UNITED STATES DEPARTMENT OF HOMELAND SECURITY CITIZENSHIP AND IMMIGRATION SERVICES. In the Matter of: ) Brief in Support of N-336 Request

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1 UNITED STATES DEPARTMENT OF HOMELAND SECURITY CITIZENSHIP AND IMMIGRATION SERVICES In the Matter of: ) Brief in Support of N-336 Request Petitioner: Jane Doe ) for Hearing on a Decision in A: xxx-xxx-xxx ) Naturalization Proceedings BRIEF IN SUPPORT OF N-336 REQUEST FOR HEARING ON A DECISION IN NATURALIZATION PROCEEDINGS Pursuant to INA 316 (8 CFR 316.2) the Petitioner, Jane Doe, seeks status as a United States citizen. 1. Procedural history Applicant, Jane Doe, first arrived in the United States from India on a K3 nonimmigrant visa on August 2, On April 23, 2008, Applicant and then petitioner ex-husband applied to adjust status based on an approved I-130 Petition for Alien Relative. Applicant and her ex-husband appeared for their I-485 interview on December 4, 2008 at which time Applicant revealed their marital difficulties. 1 A decision on Applicant s application was not rendered at that time. Following their interview, Applicant and ex-husband were divorced on December 16, Two months later, on February 17, 2009, Applicant s application to adjust status was approved and she became a lawful permanent resident. The instant action first arose out of Applicant s efforts to naturalize on January 21, Applicant applied on grounds of having resided continuously within the United States for a period of at least five years following her lawful admission as a permanent resident. 8 CFR 316.2(a)(3). On April 24, 2014, Applicant appeared for her interview, and on January 28, 2015 Applicant s application was denied on grounds she had ceased to be a spouse of a U.S. citizen prior to its approval. 3 On March 2, 2015 Applicant submitted form N-336 Request for a Hearing on a Decision in Naturalization Proceedings and was granted a hearing on August 13, Legal analysis To merit classification as a United States citizen, a lawful permanent resident must 1 Exhibit 2, Request for Applicant to Appear for Initial Interview 2 Exhibit 3, Divorce Decree 3 Exhibit 4, Naturalization Decision 1

2 demonstrate under INA 315 (8 USC 1427) (CFR 316.2) that the resident: 1) Is at least 18 years of age; 2) Has been lawfully admitted as a permanent resident of the United States; 3) Has resided continuously within the United States for a period of at least five years after having been lawfully admitted for permanent residence; 4) Has been physically present in the United States for at least 30 months of the five years preceding the date of filing; 5) Has resided for at least three months in the state having jurisdiction over the applicants actual place of residence for the three months immediately preceding the filing of the application; 6) Has resided continuously within the United States from the date of application for naturalization up to the time of admission to citizenship; 7) Has been and continues to be a person of good moral character, attached to the principals of the constitution and favorably disposed toward the good order and happiness of the united states; and 8) Is not a person relating to the deserters of the United States armed forces or those persons who departed from the United States to evade military service. Of the aforementioned requirements, only Applicant s lawful admission as a permanent resident is in question here. This is defined under 8 USC 1101(a)(20) as the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws. Ros v. Napolitano, 2013 WL , *7 (July 11, 2013). Nonetheless, in establishing that one meets the requirements for naturalization, the applicant bears the burden of showing her eligibility for citizenship in every respect and must do so by establishing by a preponderance of the evidence that one is eligible to naturalize. Berenyi v. Dist. Dir., INS, 385 U.S. 630, 637, 87 S.Ct. 666, 17 L.Ed.2d 656 (1967); 8 CFR 3e16.2(b). A. Divorce subsequent to an application to adjust status is not a bar to receiving lawful permanent residency Although Applicant lawfully received a grant of lawful permanent residency, the denial of her application to naturalize is based upon her receipt of that status in error. In other words, USCIS contends Applicant is not eligible to naturalize because her divorce roughly two weeks following her I-485 interview rendered her ineligible to legally adjust status. However, recent case law suggests Applicant s divorce should not overshadow her good faith marriage. In Choin v. Mukasey, 537 F.3d 1116 (9th Cir.2008), a Russian citizen who entered on a fiancée visa but whom divorced her husband while her application to adjust was being adjudicated could not be automatically precluded from naturalization, even though her marriage ended in divorce. Alimoradi v. U.S. Citizenship & Immigration Services, 2009 WL , *6 (Feb. 10, 2009). 4 In reaching this decision, the Court examined INA 245(d), which says in part: 4 Exhibit 5, Choin v. Mukasey, 537 F.3d 1116 (9th Cir.2008) 2

