Write of Mandamus and US citizenship denial

2

2triedwithUSCIS

Registered Users (C)
Dear all,

After years of suffering while dealing with the USCIS matters now I'm under so much confusion and not quite sure how to begin. I'll try my very best to give you all the details and hoping for the guideline of how to proceed next.

Please allow me to give your some background;

I came to the US under a work visa in 2001 then got married in 2003, filed for Adjust of status base on married to a US. citizen. Gone to an interview for the green card and pass the interview but told at the end of the interview that my name check was not done.


I have been waiting for over two years then filed the Write of Mandamus. During those two years I have tried to contact the USCIS regarding the case the only answer was the same 'incompletion of name check' and been told to wait. Of course I'm a law abiding citizen and have so much faith in the government system and did exactly was I told; wait.

After two years of waiting and miss my mother's; who is in my home country funeral I have filed the Write of Mandamus and during the process I found out and comfirmed with an Email through the FBI office that my case was not to be found in the system. Yes this means the USCIS has lost my paper work and they have told me to wait all along these years.

Dear all, having said all of these my only intention today is I stated above, please guild me to the right direction and getting the result with the right approaches.

The result of Writ of Mandamus was I granted the permanent resident in May 2006. After been married for six years and going through so much my ex-husband and I have recently divorced in March 2009. I filed for US. citizenship in April 2009 and recently get a denial letter stating;

…since you are no longer living in marital union with your United State Citizen spouse of whom you were granted permanent residence from, you are not eligible for naturalization under 319(a) of the Immigration and Nationality Act. Therefore, you application for naturalization is hereby denied.

The frustrations and confusion are too great here and I'm have no one to turn to. A long with the denial latter I also received the N-336, Request for a Hearing on a Decision.

With the information stated above should or can if I so decided to file the N-336 are there's changes for me of getting a citizenship? If so under which regulations, Section or Act. should I be referring to?


Thank you in advance for your kind comments,

2triedwithUSCIS
 
There is zero chance of success if you appeal. You were not married at the time of applying for citizenship. Why did you expect to be approved? To qualify with the 3 year rule you need to still be married to a US citizen when you apply, and stay married without being separated or filing for divorce throughout the entire citizenship process.

You will be eligible to apply under the 5 year rule in Feb. 2011 (90 days before your 5-year GC anniversary).
 
2triedwithUSCIS said:
l I have filed the Write of Mandamus and during the process I found out and comfirmed with an Email through the FBI office that my case was not to be found in the system. Yes this means the USCIS has lost my paper work and they have told me to wait all along these years.

The result of Writ of Mandamus was I granted the permanent resident in May 2006.
Click to expand...
So they suddenly found your case file after you filed WOM?



2triedwithUSCIS said:
With the information stated above should or can if I so decided to file the N-336 are there's changes for me of getting a citizenship? If so under which regulations, Section or Act. should I be referring to?
Click to expand...

There's no point in appealing since you weren't eligible.
 
Thank you Jackolantern,

Refer to this article




Who is eligible for naturalization?

An applicant is eligible to file if, immediately preceding the filing of the application, he or she:

must be at least 18 years old.
has been lawfully admitted for permanent residence (see preceding section);
has resided continuously as a lawful permanent resident in the U.S. for at least 5 years prior to filing with absences from the United States totaling no more than one year;
has been physically present in the United States for at least 30 months out of the previous five years (absences of more than six months but less than one year break the continuity of residence unless the applicant can establish that he or she did not abandon his or her residence during such period)
has resided within a state or district for at least three months.
must show that he or she has been a person of good moral character for the statutory period (typically five years or three years if married to a U.S. citizen or one year for Armed Forces expedite) prior to filing for naturalization.

I thought I'm qualified because;
I have been married and lived with my US. citizen spouse for over six years

Due the your words as quote 'You were not married at the time of applying for citizenship' is this a requirement of applying for a US citizenship? One has to be married during the time of applying? If so please be so kind and provide me the source of it to get me some light , thank you.

Furthermore, are there any possibility of back up the permanent resident date due to the cause of Write of Mandamus filing?

With all due respects,

2treidwithUSCIS
 
from 8 CFR 319.1:

(a) Eligibility. To be eligible for naturalization under Section 319(a) of the Act, the spouse of a United States citizen must establish that he or she:


(1) Has been lawfully admitted for permanent residence to the United States;


(2) Has resided continuously within the United States, as defined under § 316.5 of this chapter, for a period of at least three years after having been lawfully admitted for permanent residence;


(3) Has been living in marital union with the citizen spouse for the three years preceding the date of examination on the application, and the spouse has been a United States citizen for the duration of that three year period;


(4) Has been physically present in the United States for periods totaling at least 18 months;


(5) Has resided, as defined in § 316.5 of this chapter, for at least 3 months immediately preceding the filing of the application, or immediately preceding the examination on the application if the application was filed early pursuant to Section 334(a) of the Act and the three month period falls within the required period of residence under Section 316(a) or 319(a) of the Act, in the State or Service district having jurisdiction over the alien's actual place of residence and in which the alien has filed the application;


(6) Has resided continuously within the United States from the date of application for naturalization until the time of admission to citizenship;


(7) For all relevant periods under this paragraph, has been and continues to be a person of good moral character, attached to the principles of the Constitution of the United States, and favorably disposed toward the good order and happiness of the United States; and


(8) Has complied with all other requirements for naturalization as provided in part 316 of this chapter, except for those contained in § 316.2(a)(3) through 316.2(a)(5) of this chapter.


