" until it is terminated by either IJ or if an appeal is filed, than by the BIA (Board of immigration appeal). (Although the BIA decision can be challenged at Court of Federal appeal,which can reinstate the status, but it terminates after BIA and not before the BIA).That is the reason after initiating a removal proceedings, CIS sends you to an IJ and not start rounding you up to send you to airport. (Does some one know that heppened to a permanent resident, may be not. They always send you to IJ and not airport). As per US Congress, the CIS can grant one's PR status but CAN NOT terminate until it is terminated "JUDICIALLY". You get my drift. You can go to BIA web site and research this case decision your self and read it again and again.my removal case was "terminated" by IJ. You read it right, the status was NOT terminated but the case was terminated. There is a difference between the two. Thanks for reading and paying attention.

Now answer my questions as posed earlier, before you guys start jumping to conclusions prematurely.:cool:
 
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smali said:
The approval came couple of weeks after divorce.
Click to expand...

Divorces don't just happen overnight. They take months to go through the court system, and I'll therefore wager you knew your marriage was in trouble long before the I-751 approval, possibly even before you applied for removal of conditions.
 
smali said:
Here is the Bottom Line: Every thing else is clear in my situation except I-751. There is no lying or cheating and neither I have been charged with any of that. I have been (in my opinion, being penalized for CIS adjudication delays, and we all know about them. CIS does not decide on one case and denies the other because they do not have time to adjudicate the other) My lawyer (I do have one all along) expert opinion was that they should have held my N-400 adjudication in abeyance until I-751 was approved.

I suppose I can start WOM for delay on I-751 independent of N-400 appeal being considered.? That will force CIS to start adjudicating I-751.

The bottom line is that "The day my I-751 is approved, I am kind of automatic Citizen. You get my drift, as my application was approved pending I-751, That is what I was told at interview, in a sense."

My previous marraige lasted about 3 1/2 years. I filed for divorce due mental cruelty as I could not take the abuse any more.

My removal proceeedings were terminated and now I am still in what is called "Conditional Resident Status i.e. It is a GC, until I-751 is adjudicated. My priority date for Natz stays the same as my original AOS date of 1/2002 (I read the rules on CIS site).

My dilemma is

1). Shall I proceed with WOM for I-751 alone (been pending for 14 months now) OR

2). Wait for N-336 (appeal on Natz) and see if officer adjudicated the I-751 than or may be I-751 decision is mailed to me before than. Thsi may take another 6 months to a year. I would like to get my citizenship quickly because I need to file for my wife, who is going to school etc.

Bob, Jack, LAZYCIS (Lazy, you know exactly waht I am talking about), Choopy please shed light. Give me skinny. I do not want to delay but I do not want to overkill.

My lawyer wanted me to sit on my ass and do nothing. I am the one who filed Natz and got atleast somewhere, although it may be a denial.

I find that with in the CIS, one department does not know what the other is doing. they do not talk to each other, and due to lazyness of one, will deny the other benefit, which is depending on the adjudication of first benefit.
Click to expand...

It's better to do an overkill in immigration matters. File Wom for second I-751, wait for N-336 results and if N-336 is denied, file a 8 USC 1421(c) suit disputing first I-751 denial and subsequent N-400 denial.
 
Smali,

I understand your frustration with CIS regarding the slow process and agree that if CIS could speed up the adjunction of your old I-751 and approve it before your divorce, you would be fine.

However, the I-751 is automatically not approvable if the underline marriage was dissolved. That's how the "conditional GC" was designed for. I don't think you need to be an expert on immigration to know this. Just like if someone's relative filed I-130/I-485 for him and during the long process unfortunately the relative dies, there would be no basis for the approval of I130/I485 and the petition has to be denied. Some 9/11 victim's relatives (even with approved I 130 and at I-485 stage) were in this boat and their I485s could not be approved. Another example is I-140/I-485. In the old days (before AC-21) you had to stay in the same job from labor certification until your I485 was approved (usually 3-5 years or longer). If you lost your job during the time, sorry, you lost everything and you have to start all over again).

Yes you can blame the INS/USCIS for their slow process, but this is the current situation and is a risk every immigrant has to take and a process we all suffer. Nevertheless, either stay with the same job (not easy, believe me) or stay with the same marriage (I understand also, it's very tough to do in your case), it's the price you or everyone has to pay.
 
boatbod said:
Divorces don't just happen overnight. They take months to go through the court system, and I'll therefore wager you knew your marriage was in trouble long before the I-751 approval, possibly even before you applied for removal of conditions.
Click to expand...

thanks for your reply. your assumption is not correct here. the i-751 took 11 months to approve. the marriage started going down the hill about three months after filing after my visit abroad. i filed for divorce six months after filing and got divorced in three months, so total 9 months after filing. it happened pretty quick. yes, i was the divorce filer in this case. i could have it filed two months late and may be suffered the abuse a little longer if i knew about repurcussions.
 
lazycis said:
It's better to do an overkill in immigration matters. File Wom for second I-751, wait for N-336 results and if N-336 is denied, file a 8 USC 1421(c) suit disputing first I-751 denial and subsequent N-400 denial.
Click to expand...

thanks for your reply. in this case it may be a little overreaching to ask them to reinstate my joint i-751 as the cis does have BIA case law supporting them. But I can always compell CIS to adjudicate my good faith marriage I-751 to adjudicate and hopefully it will be decided in my favour and hence have the N-400 adjudicated simultaneously. this is the best I can do by filing a WOM. My lawyer is kind of hopibng that may be this case may be decided by the n-336 officer, but I do not think so. one cis officer watches the back of the other cis officer. This case must be goinbg for a WOM, as much I do not want to have it drag that far but I can not help it. CIS is draging me to go there by not acting timely.
 
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Natz Denial..any comments

I think I am going with the advice to file the appeal, wait for appeal denial and than go for WOM. I shall fire my current attorney and find some one who is twice good and may be as much expensive. I am already down $5000 for my small mistake of filing divorce earlier and I am lokking at 5000 more to go to court. I have to absorb this 10K slap due to my own mistake of filing early.
 
smali said:
thanks for your reply. your assumption is not correct here. the i-751 took 11 months to approve. the marriage started going down the hill about three months after filing after my visit abroad. i filed for divorce six months after filing and got divorced in three months, so total 9 months after filing. it happened pretty quick. yes, i was the divorce filer in this case. i could have it filed two months late and may be suffered the abuse a little longer if i knew about repurcussions.
Click to expand...

Well, you did know about the divorce 5 months before your I-751 approval.
What you should have done was file the waiver as soon as you were divorced. The way it is now, your credibility is shot since it appears you were trying to conceal a fundamental change of eligibility in order to get your 10yr GC. From a USCIS perspective, how is this anything other than a case of lying (by omission) in order to secure an immigration benefit?

Sorry, I'm not saying this to be judgmental, but I do think you've got a few problems ahead of you. Maybe you'll have better luck convincing a judge that you were given bad advice and acted out of ignorance of the proper process. With ample evidence of the "abusive" marriage, you can probably prevail with the I-751 case. Citizenship should be a secondary concern at this point.
 
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