URGENT HELP! Appeal VS ReFile

novi400

Registered Users (C)
Hi all, my application of citizenship is being turned down with the notification letter dated 14th Nov. The reason is that I was away the States (back to China) in 2004 and 2005 for too long and they think I don't show the intent to stay in USA. I was travelling back and forth between China and USA while for every 5 months (I read that I can't be staying overseas for more than 6 months) I will come back USA for about 2 weeks. And at that period of time, I was looking after my sick uncle and grandpa who lived in the hospital. Meanwhile I also worked in China as I had to earn a living. I also filed US TAX while I was in China. In AUG 2005 I came back and started working here since then. This is my breif story for the background.

So what should I do now? I got 3 more days to appeal before the deadline (30 days since I received the denial letter)! I also asked a couple of attorny and they are not positive for my case saying the chance is not good for the appeal and ask me to ReFile next year instead (as I've shown the "intent" that I stayed in here since 2005 AUG and work from then). I tought they are making sense and there are too many unknowns for the appeal thing, e.g. how long would that take? Your opinion is very valuable to me and I appreciate you guys in advance! Thank you.
 
Since you have 1 year to go before you re-file, i think it would be a better option. Not to steer you away from appealing...from what i have i read in this forum and other sites, the BIA (board of immigration appeals) normally sides with the initial finding after which the petitioner takes them to court if necessary. The whole process might take the same amount of time than to re-file. You have already paid the fees.

Basically the choice is yours pay the fee and file again, or go-on and fight this out on your own.

Good luck

___________________
Timeline
N-400: 09/01/05
FP: 09/22/05
Interview: 02/01/06 (name check pending)
1447b filed: 08/01/06
First Pre-Trial: 12/7/06
Oath: ???????
 
Thanks, Aka808. But is there any negative effect on my re-file next year if I don't appeal now (giving them impression that I don't want to FIGHT FOR IT?) ? Will it be a good idea that I should mail them in writing explaining my intent BUT I JUST CHOOSE TO REFILE INSTEAD OF APPEAL?
 
Search for continuous residence on this forum, there are a lot of helpful posts. A lot of people with history like you have been approved, since IO are not supposed to question absences less than 6 months. But, then depends in the IO you get and his interpretation. If you have filed US taxes, have a reentry permit, maintained a residence, had utility bills, worked for a US company in China that strengthens your case. I have a similar case as yours. I would personally appeal if denied. Also, are you applying based on marriage as otherwise it is a 4 year 1 day wait after you came back in august 2005.

novi400 said:
Hi all, my application of citizenship is being turned down with the notification letter dated 14th Nov. The reason is that I was away the States (back to China) in 2004 and 2005 for too long and they think I don't show the intent to stay in USA. I was travelling back and forth between China and USA while for every 5 months (I read that I can't be staying overseas for more than 6 months) I will come back USA for about 2 weeks. And at that period of time, I was looking after my sick uncle and grandpa who lived in the hospital. Meanwhile I also worked in China as I had to earn a living. I also filed US TAX while I was in China. In AUG 2005 I came back and started working here since then. This is my breif story for the background.

So what should I do now? I got 3 more days to appeal before the deadline (30 days since I received the denial letter)! I also asked a couple of attorny and they are not positive for my case saying the chance is not good for the appeal and ask me to ReFile next year instead (as I've shown the "intent" that I stayed in here since 2005 AUG and work from then). I tought they are making sense and there are too many unknowns for the appeal thing, e.g. how long would that take? Your opinion is very valuable to me and I appreciate you guys in advance! Thank you.
 
Anami, thanks, I would try to search and review the threads. During the period I was in China, I filed US Tax, still kept my US residence with utility bills. But I was working in a LOCAL China company at that time. I'm still single though.
 
novi400 said:
Anami, thanks, I would try to search and review the threads. During the period I was in China, I filed US Tax, still kept my US residence with utility bills. But I was working in a LOCAL China company at that time. I'm still single though.

I think if you maintained a residence and have utility bills that strengthens your case although working in a local china company is a negative. Does that company have a US branch? Did you have a reentry permit, since that shows your intent to come back? In my case, I talked to my company's lawyer (I was working for a US company in India) and she said that I should not have a problem.

They can deny the case on same basis next year since you need to have last 5 years of continuous residence. or 4 year and 1 month if you break it in between. If you do not appeal now you may be eligible to file only in Aug 2009.

The thing might be to use a good lawyer and get his advice. Where did you send your N-400 to?
 
This is an Administrative Action as far as your N-400 application concern, you do not file the apperal with BIA, rather it is an administrative apperal with Director of CIS. Depends on your result of the apperal, if you felt that you have been treated unfair, the next step will be appeal the decision with Federal District Court. It is diffrent path with BIA appreal which is over the Immigration Judge's dicision.

Find a good attorney to help you with your Administrative Appreal process. You will have better chance that way.
 
