Dissection of an improper n 470 denial---may 14, 2011
One Bad N-470 Decision After AnotherA dissection of an incorrect N-470 denial decision made at the USCIS Newark Office and erroneously upheld by AAO over Five Years Laterhttp://www.uscis.gov/err/E1%20-%20Application%20to%20Preserve%20Residence%20for%20Naturalization/Decisions_Issued_in_2010/Jul272010_02E1316.pdf “DISCUSSION: The Form N-470, Application to Preserve Residence for Naturalization Purposes (N-470 Application) was denied by the District Director, Newark, New Jersey. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be summarily dismissed, and the N-470 application will be denied.Note that the actual date of the Director’s Decision is not stated. As the Appeal was submitted onApril 21, 2005, the denial could not have been dated prior to March 18, 2005 or it would have beenrejected as untimely, right?...It is likely dated after that. As will become apparent, this applicant has shown a history of NOTputting things off the last second!IF the Director denied it after March 24, 2005, THEN the initial denial was in error because thestatute and regulation specifically direct the LPR to file BEFORE losing the ability to file at all.The applicant is informed by the statute and regulation that she has a limited window of opportunityto file in order to preserve continuous residence for a future application for naturalization at whichtime she will have to prove that her absence was for the stated and intended purpose previouslydisclosed.See INA § 316(b)(1) and 8 CFR 316.5(d)(1)(i) for the “up front” requirement and “limited windowof opportunity”.See INA § 316(b)(2) for the “back-end” burden of proof at time of proving eligibility fornaturalization. The applicant seeks to preserve her residence for naturalization purposes pursuant to section 316(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1427(b). The district director determined that the applicant was not eligible for consideration under section 316(b) of the Act because she failed to demonstrate that she was physically present in the United States for a continuous period of at least one year after being lawfully admitted for permanent residence in the United States. In the present matter, the applicant was lawfully admitted for permanent residence in the United States on March 24, 2004, and subsequently filed the current petition on January 20, 2005, two months prior to the one year mark. The application was denied accordingly. On April 21, 2005, the petitioner submitted the Form I-290B to appeal the denial of the underlying petition. The petitioner marked the box at part two of the Form I-290B to
Review of an N-470 Dismissed by AAO---Five Years Late 2010 indicate that no supplemental brief and/or additional evidence will be submitted. Thus, the AAO deems the record complete as currently constituted. An officer to whom an appeal is taken shall summarily dismiss any appeal when the party concerned fails to identify specifically any erroneous conclusion of law or statement of fact for the appeal. 8 C.F.R. § 103.3(a)(l)(v).8 CFR § 103.5 Reopening or reconsideration.(a) Motions to reopen or reconsider in other than special agricultural worker and legalizationcases. ......(2) Requirements for motion to reopen. A motion to reopen must state the new facts to beprovided in the reopened proceeding and be supported by affidavits or other documentaryevidence. ...... (3) Requirements for motion to reconsider. A motion to reconsider must state the reasons forreconsideration and be supported by any pertinent precedent decisions to establish that thedecision was based on an incorrect application of law or Service policy. A motion to reconsider adecision on an application or petition must, when filed, also establish that the decision wasincorrect based on the evidence of record at the time of the initial decision.This was a Pro Se filing and the applicant should have been given some leeway. I see that itprobably qualifies as BOTH types of Motion. As a Motion to Reopen, the passage of time has cured the defect as to eligibility. That was a new fact to be proven. IF the Director or AAO had any articulable doubt as to the applicant actually having remained in the U.S., this was not stated. The first stated reason for denial was the applicant had not yet had a full uninterrupted year of physical presence inside the U.S. as an LPR. The applicant submitted a statement on the Form I-290B “As my stay is now over a year, I humbly request to accept this appeal to Preserve Residence for Naturalization.” Neither the Director nor the AAO questioned the veracity of the Applicant’s statement. A Form I-290B is signed under penalty of perjury and therefore, her statement constitutes one of the “affidavits or other documentary evidence” as contemplated by the regulations. As a Motion to Reconsider, it is less clear because the date of the Director’s Initial Decision is not stated in the AAO Dismissal. However, as of the filing date of the I-290B, the deficiency had been overcome through the passage of time regardless of whether it was technically correct or not on the date of the initial decision. The Reviewing Officer should have treated the Appeal as a Motion, Granted the Motion, and Approved the Application. Lastly, the date of the AAO Dismissal is a shameful July 27, 2010, for an Appeal that was filed on April 21, 2005. Over a Five-Year delay, she may be a USC already. It should either have been dismissed as moot or granted nunc pro tunc.
