Citizenship denial - ineligibility due to absence from US
By: Debbie McGoldrick | Published Tuesday, November 1, 2011, 7:09 PM | Updated Tuesday, November 1, 2011, 7:09 PM
“I applied for U.S. citizenship and was interviewed in the spring of 2010. My case was put on hold by the examiner at that time because he did not believe that I had been a full-time resident of the U.S. I had traveled back and forth to Ireland frequently during the preceding five years due to an illness in the family, but was never out of the country for more than a year. I had pay stubs and back tax returns to prove my case.
“I recently received a notice from U.S. Citizenship and Immigration Services saying that I am ineligible for naturalization because of a nine-month absence from the U.S. that stretched from the November 2008 into August 2009. This is bad enough – I wasn’t gone for a year – but I also just received the notice even though it was dated early in July. The note said I had 30 days to file for a hearing or else the case would be closed, but those 30 days are long gone and I feel cheated because I wasn’t informed in a timely manner.
“What can I do? I want to fight this. It’s not fair that I didn’t receive the mail in time. And I was never out of the country for more than a year.”
You say the letter of denial of your case was dated in the beginning of July, but you only got notice now. Unfortunately, that’s not going to matter much to the USCIS, which makes a point of stressing that customers provide reliable mailing addresses where they can receive correspondence in a timely manner. If this doesn’t happen, USCIS won’t have much sympathy so there’s no point in fighting on, as you’d like.
And from a financial/logistical viewpoint, it might not have been worth it in the first place. The first step in appealing a naturalization denial comes through filing paperwork, the N-336 form, that costs $650 to submit.
Obviously that’s quite a bit of money to spend on an appeal that may or may not be granted. In order to ensure the success of an appeal it’s always best to consult with an immigration practitioner, and a fee would also likely be involved.
If the applicant does not have additional documentation to bolster the case, then the appeal will be denied. Therefore, it’s best to put plenty of thought into a decision to go forward.
Of course, there are cases where appeals are granted, but it can take several months for a decision to be made.
You say that you were denied because the USCIS examiner noted a nine-month absence and obviously concluded that the U.S. was not your primary residence during that time. The examiner was well within his right to do this, even though you were out of the country for less than a year. (It’s a continuing myth that many permanent residents think their legal status can be secured by making once a year appearances in the U.S.)
As immigration law notes, absences of greater than six months but less than 12 months are permissible, provided the permanent resident can show that the U.S. was still the primary place of residence during this time. If the naturalization applicant cannot prove this was the case, then the five-year continuity residence requirement for naturalization is considered to be broken.
(Naturalization applicants must, during the five-year period preceding the application, have maintained a permanent U.S. residence, and at least two and a half of these years must have been spent physically present in the country. The five years changes to three for those applying based on marriage to a U.S. citizen, with 18 months of physical presence required.)
Your best bet would be to re-apply for naturalization once you have accumulated the required five years continuous residence/physical presence requirements. According to immigration law, you will be eligible to re-apply four years and a day after you re-entered in August of 2009, which would make your new date August of 2013.