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novi400 said:
Anami, thanks, I would try to search and review the threads. During the period I was in China, I filed US Tax, still kept my US residence with utility bills. But I was working in a LOCAL China company at that time. I'm still single though.

Can you post your time line ?
 
I strongly suspect an appeal would be a waste of time. While not trying to restate the obvious, the single biggest factor against you case is the overseas local employment, and next up are the multiple short-duration return visits to the US used as a means to skirt the 6 month rule.

When a case such as yours is evaluated, the burden of proof is on the applicant to adequately demonstrate their intent to return to the US. Unless you have some new evidence to offer, you'll pretty much be in the same situation next time you apply. What you need to do now is wait to qualify under the 4yr+1day rule.
 
Anami: I didn't get the re-entry permit as I thought it's only necessary if I travel outside for more than 6 months. About the ReFile, two attorney are saying I can ReFile NEXT YEAR, so I'm a bit confused that since this time, USCIS says I broke the continuous residence, do I need to wait another 5 years since I came back last year? or I can still re-file next year?

Citizentobehz: Thank you for your clear explanation. Yes, the decision is made by the district director of my state's local CIS. Does that mean if I'm filing the appeal, it is solely depended on the director's judgement? By the way, is there any problem if I go to China for a 2-week vacation trip (still being employed in USA)?

lotechguy: the timeline is like this:
03/07/2004 - 08/21/2004 @China
08/22/2004 - 08/29/2004 @USA
08/30/2004 - 02/12/2005 @China
02/13/2005 - 02/20/2005 @USA
02/21/2005 - 08/07/2005 @China
08/08/2005 - NOW @USA


THANK YOU GUYS.
 
(I am not a lawyer - or even close)
As I understand it...

If you have broken "continuous residence" then you need to wait 4 years + 1 day from when you got back into the country.

If your lawyers are saying you only need to wait 1 year, then they are probably saying that your multiple 5 months stays did not break the statutory definition of continuous residence, but that your multiple stays outside the country indicate a lack of attachment to the US. I'm guessing they are saying that that can be cured by you spending a year in the US.

But, I'm not a lawyer. You might ask them for an explanation
 
novi400 said:
Anami: I didn't get the re-entry permit as I thought it's only necessary if I travel outside for more than 6 months. About the ReFile, two attorney are saying I can ReFile NEXT YEAR, so I'm a bit confused that since this time, USCIS says I broke the continuous residence, do I need to wait another 5 years since I came back last year? or I can still re-file next year?

Citizentobehz: Thank you for your clear explanation. Yes, the decision is made by the district director of my state's local CIS. Does that mean if I'm filing the appeal, it is solely depended on the director's judgement? By the way, is there any problem if I go to China for a 2-week vacation trip (still being employed in USA)?

lotechguy: the timeline is like this:
03/07/2004 - 08/21/2004 @China
08/22/2004 - 08/29/2004 @USA
08/30/2004 - 02/12/2005 @China
02/13/2005 - 02/20/2005 @USA
02/21/2005 - 08/07/2005 @China
08/08/2005 - NOW @USA


THANK YOU GUYS.

I think you can file an appeal stating that never out more than 6 months at a stretch, that your extended trips outside was for family reasons that you did maintain a residence in US and you have resided in US ever since family reasons for extended stay ended. You may have a chance on appeal. BTW when did you send in your N400 application and when was the interview and FP and what did the officer say in the interview ?
 
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Novi400, what's your timeline for N400?

Novi400,

When did you apply the citizenship? I think that's the key to why it's being denied.
 
I sent my application on Aug 11th, FP is in early Oct, Interview on Nov 7th. I did think that the Detroit CIS is pretty efficient! During the interview, the lady just asked me if I was working outside the States during 2004 and 2005 and I NEVER told her that the main purpose is to take care of my grandpa and uncle. Actually both of my parents and brother were still living in USA during that 2 years, but they are too old to take care of the ELDER persons. Then I received the denial letter dated Nov 14th. I'm really worried that if I don't file the appeal, I have to wait another 3 years as my family all passed the Interview TEST on the SAME DAY while my bro already went to the Oath Ceremony on Nov 28th!!! (How quick that is!). If I got to wait according to the 4yr + 1 day rule, I will try every means to FIGHT and APPEAL...
 
I just think of typing the content of the denial letter for details:

According to 8 CFR 316.2, an applicant for naturalization must reside in USA for a continuous period of Five years preceding the filing of the naturalization application. In addition, the applicant's residence is defined as the actual dwelling place as stated in 8 CFR 316.5(a). There is various evidence showing that your dwelling place, or the place where you lived, was not in USA. First, you were working in China, and only returned to the US during your brief periods of unemployment. Second, you were present in the US only 18 days out of the total 518 days between your dates of absence. Third, your brief returns to the US, and subsequent return to China for employment, show that you had no intent to reside in the US during this period. This evidence shows that it is not feasible that you were dwelling, or living, in the US during your periods of absence. Since continuity of residence is one factor in determining the eligibility of an applicant for naturalization, your failure to reside in the US renders the Service unable to determine that you qualify for natualization. Accordingly, your application must be, and is hereby, denied.
 