Review of an N-470 Dismissed by AAO---Five Years Late 2010 On the Form I-290B, the petitioner states the following: My application to Preserve Residence for Naturalization has been denied as the application was submitted before the uninterrupted period of one year after lawful admission for permanent residence. In this respect I want to state that my intended date of departure (27th Apr. 05) as mentioned in application is about a month after one year of uninterrupted stay in USA. I applied earlier to allow time for decision. As my stay is now over a year, I humbly request to accept this appeal to Preserve Residence for Naturalization. In regard to the directors conclusions that the applicant failed to submit sufficient evidence to show that the she has been present in the United States for an uninterrupted time of one year, the applicant fails to identify any erroneous conclusion of law or statement of fact for the appeal. In fact, the applicant acknowledges that she applied prior to the end of the one year period of time in the United States. As no additional evidence is presented on appeal to overcome the decision of the director, the appeal will be summarily dismissed in accordance with 8 C.F.R. § 103.3(a)(l)(v).“...the directors conclusions that the applicant failed to submit sufficient evidence to show thatthe she has been present in the United States for an uninterrupted time of one year...” IF theDirector had properly considered the Appeal as a Motion, the case would not have reached theAAO.Due to the fact that the date of the original denial is not stated, one can only speculate as towhether the Director:1.) made a proper initial decision under the statute and regulation,2.) incorrectly gave too much weight to his interpretation of form instructions that areambiguous, at best and ultra vires, at worst, or3.) hurriedly made a decision before March 24, 2005, in an effort to be mean-spirited.“As no additional evidence is presented on appeal...” is either a naive mischaracterization of, or ablatant failure to give proper weight to, the I-290B statement made under penalty of perjury. The applicant requests on appeal to approve the application since by the time the appeal was filed, one year of uninterrupted time in the United States had passed. The applicant must establish eligibility at the time of filing the application. An application may not be approved at a future date after the applicant becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978).”Once again, AAO is misapplying a perfectly good precedent outside its intended context.“Eligibility at time of filing” is misplaced in most Title III adjudications. Approval is warrantedwhen eligibility is proven to the satisfaction of the deciding official at time of adjudication.While an N-400 has specific prerequisites to be met before the filing date, the N-470 merely hasevidentiary requirements that must be established in order for approval if it is filed before theopportunity is lost.
