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What to Do When Your Naturalization Application is Denied

What to Do When Your Naturalization Application is Denied

Having your citizenship application denied can be scary. The N-400, Application for Naturalization is a complicated form, though, so denials aren’t as uncommon as one might hope. In fact, about 10% of all N-400 applications are denied. However, hope is not lost! You have a few options: First, you can appeal the denial of your naturalization by using Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings. Second, you can file a new naturalization application as an alternative. Third, you can file a Motion to Reopen. Finally, you can file a Motion to Reconsider.

By appealing, you get a second shot at getting citizenship, and can avoid the possibility of getting a Notice to Appear in immigration court for potential removal proceedings[1].

What Is the Appeal Process Like?

First, you or your lawyer must file the Form N-366 appeal within 30 days from the time you received the denial of your naturalization application (or 33 days if USCIS mailed the notice). If an attorney or other representative files for you, he or she must also submit a G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, otherwise, the appeal is considered improper and will be denied outright. Along with the N-336 appeal form, you will need to send the filing fee of $700 (as of 03/21/2020).

Once everything is filed appropriately, you will have your hearing scheduled within 180 days from the date you filed your appeal.

During the appeal hearing, you can bring forward any new evidence that could convince the judge to overturn the denial. This can include any briefs, written statements, or additional evidence depending on what the reason for denial was. The immigration officer who will hear the appeal has a lot of discretion in how to re-determine your application and the new evidence, so it is important to develop a good argument for your naturalization.

When Would It Make More Sense to Re-File for Naturalization Instead of Appealing?

One example when it makes sense to re-file instead of appeal is if the denial was due to lack of good moral character because of an arrest for a minor crime that (as of the time of the appeal) happened more than five years ago. For instance, if at the time of initial application, the crime had been committed within five years, but now the five years have elapsed, this might make sense to just re-file. The good moral character test looks at the last five years, so waiting during that time period can make a difference in your case. Alternatively, you can see if you are eligible for post-conviction relief that can help you meet the moral character requirement, and then reapply.

Another example is if the denial was due to not meeting the physical presence or continuous residence requirements. Those requirements ask that you be within the United States for at least thirty months of the last five years from the point at which you applied. Part of this is that you must have been residing in the U.S. for at least five years at the time you applied. If you got your green card through marriage, those numbers are a little different; you must have been in the U.S. for eighteen months out of the last three years, with at least 3 years of residence in the U.S. prior to applying. In this case, if waiting and re-applying would allow you to meet this requirement, re-filing might make sense.

When Would It Make Sense to File a Motion to Reopen

A Motion to Reopen should be filed if you are beyond the deadline to appeal your case and if there is new evidence that you did not have available to you during the initial application. The immigration officer will then consider if the new evidence warrants reversal of the denial.

When Would It Make Sense to File a Motion to Reconsider

A Motion to Reconsider should be filed if you are beyond the deadline to appeal your case and you believe that the immigration officer incorrectly applied the law when they issued your denial of naturalization.

If your naturalization application was denied and you want to discuss your options, you can schedule an initial consultation with us today, don't hesitate to contact us at (949) 478-4963.

 

[1] You are not likely to get a Notice to Appear unless the immigration officer finds that you should have never been granted a Green Card or if you committed a deportable act. Otherwise, you will most likely simply keep your Green Card.

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