I would say that since you had immediate relations here as well as maintained a house in the US, it might be worth appealing the decision. You were within the law on continuous residence. It clearly states in the guide on immigration that if a single trip is within 6 months then you satisfy continuous residence. I guess you would have had a compelling reason to be in China so let them know of that also. Use a good lawyer and it might work. In case you do not appeal it now, this reason for denial is valid if you apply anytime before 4 years and 1 day from aug 2005.

novi400 said:
I just think of typing the content of the denial letter for details:

According to 8 CFR 316.2, an applicant for naturalization must reside in USA for a continuous period of Five years preceding the filing of the naturalization application. In addition, the applicant's residence is defined as the actual dwelling place as stated in 8 CFR 316.5(a). There is various evidence showing that your dwelling place, or the place where you lived, was not in USA. First, you were working in China, and only returned to the US during your brief periods of unemployment. Second, you were present in the US only 18 days out of the total 518 days between your dates of absence. Third, your brief returns to the US, and subsequent return to China for employment, show that you had no intent to reside in the US during this period. This evidence shows that it is not feasible that you were dwelling, or living, in the US during your periods of absence. Since continuity of residence is one factor in determining the eligibility of an applicant for naturalization, your failure to reside in the US renders the Service unable to determine that you qualify for natualization. Accordingly, your application must be, and is hereby, denied.
 
Novi400 said:
Citizentobehz: Thank you for your clear explanation. Yes, the decision is made by the district director of my state's local CIS. Does that mean if I'm filing the appeal, it is solely depended on the director's judgement? By the way, is there any problem if I go to China for a 2-week vacation trip (still being employed in USA)?

Novi400,

"Administrator of Apperal" is handled by a special gruop of individual who reprecent the USCIS for any administrative procedues and regulations, not just a single "administrator" from the district, even though, your case will still be juidicated at your district.

It is also important to know that filing an apperal solely on your own will reduce the succesful rate shapely. With an experienced attorney, (s)he will using some past case laws and juidication examples that can represents your case in similarity.

NOTE: I am not an attorney and just express my own opinion.
 
Anami said:
I would say that since you had immediate relations here as well as maintained a house in the US, it might be worth appealing the decision. You were within the law on continuous residence. It clearly states in the guide on immigration that if a single trip is within 6 months then you satisfy continuous residence. I guess you would have had a compelling reason to be in China so let them know of that also. Use a good lawyer and it might work. In case you do not appeal it now, this reason for denial is valid if you apply anytime before 4 years and 1 day from aug 2005.

But unfortunately none of those "immediate relatives" was a spouse or son/daughter, so they don't count for much to show a reason to return to the US.
 
Novi400:

Can you let us know exactly what the lady has asked in the interview? What's your answer to the question "if I was working outside the States during 2004 and 2005" ? Did she asked why you have been away from USA for almost 1 and 1/2 years? Did she said in the inerview itself the application is denied? Did she asked more questions or simply guessed from the dates of absence?


These are the negative things:
1) Though you have not broken any rule including six month continuous residence rule, just staying in USA for periods of two weeks shows the your intent is just to get citizenship. Staying since August continuously just for the inerview confirms that belief.
2) Working overseas is very negative. If your overseas assignment is temporary in nature and is for a USA subsidiary company and your are on a temporary assignment, then it's different. Otherwise you should not have mentioned that you worked overseas.


Applying after a year may or may not benifit you. The more time you stay in USA before you apply again, the more are the chances. That's why your lawyer suggested to apply after a year. But a year might be short period to prove your intent to stay in USA is genuine. The letter did not say you have broken continuous residence, because you are not.

You can appeal (if it takes shorter time and you have a lot of positive evidence). The more solid evidence, the better are the chances:
1) Show lease agreement to prove your maintenance of residence, rent payment bills, utility bills, bank statements, driver's licence, car insurance, credit card statements and all other bills etc.
2) Tax filings.
3) Get a letter from your company that the overseas assignment is temporary and the work is for a USA based company. You have to show the work agreement, assignment letter with clear starting and ending dates, the nature of work etc
4) Taking care of grand parents may not be a valid reason, as this is your parents responsibility. Since your parents stayed here during that time, that's may not be a good primary excuse.
5) Any other solid positive evidence you might think of.
 
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Anami: "In case you do not appeal it now, this reason for denial is valid if you apply anytime before 4 years and 1 day from aug 2005." I'm very confused here, my attorney says I can choose to refile 1 or 2 years later, this is contradict here.

John Sreedhar: I said "I was working there at that time because I have to earn a living." The lady didn't have a conclusion for my case in the interview and she said she need to ask for her superisor's decision , that is why I have waited for 1 week or so for the letter of decision. Oh yes, other than that, she didn't ask anything else. For the evidence, sadly that all the bills and rents are paid by my father (he is writing the check while I still give him money to support the family). For other things that you listed, I think I can provide them.
 
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