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After submitting N-336, USCIS reaffirmed decision to deny N-400 saying that I90 was approved in error. Any way out of the limbo?

Miami, FL |

I was born in Brazil 1978.
My mother born in the US in 10/16/1952, also to US Citizens (Deceased grandparents, Baptist Church Ministers overseas, difficult to prove mother's 10 years physical presence in US per travel).
I was brought to US in 1984 was given a green card, however did not reside in US after 1987. Family went back to fathers country.
Father died 1995. Mother started work in US embassy and died 2002.
Returned to US in 2004 and was able to renew my green card. Showed foreign passport (tourist visa), was advised to complete I-90. Approved.
In 2009 submitted N-400 and was denied in 2011 by USCIS saying that I-90 was approved in error. Officer let me keep GC, did not place me in removal proceedings. GC expires 12/31/2015.
No criminal record, DUI, paid taxes, own a home.

Admitted in 2004 as visitor, no intention to overstay illegally. Went to USCIS office in DC to ask about my options, if nothing could be done I would go back to my fathers country. The officer saw my foreign passport with a visitor 10 year visa (6 months for that entry) and saw my expired green card. Said I should complete I-90. Before I knew it I was doing my fingerprints and passport stamped with I-551. I invested almost 9 years of my life in US because I was approved to do so and I took the opportunity. Now I am in limbo because of an error by USCIS and I see them trying to amend it by not deporting me, but it is still a delicate and very unfair situation. I have two brothers that went through the same situation in 2 different times...an error was committed 3 times? 2009 I past the citizenship test at my interview and was pulled out of the line on my way to do the oath. I never had the intention to lie or confuse a US immigration officer.

Attorney Answers 5

Posted

You need to immediately seek to consult with and hopefully hire a competent immigration
Lawyer in your area. Your problem is much too complex to be solved in a general forum such as this.

Behar Intl. Counsel 619.234.5962 Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.

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Posted

Thank you for your response. I agree I need to see an expert lawyer as this is a complex case, however, the process from N-336, appeal and hearing was done under representation of a lawyer. I just want to know if there is a chance this can be resolved...and if another lawyer could make a difference. Thanks again

Posted

You should consider yourself fortunate not to have been placed in removal proceedings. I can think of no good argument why the officer was incorrect in finding that your I-90 was approved in error. It seems clear that your parents abandoned their U.S. residency in 1987 and since you were a minor, their intent is attributed to you. You should start looking for a way to apply for permanent residency since it is quite possible that your card will not be renewed in 2015 for exactly this reason.

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Posted

Michael, thank you for your response. I added additional info to my question. You are correct and I agree it was an error but it was not my error and now 9 years have passed and I have a life made here already. If would not had applied for N-400, I would had gone through 2015 with out this problem and surely renewing my GC again. However, you do have an interesting point, do you think there is a path to apply for permanent residency in my case? Should I wait for immigration reform? Thank you again.

Michael E. Piston

Michael E. Piston

Posted

Unfortunately, once an abandonment occurs, the only way of overcoming it is for you to qualify for permanent residency again. If there is someone who can petition for you - a permanent resident or citizen spouse or parent, an adult citizen child, a U.S. citizen sibling , or an employer - they should do so immediately. Meanwhile you may benefit from the current proposal introduced in the Senate in that it would give a legal status to anyone who has been in the U.S. unlawfully since 12/31/11 which, according to the USCIS, should include you.

Posted

The government appears to be correct .. you abandoned your residence in the US in 1987.

Consider hiring a private detective to find more information on mother's residence in the US. Passport applications ... etc. may help.

PROFESSOR OF IMMIGRATION LAW for over 10 years -- This blog posting is offered for informational purposes only. It does not constitute an attorney-client relationship. Also, keep in mind that this is an INTERNET BLOG. You should not rely on anything you read here to make decisions which impact on your life. Meet with an attorney, via Skype, or in person, to obtain competent personal and professional guidance.

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Posted

Thank you FJ, I have started to work on trying to gather info and see if I can prove my mother's physical presence for 10 years...will be difficult but will give it a shot. Thank you!

F. J. Capriotti III

F. J. Capriotti III

Posted

Yes .. give it a shot .. research tools are getting better and better when it comes to ancestry.

Posted

It would appear that you abandoned your residence in when you departed in 1987 and did not return until 2004. It is unclear from your facts, however, whether you were admitted in 2004 using your visitor's visa or as a returning resident. Likewise, if you considered yourself to be a resident why did you apply for a visitor's visa? The two are mutually inconsistent.

While we don't know all the facts in detail, this case would very well turn on how you were admitted to the United States when you returned in 2004. If you were admitted as a resident, then the abandonment issue would not be relevant because the decision is made by CBP, not USCIS. The applicable regulations provide that you can apply for naturalization after accruing 4 years and 1 day of continuous residence after having broken the continuity of your residence by being outside the U.S. for more than 1 year.

Naturalization, while seeming simple on its face, is one of the most complicated facets of immigration law You need to consult with an immigration attorney who has experience litiigating naturalization cases. The attorney needs to review the denial of your application for naturalization and administration appeal in conjunction with learning the full and complete facts of your case. Only then can a determination be made as to whether you can become an American Citizen.

While this answer is provided by a Florida Bar Certified Expert in Immigration and Nationality Law, it is for general information purposes only and an attorney/client relationship is neither intended nor created. You should seek out qualified counsel to review your case and provide you with advice specific to your situation. Call +1-561-478-5353 to schedule a consultation with Mr. Devore.

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Posted

Thank you for responding. I put additional information in my question. Unfortunately, after I received the denial, I hired a lawyer, submitted N-336 and was represented at hearing with an outcome of reaffirming the denial. I just want to see if another lawyer could make a difference or if I have a chance to turn this case in my favor. Thanks again...

Jeffrey Adam Devore

Jeffrey Adam Devore

Posted

None of the facts you presented change my response above. You are asking for individualized advise. No one is going to be able to properly advise you until they had read the previous denials. Just because you had a lawyer handle your appeal does not mean that a) your case was handled properly; and b) that USCIS' decision was correct. The fact that you were told to file an I-90 with a USCIS employee is not controlling in any way. The questions that need to be answered are what are the controlling facts of your case, what is the applicable law, and whether the law was properly applied to those facts. Without reviewing your case in detail there is no way to answer those questions. USCIS is not responsible for giving you legal advice. Thus, absent proof that the advice given to you was intentionally wrong there is no liability on the agency's part. Time makes no difference. The fact that you were admitted as a visitor, however, is problematic and needs to be addressed. You do have the right to seek review of the USCIS decision in Federal Court. Whether it makes sense to do so will of course depend on the decision issued by USCIS. This forum is not the place to get individualized advice. If you were so confident in your lawyer's ability to handle the matter you wouldn't be asking questions here. Consult with an attorney experienced in naturalization litigation as i recommended above. There are a limited number of lawyers who will have handled these types of cases.

Posted

You need to consult in person with an immigration attorney. There may be a way out of this, however more information is needed.

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Posted

Thank you for you response Jesus. I just put addition info in my question. I did have legal representation after my N-400 was denied the first time. I was represented from N-336 to hearing with final decision to confirm denial. Would another lawyer make a difference?

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