(b) Marital union.


(1) General. An applicant lives in marital union with a citizen spouse if the applicant actually resides with his or her current spouse. The burden is on the applicant to establish, in each individual case, that a particular marital union satisfies the requirements of this part.


(2) Loss of Marital Union.


(i) Divorce, death or expatriation. A person is ineligible for naturalization as the spouse of a United States citizen under Section 319(a) of the Act if, before or after the filing of the application, the marital union ceases to exist due to death or divorce, or the citizen spouse has expatriated. Eligibility is not restored to an applicant whose relationship to the citizen spouse terminates before the applicant's admission to citizenship, even though the applicant subsequently marries another United States citizen.


(ii) Separation.


(A) Legal separation. Any legal separation will break the continuity of the marital union required for purposes of this part.


(B) Informal separation. Any informal separation that suggests the possibility of marital disunity will be evaluated on a case-by-case basis to determine whether it is sufficient enough to signify the dissolution of the marital union.
 
Dear Bobsmyth,

'So they suddenly found your case file after you filed WOM?'
Yes! my case just mysteriously appeared and approved lest then a month of the date of WOM and I got a call from the FBI, the general attorney office and so on at my dinner time along with other unbelievable things that happened to me and my ex. I do not believed that at first but...

'There's no point in appealing since you weren't eligible'
Thank you for the confirmation

2triedwithUSCIS
 
This part needs to be big and bold.
sunny808 said:
(2) Loss of Marital Union.

(i) Divorce, death or expatriation. A person is ineligible for naturalization as the spouse of a United States citizen under Section 319(a) of the Act if, before or after the filing of the application, the marital union ceases to exist due to death or divorce, or the citizen spouse has expatriated. Eligibility is not restored to an applicant whose relationship to the citizen spouse terminates before the applicant's admission to citizenship, even though the applicant subsequently marries another United States citizen.
Click to expand...
 
Many Thanks to Jackolantern

From: FBINNCO@ic.fbi.gov
Sent: Thusday, December xx, 2004 9:xxAM
Subject: RE:A>>>my A number

Dear>>>me
This is reference to your email dated October xx, 2004, cocerning your immigration status.

A review of the FBI's Name check Program database does not indicate that a request has ever been received from the USCIS. Therefore, you may wish to recontact the USCIS's local office for further processing of you case.

Bla Bla Bla

Sincerely yours,

David M. Hardy
National Name Check Program Section
Records Management Division
 
2triedwithUSCIS, the bottom line, as the others explained to you via references to regulations, you were not eligible to derive US Citizenship eligibility benefits under 3 years as marital union was dissolved. Unfortunately, the prior issues with the case (delay, etc) is irrelevant

I would not waste any time for appeal for N-400. Wait and apply under 5 rule with a new application for n-400. Nothing to worry unless the marriage was a set-up to get GC.
 
2triedwithUSCIS said:
Thank you Jackolantern,

Refer to this article




Who is eligible for naturalization?

An applicant is eligible to file if, immediately preceding the filing of the application, he or she:

must be at least 18 years old.
has been lawfully admitted for permanent residence (see preceding section);
has resided continuously as a lawful permanent resident in the U.S. for at least 5 years prior to filing with absences from the United States totaling no more than one year;
has been physically present in the United States for at least 30 months out of the previous five years (absences of more than six months but less than one year break the continuity of residence unless the applicant can establish that he or she did not abandon his or her residence during such period)
has resided within a state or district for at least three months.
must show that he or she has been a person of good moral character for the statutory period (typically five years or three years if married to a U.S. citizen or one year for Armed Forces expedite) prior to filing for naturalization.

I thought I'm qualified because;
I have been married and lived with my US. citizen spouse for over six years

Due the your words as quote 'You were not married at the time of applying for citizenship' is this a requirement of applying for a US citizenship? One has to be married during the time of applying? If so please be so kind and provide me the source of it to get me some light , thank you.

Furthermore, are there any possibility of back up the permanent resident date due to the cause of Write of Mandamus filing?

With all due respects,

2treidwithUSCIS
Click to expand...

The clock starts from the time you became a Permanent resident. The time of marriage before that allowed you to get a non-conditional green card. So, you have only been a permanent resident for <3 years. As you are not currently married to the US Citizen, you can file for citizenship 5 yrs - 90 (85 to be safe) days from the 'Resident Since' date on your Green Card.

There is no way to back-date LPR due to Processing delays. I wish there was, as I could have applied to be a citizen 3 years ago.
 
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