Review of an N-470 Dismissed by AAO---Five Years Late 2010Unlike an I-130 or I-140, both of which are petitions for classification that establish a prioritydate based on the filing date, eligibility at time of filing is not paramount to most applicationsunder the INA, especially Title III benefits but not exclusively so.As a further example of this concept examine work authorization (I-765 for an EAD).An asylum applicant can file an I-765 for an EAD after reaching 150 days “on the clock” but bystatute may not be granted an EAD until 180 days has expired “on the clock”. By regulation,Legacy INS made a favorable exercise of discretion to specifically inform affected individualsthat they could file at 150 days so as to speed up the issuance of the EAD as soon as workauthorization became statutorily available. INS was estimating a processing time of 30 days.The flip side of that discretion is the recipient of withholding of removal (WOR). Depending onthe individual circumstances, the alien granted WOR could be kept detained for a long period oftime or even virtually indefinitely, interrupted only by periodic trips to Immigration Court for abond hearing or re-determination. Most WOR recipients however do get released and areallowed to obtain work authorization. The I-765 is filed in category (a)(10). There is NO FEE forthe EAD but it is issued only one year at a time. Why is this? It is so DHS can keep tabs on theWOR recipient so, if and when, an opportunity to remove the alien should arise, ICE knowswhere to find the person to be removed. This is a favorable exercise of discretion with an ulteriormotive and in keeping with law enforcement priorities.The laws are written the way they are written for a variety of reasons. There is no “one size fitsall” in the INA across all sectors or for all petitioners, beneficiaries, sponsors, and applicants.The concepts of prima facie evidence vs. full eligibility, or eligibility at time of filing vs.eligibility at time of adjudication are just some of the more obvious examples of the dichotomiesstrewn throughout the realm of immigration law. Compare inadmissible to deportable.The N-470 is a benefit application to preserve eligibility merely to file a future application (anN-400) at which time the burden of proof shall be on the applicant to establish full eligibility forthat future benefit. In that future naturalization application, the applicant shall have to prove “tothe satisfaction of [USCIS] that his absence from the United States for such period has beenfor such purpose.” See INA § 316(b)(2) This is a “back-end burden of proof”, ex post facto!8 CFR § 316.5(d) Application for benefits with respect to absences; appeal —(1) Preservation of residenceunder section 316(b) of the Act. (i) An application for the residence benefits under section 316(b)of the Act to cover an absence from the United States for a continuous period of one year ormore shall be submitted to the Service on Form N–470 with the required fee, in accordance withthe forms instructions. The application may be filed either before or after the applicantsemployment commences, but must be filed before the applicant has been absent from theUnited States for a continuous period of one year. .....
Review of an N-470 Dismissed by AAO---Five Years Late 2010INA § 316 (b)******from the 2nd paragraph*****Absence from the United States for a continuous period of one year or more during theperiod for which continuous residence is required for admission to citizenship (whetherpreceding or subsequent to the filing of the application for naturalization) shall break thecontinuity of such residence except that in the case of a person who has been physically presentand residing in the United States after being lawfully admitted for permanent residence for anuninterrupted period of at least one year and who thereafter, is employed by or under contractwith the Government of the United States or an American institution of research recognized assuch by the Attorney General, or is employed by an American firm or corporation engaged inwhole or in part in the development of foreign trade and commerce of the United States, or asubsidiary thereof more than 50 per centum of whose stock is owned by an American firm orcorporation, or is employed by a public international organization of which the United States is amember by treaty or statute and by which the alien was not employed until after being lawfullyadmitted for permanent residence, no period of absence from the United States shall breakthe continuity of residence if-(1) prior to the beginning of such period of employment (whether such period begins beforeor after his departure from the United States), but prior to the expiration of one year ofcontinuous absence from the United States, the person has established to the satisfaction ofthe Attorney General that his absence from the United States for such period is to be on behalf ofsuch Government, or for the purpose of carrying on scientific research on behalf of suchinstitution, or to be engaged in the development of such foreign trade and commerce or whoseresidence abroad is necessary to the protection of the property rights in such countries ofsuch firm or corporation, or to be employed by a public international organization of which theUnited States is a member by treaty or statute and by which the alien was not employed untilafter being lawfully admitted for permanent residence; and(2) such person proves to the satisfaction of the Attorney General that his absence from theUnited States for such period has been for such purpose.The spouse and dependent unmarried sons and daughters who are members of the household of aperson who qualifies for the benefits of this subsection shall also be entitled to such benefitsduring the period for which they were residing abroad as dependent members of the household ofthe person.(c) The granting of the benefits of subsection (b) of this section shall not relieve theapplicant from the requirement of physical presence within the United States for the periodspecified in subsection (a) of this section, except in the case of those persons who are employedby, or under contract with, the Government of the United States. In the case of a personemployed by or under contract with Central Intelligence Agency, the requirement in subsection(b) of an uninterrupted period of at least one year of physical presence in the United States maybe complied with by such person at any time prior to filing an application for naturalization............
