This article will discuss what happens when your N-400, Application for Naturalization is denied. We will cover the following topics:
- Filing an appeal when denied naturalization
- Re-filing for naturalization versus filing an appeal
- Filing a legal motion when denied naturalization
- Submitting to the Federal District Court
- Reasons why an application for naturalization is denied
- Will my green card be canceled if USCIS denies my citizenship application?
USCIS denies approximately ten percent of naturalization applications each year. However, many of those denials are due to paperwork errors or a lack of information requested in the application. Understanding when and how to respond to the naturalization denial can make your case for citizenship. There are a few options available to those denied naturalization; such as filing an appeal, filing a new naturalization application, or filing a legal motion,
Filing an Appeal When Denied Naturalization
The denied party must file Form N-366, Request for a Hearing on a Decision, within thirty days of receiving the naturalization denial. If the denied person is using an attorney or another representative, they must also submit Form G-28, Notice of Entry of Appearance As Attorney or Accredited Representative. Without Form G-28, the appeal is ineligible, and the immigration officer will deny it outright. The cost of filing the N-336 appeal form is $700 and should be included in the packet when you file.
Immigration court will schedule the appeal hearing within 180 days from the date the appeal is filed. The appeal hearing gives the applicant and their attorney a chance to include any new information and evidence that supports their petition for naturalization and refutes or corrects the reason for denial. At that point, the decision to reverse the denial and award citizenship or uphold the denial falls on the immigration officer's shoulders reviewing the appeal.
Re-Filing for Naturalization Versus Filing an Appeal
Re-filing is a better option for most applicants when the denial is due to a lack of good moral character, or the applicant failed to meet the physical presence or residence requirements.
If the applicant's denial due to an arrest for a minor crime, it's most likely because they committed the crime within five years of the application date. If the applicant can wait until the five-year mark has passed, they should be able to re-file and receive citizenship, barring any other reasons for the denial. If waiting is not an option, the applicant should inquire into post-conviction relief eligibility to meet the moral character requirement.
Many applicants are denied because their travel history triggers a red flag indicating that they do not meet the physical presence or continuous residence guidelines. Generally, an applicant must have resided within the United States for the last five years and been physically present for at least 30 months. If an applicant received their green card through marriage, they must have been physically present for at least 18 months and been a residence of the U.S. for three years. An applicant can wait until they meet the residency and physical presence requirements and then re-file. If you're not sure if re-filing is the right move, speak with an immigration attorney.
Filing a Legal Motion When Denied Naturalization
Two legal motions may prove useful for applicants that have been denied citizenship. Filing a Motion to Reopen is appropriate if the applicant is beyond the deadline to appeal and new evidence has come to light that was not available previously. The immigration officer will review the latest information and decide if the denial should be upheld or revoked.
Filing a Motion to Reconsider might be a good option ff the applicant is beyond the deadline for filing an appeal and believes the immigration officer made a mistake in their interpretation of the law as it pertains to the original naturalization application.
Submitting to the Federal District Court
In some cases, if an applicant is denied a second time after filing for administrative review, they can submit the application to the Federal District Court. Applying to the Federal District Court will get a new immigration officer assigned to the application. The officer will complete a "de novo" review, including any new findings, and decide if the application should be denied or accepted. To request a Federal District Court review, the applicant must submit their application within 120 days of the appeal denial. The review hearing takes place within 180 days of the petition. Submitting to the Federal District Court is a standard option for those who fail their English and Civics test, as it allows them to retake portions of the test in the interim.
Reasons Why an Applicant For Naturalization Is Denied
There are many reasons why an applicant may be denied citizenship; the most common include:
- Fraud and lying to USCIS;
- Failing to meet the continuous residence and physical presence requirements;
- Having a criminal history;
- Failing the English or Civics tests; and
- Failing to meet the financial obligations associated with your application.
The last item, failing financial obligations, includes failing to pay taxes and the willful failure to support dependents.
Will My Green Card Be Cancelled if USCIS Denies My Citizenship Application?
Being denied citizenship does not mean an applicant will lose their green card and be at risk of deportation. However, if when reviewing the application for naturalization, the immigration officer finds evidence of fraud, learns that the applicant didn't qualify for a green card in the first place, purposefully or inadvertently abandoned U.S. residency, or committed a crime, the applicant is at risk of denial and deportation. Bottom line, before you apply for citizenship, make sure you understand what is at stake.
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