Earlier this month, we celebrated a most unusual naturalization victory.
Our client was initially one of the "lucky" ones - he won the Diversity Visa lottery. The DV lottery is essentially just that: dropping your name into a large hat in the hopes of being randomly selected for a green card. The regulations state that if you are selected, you must list all members of your entire family - spouse, parents, children, stepchildren. If you don't, the regulation states that the immigrant visa "shall" be denied. There are very good reasons for doing this: if a person announces in their home country that they won the DV lottery, there will be people willing to "marry" them to accompany them as spouses, or others who will give their children to the DV lottery winner.
Thus, the language of the regulation leaves virtually no room for error - if you make a mistake and forget to list someone, it doesn't matter whether you intended to mislead them or not. You lose the visa. But what do you do if you made an honest mistake? Or had a child but didn't know about it?
Our client neglected to mention a stepchild, and further had a son he did not know about.
He got his green card and filed for naturalization. By that time, he truthfully disclosed about his son and stepchild, telling USCIS he only recently became aware of his son, and that he had not listed the stepchild because his wife had no dealings with him.
USCIS found that because he did not list those two people on his DV lottery application years before, his immigrant visa should have been denied, he never should have gotten his green card, so he was not "lawfully admitted for permanent residence" and therefore could not naturalize.
We filed the case again, but with a new argument:
The Service suggests that Applicant's presence in the United States is unlawful because it would have denied him permanent residency, given his technical failure to comply with FAM 42.33, N.6.6. However, this argument cuts against the very regulations the Service is pointing to as justification for its actions. 9 FAM 42.33 N.6.6(d) states that “If post believes a case merits issuance despite apparent failure to comply with this instruction, post can submit the case for an advisory opinion (AO) to the Advisory Opinions Division (CA/VO/L/A).” The crucial takeaway from this statement is that, despite the dramatic phrasing of FAM 42.33 N.6.6(c), the post is entitled to act with discretion...
USCIS didn't buy it. The case was denied again. This time, we didn't take it lying down. We filed an N-336 petition for a rehearing.
In the rehearing, we repeated the same argument, but took pains to remind USCIS that their decision denying the N-400 was flat out wrong:
Aliens seeking citizenship must establish that they have “been lawfully admitted as a permanent resident of the United States.” Nesari v. Taylor, 806 F. Supp. 2D 848, 865 (E.D. Va. 2011). For an applicant's admission to be considered “lawful,” it must comply with the substantive legal requirements present, and not with the “mere procedural regularity” associated with the admission process. Monet v. INS, 791 F.2d 752, 753-54 (9th Cir. 1986), quoting In re Longstaff, 761 F.2d 1439, 1441 (5th Cir. 1983). Applicant had complied with all substantive requirements in connection with his admission as a permanent resident. The technical deficiencies do not automatically render the admission unlawful due to the ability of the consular post to issue the visa notwithstanding said deficiencies. Thus, Applicant did not fail to comply with any substantive requirement as a matter of law.
It is always the tough cases that we remember as lawyers. For the world that has now opened up for our long-suffering client, the continued prosperity, and the end of a long period of uncertainty, we offer our sincere congratulations. To everyone else: make sure you are accurate on all your filings with USCIS!