CASE: N-400 (Citizenship / Naturalization)
APPLICANT: Filipino
LOCATION: Chicago, IL
Our client contacted us in January 2015 to seek legal representation for his naturalization and citizenship N-400 application. He came to the United States from the Philippines and obtained his green card in June 2005 through his family’s petition. Our client would have filed his naturalization application before; however, he was hesitant to file it because of his criminal conviction and the related misrepresentation (not putting his DUI conviction on his immigrant visa application).
Before he became the green card holder, he came to the United States as a tourist and committed a DUI offense. He was convicted and he properly paid his fine. Thereafter, he went back to the Philippines before his authorized stay expired. However, when he applied for his immigrant visa, he did not disclose this DUI record. Nevertheless, his immigrant visa was issued and he became a green card holder in the U.S.
On his most recent trip abroad, at the point of entry, the CBP officer stopped him, and asked him about his DUI record. He disclosed it and eventually was let in. At that point he worried about any potential naturalization application because this DUI was not disclosed on his immigrant visa application prior to him gaining permanent residency.
Although he was admitted into the U.S., he started to worry about his permanent residency and eligibility to file his naturalization application. When he contacted our office, we thoroughly explained him that there an argument that could be made regarding his N-400 eligibility despite the aforementioned issue. He retained our office on January 7, 2015.
The N-400 application was filed on January 27, 2015. The application actually include a “yes” regarding previous misrepresentation but included a detailed explanation of it.
According to 9 FAM 40.63 N2, in order to find an alien inadmissible under INA 212(a)(6)(C)(i), it must be determined that:
(1) There has been a misrepresentation made by the applicant
(2) The misrepresentation was willfully made; and
(3) The fact misrepresented is material; and
(4) The alien by using fraud or misrepresentation seeks to procure, has sought to procure, or has procured a visa, other documentation, admission into the United States, or other benefit provided under the INA.
According to 9 FAM 40.63 N6.1 “Materiality” Defined:
“Materiality does not rest on the simple moral premise that an alien has lied, but must be measured pragmatically in the context of the individual case as to whether the misrepresentation was of direct and objective significance to the proper resolution of the alien’s application for a visa. The Attorney General has declared the definition of “materiality” with respect to INA 212(a)(6)(C)(i) to be as follows: “A misrepresentation made in connection with an application for a visa or other documents, or with entry into the United States, is material if either:
(1) The alien is inadmissible on the true facts; or
(2) The misrepresentation tends to shut off a line of inquiry which is relevant to the alien’s eligibility and which might well have resulted in a proper determination that he or she be inadmissible
Section 212(a) delineates several crimes and convictions that render a person inadmissible, such as crimes of moral turpitude, controlled substance violations, and aggravated felonies among others. Misdemeanor DUIs are not included.
Finally, the William Yates Interoffice Memorandum by the USCIS issued on September 19, 2005 is the seminal memorandum regarding good moral character determinations in naturalization applications. Based on the memorandum:
“One of the basic eligibility requirements for naturalization is that of establishing good moral character. An applicant for naturalization must show that, during the statutorily prescribed period, he or she has been and continuous to be a person of good moral character…
Proper application of 8 C.F.R. § 316.10(b)(3)(iii) requires that naturalization adjudicators not seize upon minor unlawful acts committed by an applicant without engaging in an individualized analysis of whether the commission of those acts does in fat reflect adversely upon the applicant’s moral character.”
Our argument lied on the premise that the underlying facts would not have rendered him inadmissible, the misrepresentation was not material, and finally, that is beyond the 5-year statutory period for “good moral character”.
Prior to his citizenship interview, our office thoroughly prepared him via conference calls. On May 12, 2015, our client appeared at the Chicago, IL USCIS office for his naturalization interview. Attorney Sung Hee (Glen) Yu from our office accompanied our client. Our client answered all questions correctly and passed his naturalization and citizenship interview. Eventually, his application was approved only 2 days later on May 14, 2015. His oath taking is scheduled in which he will become a naturalized U.S. Citizen.