N-400 denied

[BH_2018 2]

Prior to my wife's citizenship interview,  she blew through a school bus stop arm. She received a citation and a court date. She went to court and plead guilty. We were thinking that she would get a fine and all would be settled and lesson learned. She has never had any tickets or arrest ever.. She is a newer driver and missed interpreted when you should stop when the arm is out. Clearly she was in the wrong and she understands that. We live in a very small town and the court house is down the street. The prosecutor( county attorney) lives on the next block from us. So, she pleads guilty and the sentence comes down as: 90 days in jail with 88 days stayed 2 days to be served in county jail and $285 fine and one year probation. the charge was classified as a misdemeanor. She went to her scheduled immigration appointment and she informed the officer what had happened and provided all the court and ticket documentation. At the end of the interview she was handed the letter that said she passed the test but no decision can be made. We received the N-400 denial letter 3 months later. Denied because she is still in probation. Her probation is from November 18 2017 through November 18 2018. The prosecutor decided to stiffen the penalty for school bus stop arm violations because it was happening more frequently in our community. My wife happened to be the first one to get this stiffer penalty. Her interview was on May 10 2018, her denial letter was sent on July 24, 2018. We decided to contact the prosecutor and explain our situation that she was denied because of the probation. He was very understanding and offered to help.  He said he can get her name back on the court docket within a week and then make a motion to end her probation and to close her file. Her probation was closed on May 16, 2018. She is no longer on probation. He then created a letter with official letter head addressed to USCIS Explaining the charges and that her probation has been suspended and file closed. The letter is signed and states that they can contact his office for any questions. We also contacted the police chief that cited my wife. He also drafted a very nice letter supporting my wife and says that she is a valuable person in our community and would make a great citizen in our community. This letter was on official letter head signed and dated. We are going to appeal the N-400 denial. we will file Form N-336 and pay the $700 fee. Sorry for the long post, I wanted to get the details in there and see what this group thinks about the odds of getting this turned around and getting the Oath letter. Your thoughts are greatly appreciated.

Edited August 2, 2018 by BH_2018

[Starkilla09 366]

Since the N -400 was denied based on that reason, you have a very good chance of your appeal being approved since it’s been mitigated. Good luck!

[geowrian 22,335]

Generally, an appeal needs to show that the original decision was incorrect. The original denial was proper since the applicant cannot be on probation when the N-400 is adjudicated or else it must be denied.

At the same time, I do see why arguing a change of facts leading to the reason for denial could be relevant.

Could go either way.

Edited August 2, 2018 by geowrian

[Boiler 43,538]

Legal advice may be relevant, I would assume the original call was correct  and with the change of situation you would need a new application.

[BH_2018 2]

The denial letter states: An applicant who has satisfactorily completed probation, parole or a suspended sentence during the statutory period is not automatically precluded from establishing good moral character. The fact that the applicant was on probation during the statutory period may affect the overall good moral character determination. However,  an officer may not approve a naturalization applicant while the applicant is on probation.  USCIS finds that you do not meet the good moral character requirement for naturalization because you are currently on probation. If you believe that you can overcome the grounds for this decision, you may submit a request for a hearing on form N-336. Without a properly filed N-336 form, this decision will become final.

[bsp 32]

Have you considered just filing a new application?  The cost is pretty much a wash and your chances of successfully appealing are 50/50 at best and probably worse given it appears as though the correct decision was made at the time - my (admittedly limited) understanding of the N-336 process is that is designed to correct errors made by USCIS.  You may want to get the opinion of an immigration attorney who likely sees this type of case regularly, but with all of the new evidence and solid character witnesses a re-filing should be a pretty clean approval.

[Hypnos 6,576]

As stated, you must show that the decision was incorrect at the time it was made. She was properly denied, since she was on probation at the time, and an N-400 cannot be approved (per the AFM) under these circumstances.

 

Now, if her probation is ended prematurely, then absolutely you could file a new application then and would most likely have no issues from that point onward, but right now the existing N-400 should be considered dead in the water. I don't see any way to reverse the denial into an approval.

[GoBig 25]

i would go with new application. the original decision from USCIS was made correctly.

[GoBig 25]

was your case processed at Minneapolis office ?

[Dashinka 23,272]

I agree with filing a new application.  In the long run, it is most likely a cheaper option.

 

Good Luck!

[BH_2018 2]

7 hours ago, GoBig said:

was your case processed at Minneapolis office ?

 

33 minutes ago, Bill & Katya said:

I agree with filing a new application.  In the long run, it is most likely a cheaper option.

 

Good Luck!

Yes, Minneapolis

[Going through 5,668]

I would suggest filing a new application instead of going through the appeal.

 

Reason being is with an appeal, you have to show that the decision to deny was incorrectly made by the IO.

 

In this case, the denial was correct given USCIS policy when adjudicating N400 applications with open probation.

[milimelo 4,220]

Agree with others - go with the new application. 

[lesly87 27]

I am admittedly least knowledgable here on this forum but are you sure she can file a new application? If the application has been denied on grounds of lack of moral character, she might have to wait five years until the statute expires. 

[Yan_Inna 32]

For the future reference, when you go to court even if it’s for a traffic violation always get a lawyer. But since you live in a small town, talk to prosecutor before you go in front of the judge, to lower your charge. And never plead guilty. When you plead guilty they automatically give you maximum sentence. Traffic violation you can always negotiate.