Denied Citizenship, Lawyers won't appeal

[Boiler 45,486]

2 minutes ago, Crazy Cat said:

That is what sticks in my mind.....How can this not be misrepresentation when he entered the US?  

I 601 may well be required but that is a looooong way down the road.

[Mike E 11,739]

7 minutes ago, Family said:

OP is F-2A …2021 filed

. The F-3 is not relevant to any scenario 

There are three actors here:

 

OP: a RoW non citizen not in the USA.  
 

OP’s spouse: a green card holder in the USA.  This green card was issued erroneously, because OP’s spouse got the green card as an unmarried child of a USA citizen or USA gc holder, yet was married at the time OP became an LPR 

 

OP’s spouse’s father.  Presumably a USA citizen now. If not the then this is all moot.  
 

If you believe my legal theory that the embassy is not going to issue an F2A visa to OP, then the only path is for OP’s spouse to get new green card, this time an F3 green card through OP’s father.  Then file a new I-130 for OP.  That is a process now measured in decades.  
 

That’s my opinion.  
 

And based on that opinion, OP and OP’s spouse need a skilled immigration attorney as this is not a DIY case and to be brutally honest OP’s spouse’s case should not have been DIY for reasons I’ve already made plain. If there is any chance decades can be turned into years or months and keep OP’s husband from being deported, then a skilled attorney is needed.  

[Boiler 45,486]

F3 includes spouse as a derivative.

 

I do not know what USCIS will do, would not totally surprise me if they let it ride, obviously that does not help the OP. Any court cases are likely to take years.

[SalishSea 17,827]

3 hours ago, June k said:

okay,so what options do we have now?should the dad petition for him again?(he has cancer and my husband was his bone marrow donor 😭😭😭)should we wait to be referred to an immigration court?anyone with an idea?

He entered using a visa he was not eligible for.  This is a big deal. If no lawyer will take on his misrepresentation case, he should probably go back home, if you want to be together.   He will not be able to petition you anytime soon.

[SalishSea 17,827]

3 hours ago, June k said:

Amen.They are bound to do another one since the cancer recurred if that is the right word and this time worse than the first time,then this immigration issue comes up,what an unfortunate turn of events😭

Sorry to hear.

 

Just so you know though, if the bone marrow transplant failed, he will not get another one.

[African Zealot 1,455]

I have actually followed two such cases through the court process and so I believe I have an informed opinion based on precedent.

 

In one such similar case [Kamal Turfah vs USCIS] which was supposed to be under the status of an unmarried child under the age of 21 who was “accompanying or following to join” his father, the principal visa holder. Unfortunately Turfah came to the USA first instead of with the primary ( his father). Upon applying for citizenship it was denied for obvious reasons.
 

He appealed all the way from district to appellate court and it was upheld that he couldn’t naturalize because his permanent residency should not have  be issued, he was not lawfully admitted. The court concluded the court cannot award Turfah naturalization based on estoppel or other equitable relief.The appellate judge asked USCIS to consider doing a nunc pro tunc to essentially backdate his permanent residency to his fathers entry date, essentially curing the error. I believe USCIS indicated they would not go after his permanent residency however he would never become a citizen.

 

I believe it will be the same in your husbands case. Coming to whether he can petition you, it’s unlikely. USCIS/Department of State have discretion to overlook his ineligibility since it was not based on fraud however it’s unlikely. 
 

This would be a situation where it would have been better for you to be in the USA with him doing an adjustment of status instead of consular processing. Adjustments grant petitioners and beneficiaries many legal avenues of appeal that you don’t get with consular processing.

[JeanneAdil 6,498]

several say get a lawyer but the title  indicates the LPR had a lawyer and he refuses to appeal so OP understand lawyer looks at this as useless (perhaps because case can not be won and/or LPR can not afford huge attorney fees plus it would tie lawyer down to years of work)

[Crazy Cat 41,845]

5 hours ago, African Zealot said:

I have actually followed two such cases through the court process and so I believe I have an informed opinion based on precedent.

 

In one such similar case [Kamal Turfah vs USCIS] which was supposed to be under the status of an unmarried child under the age of 21 who was “accompanying or following to join” his father, the principal visa holder. Unfortunately Turfah came to the USA first instead of with the primary ( his father). Upon applying for citizenship it was denied for obvious reasons.
 

