N-400 denied

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37 minutes ago, lesly87 said:

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. 

If she were convicted of something serious, then yes she would wait 5 years to "cleanse" her record and establish a period of good moral character.  In this case, it was a misdemeanor and she was denied (correctly) because an application can't be approved during a probationary period.  With that now satisfied, the IO will assess her moral character again and given it was only misdemeanor plus the fact that she has the prosecutor and police chief as character witnesses should make it a pretty easy decision for the IO.

[N-o-l-a 7,167]

1 hour ago, Yan_Inna said:

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.

 

You are not automatically given the harshest sentence for pleading guilty to any crime in Minnesota.  In general, our sentencing can be a little too light at times.

 

 

[mcdull 474]

just a thought, 

 

could you have just committed obstruction of justice?

[Alabamak1 688]

7 hours ago, lesly87 said:

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. 

I agree with this also...wouldn't or shouldn't it be better in this case to wait the 5 years before refilling for naturalization and then the charges would be of a lesser weight on the application since the time has passed?

[Going through 5,668]

1 hour ago, Alabamak1 said:

I agree with this also...wouldn't or shouldn't it be better in this case to wait the 5 years before refilling for naturalization and then the charges would be of a lesser weight on the application since the time has passed?

For anything other than a minor traffic violation (minor as in it didn't involve bodily harm to another or DUI), I would suggest waiting at least a couple of years after the probation is over...for the OP's case, I think it will largely come down to the discretion of the IO given the affidavits from both the former prosecutor and the chief of police regarding her charge/outcome.  And the fact that the prior denial as written was not due to the charge itself---but rather only due to the applicant on open probation at the time of the interview.

 

But, yeah, if it weren't just a simple traffic violation, I would definitely suggest waiting longer before refiling.

Edited August 2, 2018 by Going through
clarification of one sentence.

[BH_2018 2]

Thanks for your responses, This has me rethinking the path forward. What is the statutory period for good moral character? I see that on the N-400 form page 14 section 23-29 asking about criminal record. There is no time frame as to when the crime occurred. I am confused about the waiting 5 year period. I will be calling USCIS to inquire about this.

4 hours ago, mcdull said:

just a thought, 

 

could you have just committed obstruction of justice?

Do tell, not sure I understand.

[bsp 32]

9 minutes ago, BH_2018 said:

Thanks for your responses, This has me rethinking the path forward. What is the statutory period for good moral character? I see that on the N-400 form page 14 section 23-29 asking about criminal record. There is no time frame as to when the crime occurred. I am confused about the waiting 5 year period. I will be calling USCIS to inquire about this.

Do tell, not sure I understand.

Don't worry about it, I don't think the poster understands what obstruction of justice is (neither you nor your wife committed it).

 

The 5 year rule is a look-back period in which you must demonstrate good moral character (https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartD-Chapter9.html).  For more serious offenses it is often a good idea to wait 5 years and then reapply.  The IO will still dig deep, particularly if it was a crime of moral turpitude, but the chances of success improve if you can demonstrate a sustained period of good behavior.  In your wife's case, the offense was classified a misdemeanor (albeit at the more serious end) and it sounds as though had it not been for the probationary period the IO would have approved the petition.  That, together with the strong character references from the prosecutor and police chief, suggests that she has a good chance of satisfying a new IO of her good character eliminating the need to wait 5 years.  Of course, nothing is guaranteed with USCIS and she could always be denied, but the odds of a new application succeeding are higher than a N-335 appeal and either way you're risking ~$700. 

[BH_2018 2]

2 minutes ago, bsp said:

Don't worry about it, I don't think the poster understands what obstruction of justice is (neither you nor your wife committed it).

 

The 5 year rule is a look-back period in which you must demonstrate good moral character (https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartD-Chapter9.html).  For more serious offenses it is often a good idea to wait 5 years and then reapply.  The IO will still dig deep, particularly if it was a crime of moral turpitude, but the chances of success improve if you can demonstrate a sustained period of good behavior.  In your wife's case, the offense was classified a misdemeanor (albeit at the more serious end) and it sounds as though had it not been for the probationary period the IO would have approved the petition.  That, together with the strong character references from the prosecutor and police chief, suggests that she has a good chance of satisfying a new IO of her good character eliminating the need to wait 5 years.  Of course, nothing is guaranteed with USCIS and she could always be denied, but the odds of a new application succeeding are higher than a N-335 appeal and either way you're risking ~$700. 

