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ANDREW FISHKIN, ESQ. CBN 237845 LAW OFFICE OF ANDREW J. FISHKIN P.C. 235 H STREET BAKERSFIELD, CA 93304 INFO@LAWYERFISH.COM TEL: 661-379-7040 FAX: 661-322-6770

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

Gabriela Ojeda Plaintiff, Vs. United States Citizenship and Immigration Services; Department of Homeland Security; Lynn Quan Feldman, Director, Fresno Field Office, United States Citizenship and Immigration Services, in her official capacity; Monica Toro, Director, Sacramento District Office, United States Citizenship and Immigration Services in her official capacity; Lori Scialabba, Director, United States Citizenship and Immigration Services, in her official capacity; John F. Kelly, Secretary, Department of Homeland Security, in his official capacity, Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

CASE NO:

Petition for De Novo Review on Denial of Application for Naturalization and Request for a Hearing Pursuant to 8 U.S.C. §1421 (c)

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1.Plaintiff-Petitioner, Gabriela Ojeda, by and through her undersigned

attorney, files this Petition for Review pursuant to 8 U.S.C. §1421 (c), Immigration

and Naturalization Act (“INA”)§310 (c), seeking de novo review of the U.S.

Citizenship and Immigration Service’s (“USCIS”) denial of her application for

naturalization and a plenary hearing on that application.

This Court further has jurisdiction pursuant to 28 U.S.C. §2201(Declaratory

Judgment Act), 5 U.S.C. §701 (Administrative Procedure Act) and 28 U.S.C.

§1331.

2. Ms. Gabriela Ojeda is a citizen of Mexico and a lawful permanent resident

of the United States and has resided in the United States continuously for more

than 26 years. (Exhibit 1- Copy of her LPR Card) Furthermore, she meets all the

requirements for naturalization, yet nevertheless has endured a one-year battle to

naturalize as a U.S. citizen, the country of citizenship of her husband, her four

children and the county she has resided in for over 27 years practically her entire

adult life.

3. Ms. Ojeda first filed for naturalization on June 15, 2015 and passed her

citizenship and naturalization examination on September 18, 2015, however for a

month there was no USCIS action on her application. Finally, on October 24, 2015

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Ms. Ojeda’s Naturalization application was denied. (Exhibit 2-Decision Dated

October 24, 2015)

4. On November 20, 2015 Ms. Ojeda made a timely request for a hearing on

her Naturalization application under INA §336 (a), 8 U.S.C. §1447 (a), and

submitted a supplemental attachment in support, which included all reasons for her

hearing request. (Exhibit 3- N-336, Request for Hearing on a Decision in

Naturalization Proceedings NBC*1690011030)

5. A review hearing was scheduled for July 20, 2016. On February 8, 2017

the USCIS officer, defendants’ designee affirmed the denial of Ms. Ojeda’s

Naturalization application. The denial states that: (1) Ms. Ojeda entered the United

States without inspection on or about January 23, 1990; (2) Ms. Ojeda was

apprehended by Immigration and Naturalization Services, (INS) in New York on

December 13, 1993; (3) on August 24, 1994 Ms. Ojeda was ordered deported by

the Immigration Court. (See Exhibit 4- USCIS’s Decision Dated February 8, 2017)

However, INS never executed the deportation order.

6. On January 1, 2000 Ms. Ojeda married Mr. Jose Amador who received

employment-based green card as a skilled restaurant worker. Ms. Ojeda retained an

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attorney who represented her during the adjustment of status process. Ms. Ojeda

received her green card as the derivative of an employment based category E-39.

(See Exhibit 5-Copy of Mr. Ojeda’s I-485 Interview Notice)

7. To establish eligibility under INA §316 (a) and 8 U.S.C. §1427 (a) Ms.

Ojeda must show: (1) she meets the residence requirements prior to filing her

Naturalization application; (2) Ms. Ojeda was lawfully admitted; (3) she has

resided continuously within the United States from the date of application; and (4)

during the periods referred to in this subsection, she has been and still is a person

of good moral character.

8. Ms. Ojeda has demonstrated her eligibility for Naturalization.

9. Ms. Ojeda has been a lawful permanent resident for over ten years and

during that time has and continues to reside in the United States.

10. Ms. Ojeda has been and still is person of good moral character.

11. Ms. Ojeda has battled for about two years for the citizenship to which

she is legally entitled, enduring delays and an apparent discriminatory treatment

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simply because USCIS failed to properly adjudicate Ms. Ojeda’s case on May 12,

2006 when USCIS approved Ms. Ojeda’s application for adjustment of status (I-

485) and she became a lawful permanent resident of the United States (about

twelve years after Ms. Ojeda was ordered deported).

12. The USCIS had the sole legally authority to execute the August 24, 1994

removal order, however USCIS failed to do so.

13. The USCIS had the sole legal authority to rescind the grant on the

legality of Ms. Ojeda’s residence in the United States, however USCIS failed to do

so.

14. The five-year statutory window for rescinding Ms. Ojeda’s LPR status

has now passed.

15. Defendant’s unlawful conduct has deprived Ms. Ojeda of the basic

privileges of citizenship: the right to vote, to serve on a jury, to travel abroad and

return to the United States without fear of exclusion from this country, or to

receive business and educational loans and benefits received for citizens. Ms.