3 the Attorney General may not adjust the status of a [K Visa holder] except to that of an alien lawfully admitted to the United States on a conditional basis under section 1186a of this title as a result of the marriage of the nonimmigrant to the citizen who filed the [K Visa petition]. Of note here is the phrase as a result of the marriage of the non-immigrant. In interpreting the statute, the court noted the facial ambiguity of the statement and found the statute to mean the application must be based on the fact of the marriage, and not, as the Government argued, one that is continuing in duration. In other words, a divorce in and of itself does not invalidate one s ability to obtain a green card, a fact reaffirmed by the Immigration Marriage Fraud Amendments of As noted in Choin, if the marriage has ended before the joint petition can be filed, the non-citizen can apply for a waiver by showing that her marriage was entered into in good faith and that the immigrant was not at fault for failing to file the joint petition to remove conditions. Id. at In essence, even if a marriage has dissolved, a method is available to waive the requirement of a continuing marriage within the first two years if the applicant can establish the marriage was initially entered into in good faith. Here, Applicant divorced on December 16, 2008, but at no time was the validity of her marriage called into question. Rather, this issue was favorably adjudicated prior to the issuance of her K3 Visa and arrival in As such, under a Choin analysis, Applicant s lawful permanent residency could not have been conferred in error as it was the result of the marriage of the nonimmigrant, and per the Choin court s holding, based on the fact of the marriage. B. Applicant s lawful permanent residency has not been rescinded or subject to a negative adjudication and has therefore not been issued in error Applicant applied to adjust status on April 23, 2008, was granted lawful permanent residency on February 17, 2009, and, as of this writing, meets the requirements necessary to successfully naturalize. Since and including that time, USICS has taken no action to rescinded Applicant s status, and she has both remained in status and abided by all the rules and regulations therein. Under 8 USC 1427 (INA 316), Applicant s status confers upon her the right to apply for naturalization. To retroactively allege that her status was granted in error absent a formal declaration or investigation is fundamentally unfair. Moreover, the instant denial is an adjudication upon her application to naturalize, not adjustment of status. USCIS has had ample opportunities within the past five years to render an opinion and rescind her permanent residency but has either chosen not to, or internally found her status to be valid. Consequently, her status as a permanent resident stands as soundly as it did upon its granting in February C. In the event Applicant s status was issued in error, the five year statute of limitations promulgated in 8 USC 1256(a) bars adjudication of matters relative to its validity 3

4 If Applicant s permanent residency were subject to questions of validity, the government would nevertheless be time barred from questioning the legality of the decision. Under 8 USC 1256(a): If, at any time within five years after the status of a person has been otherwise adjusted to that of an alien lawfully admitted for permanent residence, it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status, the Attorney General shall rescind the action taken granting an adjustment of status to such person and the person shall thereupon be subject to all provisions of this chapter to the same extent as if the adjustment of status had not been made. Case law is settled in the area of recession. In Bamidele v. INS, 99 F.3d 557 (3d Cir.1996) the court held the running of the limitation period bars the rescission of Bamidele's permanent resident status and, in the absence of the commission of any other offense, thereby bars initiation of deportation proceedings in this case. Garcia v. Atty. Gen. of U.S., 553 F.3d 724, 726 (3d Cir.2009) (finding that Bamidele retains its precedential authority. ) The aforementioned statute and case law revels Applicant s status as a lawful permanent resident is no longer subject to question let alone revocation. In Bamidle, the 3 rd Circuit specifically refuted the idea that the Department of Homeland Security could commence removal proceedings against the defendant on adjustment grounds outside the five year window, stating: [i]t defies logic to say that facts known to the INS within five years of Bamidele's adjustment of status and which would form the basis of a rescission action (had the INS taken timely action) should also empower the INS to deport Bamidele. Id. at 564. Allowing deportation in such circumstances would effectively read 246(a) out of existence. Garcia v. Atty. Gen. of U.S., 553 F.3d 724, 726 (3d Cir.2009). USCIS is attempting to adopt the same logic here by alleging that Applicant s access to future immigration benefits are restricted because of facts known within the five years of [Applicant s] adjustment of status and which [could have] formed the basis of a recession. To permit the adoption of this logic would be a perversion of the statute and allow USCIS to complete an end run around the limitations period by effectuating punishment through other means. Five years are allotted subsequent to an awarding of status to adjudicate the status of one s permanent residency and take action to rescind. Permitting USCIS to rely upon facts fatal to one s legal status subsequent to an adjudication on residency would be contrary to the logic in Bamidele and permit USCIS to reach back through the statute of limitations and punish Applicant. 3. CONCLUSION The existing case law and regulations clearly demonstrate that Applicant is deserving of citizenship. Precedent promulgated in Cholin establishes that the granting of permanent residency is contingent only upon the fact of marriage, not its continuation. Here, it would have been disingenuous for Applicant to have remained in her marriage beyond the point of reconciliation merely to obtain an immigration benefit. Additionally, USCIS is by its own 4

5 admission time barred from adjudicating alleged past errors in the context of adjustment where five years have passed. As such, the granting of Applicant s permanent residency should be found not to be in error, and she should be afforded the benefits of U.S. citizenship. 5