Thanks so much. Do you think waiting 3 years is sufficient enough or 5 years?

[bsp 32]

It's not really a 3 year vs 5 year distinction (that's for marriage vs non-marriage) but instead you either go ahead and re-file now if you're confident that your wife can satisfy the good character requirement or otherwise just wait the 5 years.  If you re-file then worst case is they deny her and then you wait the 5 years, but this is the type of situation where it's worth paying an immigration attorney a couple of hundred to get their opinion on the best path forward.  

[BH_2018 2]

43 minutes ago, bsp said:

It's not really a 3 year vs 5 year distinction (that's for marriage vs non-marriage) but instead you either go ahead and re-file now if you're confident that your wife can satisfy the good character requirement or otherwise just wait the 5 years.  If you re-file then worst case is they deny her and then you wait the 5 years, but this is the type of situation where it's worth paying an immigration attorney a couple of hundred to get their opinion on the best path forward.  

Yes, We will wait the 5 years. The N-400 does ask if you have been law abiding for the last 5 years. So we will wait. We will put the package together now and store it so nothing gets lost during the wait. There is nothing more stressful than trying to search for paperwork that has been sitting around for 5 years. As for the affidavit from the prosecutor and police chief, I wonder if they will still carry the same weight 5 years from now? I believe we should put them to use at that time even though they may be not in those job positions or moved on.

[WandY 430]

On 8/2/2018 at 9:34 AM, Yan_Inna said:

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.

Yes, always get a lawyer for anything above an infraction (illegal parking, etc.). Let your lawyer decide the plea. Almost everything is reduced or dismissed through negotiation. If I get a speeding ticket, I don't want the points against my license. So my lawyer will have me plead guilty to a non-point infraction, such as defective exhaust. Of course, there is nothing wrong with my muffler, but that's the way it works. Get a lawyer. On another note, fill out a new application. That seems the best route.

[Kiolas 102]

You should definitely appeal. You have a very strong case.

 

Keep in mind a few things:

1) Make sure you appeal within 30 days of the decision (or 33 days if you receive the letter via mail).

2) Do a legal research. Before you write anything to USCIS make sure you are familiar with the applicable law, regulations, and cases. You can get information on-line as well as in your court's library. Libraries often have access to on-line data bases. Speak to a librarian who can help you to do a legal research.

3) File FOIA request with USCIS to see your whole A-file (they may have information in the file that you were not aware about).

4) I would not suggest to hire an attorney. From my personal experience attorneys only care about their own personal interest, not yours. 

 

Remember, if you appeal, the worst thing that can happen - you lose. Not a big deal, considering, that you then have a chance to file with Federal Court (it will cost additional $500 or so).  If you do nothing - you get nothing.

 

 

Edited August 5, 2018 by Kiolas

[aditaha 4]

Sorry to hear your case.

I wish you best luck in future.

I would say go for appeal.

And your wife should have also gone for appeal for 90 days imprisonment decision by court, if that was possible.

waiting 5 years again to get clean moral character is unfair.

Appeal is the best option.

[Going through 5,668]

2 hours ago, Kiolas said:

You should definitely appeal. You have a very strong case.

Any appeal has to be based off of USCIS incorrectly denying an applicant.

The officer correctly denied the applicant as they had no choice but to deny them based on the probation period still being open (this is clear in USCIS's own policy manual for adjudication of the N400, which is made available to the public).

 

That's why it's better to file a new application, instead of appealing.  Once a new IO sees that the OP was on probation at the time the interview took place, the appeal would be correctly denied, too.

[aditaha 4]

3 minutes ago, Going through said:

Any appeal has to be based off of USCIS incorrectly denying an applicant.

The officer correctly denied the applicant as they had no choice but to deny them based on the probation period still being open (this is clear in USCIS's own policy manual for adjudication of the N400, which is made available to the public).

 

That's why it's better to file a new application, instead of appealing.  Once a new IO sees that the OP was on probation at the time the interview took place, the appeal would be correctly denied, too.

If he doesn’t have to wait for 5 years again to get clean moral character, then filing new application is fine.