He appealed all the way from district to appellate court and it was upheld that he couldn’t naturalize because his permanent residency should not have  be issued, he was not lawfully admitted. The court concluded the court cannot award Turfah naturalization based on estoppel or other equitable relief.The appellate judge asked USCIS to consider doing a nunc pro tunc to essentially backdate his permanent residency to his fathers entry date, essentially curing the error. I believe USCIS indicated they would not go after his permanent residency however he would never become a citizen.

 

I believe it will be the same in your husbands case. Coming to whether he can petition you, it’s unlikely. USCIS/Department of State have discretion to overlook his ineligibility since it was not based on fraud however it’s unlikely. 
 

This would be a situation where it would have been better for you to be in the USA with him doing an adjustment of status instead of consular processing. Adjustments grant petitioners and beneficiaries many legal avenues of appeal that you don’t get with consular processing.

This is really good information.  I, personally see the OP's husband's case as a more serious matter since I believe he entered the US long before his visa number would have been available under the correct category (if I understand the visa categories correctly).  Visa numbers for F3 applicants from 2008 are just now available.

Thanks for posting this real-world example. 

Edited April 5, 2022 by Crazy Cat

[Mike E 11,739]

1 hour ago, JeanneAdil said:

several say get a lawyer but the title  indicates the LPR had a lawyer and he refuses to appeal

None of us are suggesting he appeal.  We all (or at least I) agree there is no appeal.  

 

But now that I think of it, if OP and husband were not legally married before he came to the USA, then that would be an avenue appeal.  
 

1 hour ago, JeanneAdil said:

 

so OP understand lawyer looks at this as useless (perhaps because case can not be won and/or LPR can not afford huge attorney fees plus it would tie lawyer down to years of work)

Well I’m not going to suggest to OP that she tell her husband to pack up and leave the USA without talking to a lawyer.  
 

 

 

[JeanneAdil 6,498]

10 minutes ago, Mike E said:

None of us are suggesting he appeal.  We all (or at least I) agree there is no appeal.  

 

But now that I think of it, if OP and husband were not legally married before he came to the USA, then that would be an avenue appeal.  
 

Well I’m not going to suggest to OP that she tell her husband to pack up and leave the USA without talking to a lawyer.  
 

 

 

what i saw was he had a lawyer so he talked to one and she says they were married -i know iffy in some countries by their own rules

[Boiler 45,486]

The only route I see for Family Reunification involves him moving.

 

I would imagine his Lawyer has told him the same.

 

If he is looking to stay I would be surprised if his Lawyer suggested it would be OK to travel.

[milimelo 4,477]

Well the OP can play DV lottery. 

[Boiler 45,486]

4 minutes ago, milimelo said:

Well the OP can play DV lottery. 

Misrepresentation could be an issue.

[Crazy Cat 41,845]

8 minutes ago, Boiler said:

Misrepresentation could be an issue.

For the OP's husband.......correct?

Edited April 5, 2022 by Crazy Cat

[Mike E 11,739]

15 minutes ago, JeanneAdil said:

what i saw was he had a lawyer

he had a lawyer after he was denied.  
 

he didn’t have a lawyer before he filed N-400.  A competent lawyer would have not filed N-400 after verifying the marriage was legit. 
 

15 minutes ago, JeanneAdil said:

so he talked to one and she says they were married -i know iffy in some countries by their own rules

Some lawyers say a Kezia Aoko of Kenya (where OP is from) was still married to her husband when he moved to Hawaii and married a Stanley Ann Dunham. And some lawyers say there was no marriage with Ms Aoko.  I won’t digress as to why this argument is important to some.  
 

My own I-485 interview took place less 2 weeks after I was married, and I am certain we didn’t have a county marriage certificate in hand.   INS accepted a church  wedding certificate as evidence of marriage.    And for all USCIS knows, I’ve been illegally naturalized as a result and my second wife illegally obtained her K-1 and green card.  
 

(In fact the first time I saw a county marriage certificate from my first marriage was after I ordered one after filing I-129F. Because you never know for sure until you know for sure)

 

The N-400 is denied because OP’s husband testified to being married before using his immigration visa.  I doubt USCIS did due diligence to verify that he was married.  It would have done due diligence on OP’s I-130, and the embassy would have done even more as it has more specific experience and expertise. 
 

So this is why you hire competent representation and counsel.  Best time would have been before OP and her husband married.  Second best time would have been after the husband entered the USA.  Third best would  have been before he turned age 21. Fourth best would have been before he filed I-130.  Fifth best would have been before he filed N-400.  
 

It’s never too late to have competent legal advice.  
 

I see no harm to doing so now.