Review of an N-470 Dismissed by AAO---Five Years Late 2010Ambiguity in the Form InstructionsThe regulations state that the application may be filed “either before or after the applicantsemployment commences, but must be filed before the applicant has been absent from theUnited States for a continuous period of one year.” That same regulation invokes the forminstructions also. The form instructions are given the force of regulation in that they have beenincorporated by reference. See also 8 CFR § 103.2(a)(1). The form instructions are convoluted,ambiguous and ultra vires. Therefore, the statute trumps the form instructions in the samemanner that it could a convoluted, ambiguous and ultra vires regulation. The form instructionsare not clear on exactly when it must be filed. The following is an excerpt from the forminstructions informing the applicant about “when to file”. When Should I Use Form N-470? ***** Permanent residents who remain outside the United States for more than 1 uninterrupted year will disrupt their naturalization residence requirement, unless they are the beneficiaries of an approved Form N-470. You should use Form N-470 if you are a lawful permanent resident (permanent resident) who will be absent1 from the United States for more than one year due to qualifying employment and you want to preserve your residence for naturalization purposes. Please note that in most cases2 you must have been physically present and residing in the United States for an uninterrupted period, without any absences whatsoever, for at least 1 year after your admission as a lawful permanent resident before you can file Form N- 470. Permanent residents who remain outside the United States for more than 1 uninterrupted year will disrupt their naturalization residence requirement, unless they are the beneficiaries of an approved Form N-470. In addition, you must submit the Form N-470 to USCIS before you have been absent from the United States for a continuous period of 1 year. However, if your absence from the United States is, was or will be solely as a clergyman or clergywoman, missionary, brother, nun or sister of a religious denomination or interdenominational mission organization having a bona fide organization within the United States, you may file this application before or after an absence of 1 year or more.1 “...will be absent...” Apply now to cover a future absence!2 The form instructions state “in most cases” but does not clarify which cases it does apply to. Onthe contrary, the form instructions are loaded with a plethora of “exceptions” to that requirement.
Review of an N-470 Dismissed by AAO---Five Years Late 2010 For additional information regarding qualifying employment and eligibility, see Step 1 of these instructions. .....”In further consulting Step 1, this applicant found item #3. “3. For the purpose of engaging in the development of foreign trade and commerce of the United States on behalf of an American firm or corporation or a subsidiary thereof - Check Box C if you are employed by a qualifying firm or corporation.”Which led her to: “C. For the purpose of engaging in the development of foreign trade and commerce of the United States on behalf of an American firm or corporation or a subsidiary thereof.”The statute states that “prior to the beginning of such period of employment (whether suchperiod begins before or after his departure from the United States), but prior to the expirationof one year of continuous absence from the United States, the person has established to thesatisfaction of the Attorney General that his absence from the United States for such period is tobe on behalf of” the qualifying employer as stated and necessary requirements needed topreserve the residency.The statute creates a “window of opportunity” that will slam shut upon one solid year afterdeparting from the U.S. to commence employment abroad on behalf of the U.S. employer. Theregulation provides that an “application may be filed either before or after the applicantsemployment commences, but must be filed before the applicant has been absent from theUnited States for a continuous period of one year” and reiterates the ambiguous deadline. Isubmit that the form instructions which are at the bottom of the legal hierarchy, below theregulation which is itself below the statute is ambiguous, at best and ultra vires, at worst.In either case they are trumped and invalid. In this case, the form instructions may have been thesource of more confusion on the part of the applicant. If she had consulted the regulations forclarification, she would have been convinced that she could file when she did in order tohave her approval notice in hand before departing on her foreign work assignment. Thiswas a bad initial decision that was improperly reviewed in Newark and erroneously (andsloppily) handled on appeal by the AAO.