Ojeda now petitions this Court to conduct a de novo review of her naturalization

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application and requests a hearing pursuant to 8 U.S.C.§1421 (c), which confers on

this Court the authority to make its own findings of fact and conclusions of law

JURISDICTION AND VENUE

16. This Court has jurisdiction over the present action pursuant to 8 U.S.C.

§1421 (c), denial of naturalization application may be reviewed by the United

States District Court; 28 U.S.C. §2201, Declaratory Judgment Act; 5 U.S.C.§ 701,

Administrative Procedure Act, 28 U.S.C. §1331(federal question statute) and

§1346 (b) (Untied States as a defendant).

17. Pursuant to 8 U.S.C. §1421 (c) and 28 U.S.C. §1391 (e) venue is

properly with this Court because Plaintiff resides within the Eastern District of

California. See also 8 C.F.R. §336.9.

18. Plaintiff-Petitioner timely files this Petition for Review within 120 days

of Defendant’s February 8, 2017 final decision denying her application for

naturalization. See 8 C.F.R.§§310.5 (b), 336.9 (b).

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PARTIES

19. Plaintiff-Petitioner Gabriela Ojeda is a citizen and national of Mexico,

and a lawful permanent resident of the United States, residing within the

jurisdiction of this Court.

20. Defendant-Respondent United States Citizenship and Immigration

Service (“USCIS”), which is a division of the Department of Homeland Security

(“DHS”) is the federal agency responsible for the adjudication of Naturalization

applications. The USCIS is the successor agency to the Immigration and

Naturalization Service (“INS”) in the area of Naturalization applications. “The

petition for review shall be brought against the Immigration and Naturalization

Service.” See 8 C.F.R§336.9 (b)

21. Defendant-Respondent Department of Homeland Security (“DHS”) is

the federal parent agency of the USCIS and the responsible agency for the

administration and enforcement of the country’s immigration and naturalization

laws.

22. Defendant-Respondent Lynn Quan Feldman is the Director of the USCIS

Fresno Field Office, which is a division of the Department of Homeland Security,

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(DHS) and is the official in charge of the USCIS’s office where Petitioner’s

hearing was held pursuant to 8 C.F.R.§336.2. “The petition for review shall be

brought against the….. official in charge of the Service office where the hearing

was held pursuant to §336.2” See 8 C.F.R. 336.9 (b)

23. Defendant-Respondent Monica Toro is the Director of the Sacramento

District Office of the USCIS, which oversees the Fresno Field Office, and is

responsible for the administration and adjudication of naturalization applications.

24. Defendant-Respondent Lori Scialabba is the Director of the United

States Citizenship and Immigration Service, a division of the DHS and is

responsible for the administration and adjudication of naturalization applications.

25. Defendant- Respondent John F. Kelly is the Secretary of the Department

of Homeland Security, (DHS) and is responsible for the administration and

enforcement of the immigration and naturalization law.

NATURALIZATION AUTHORITY

26. To naturalize as a U.S. citizen an applicant must be a lawfully admitted

permanent resident alien, 8 U.S.C. §1429, who has continuously resided in the

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United States for at least five years prior to the filing of his or her naturalization

application; has been physically present for at least half of that time; and between

the filing of his application and his admission to citizenship, has resided in the

United States. 8 U.S. C. §1427 (a) (1); (2)

27. Next, an applicant must have been “a person of good moral character,

attached to the principles of the Constitution of the United States and well disposed

to the good order and happiness of the United States” for five years before the

filing of the application and up to the time of admission to citizenship. Id. §1427

(a) (3). Finally, the applicant must not fall into any of the categories described in 8

U.S.C. §1424 (a) (categories such as membership in the Communist Party or those

who advocate opposition to organized government).

FACTS

28. Plaintiff-Petitioner Gabriela Ojeda, age 44 is a citizen of Mexico who

entered the USA without inspection on or about January 23, 1990 through San

Ysidro, California.

INS officers in New York apprehended Ms. Ojeda at her work place on

December 13, 1993. Ms. Ojeda was taken to the INS office, detained for about 6

hours and was asked to sign some papers after that she was released to go home.

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(See Exhibit 6-USCIS, Record of Sworn Statement- Ms. Ojeda’s Statement Dated

September 18, 2015)

29. On January 1, 2000 Ms. Ojeda marry Mr. Jose Amador who received

employment based green card as a skilled restaurant worker. (See Exhibit 7-

Marriage Certificate) Ms. Ojeda received her green card as the derivative of an

employment based category E-39. (See Exhibits 1 and 8- I-485 Approval Notice,

WAC 05 195 50384)

30. On May 12, 2006, in other words 12 years after Petitioner was ordered

removed, Ms. Gabriela Ojeda obtained permanent resident status in immigration

classification E-39, derivative of an employment-based green card (in the present

case her husband). Ms. Ojeda has resided in the United States ever since and

currently resides in Arvin, California.

31. Since Ms. Ojeda became a LPR she has traveled on several occasions to

Mexico and every single time when she was returning to the U.S.A. she was

seeking entry into the United States.

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32. On June 15, 2015, Ms. Ojeda applied for naturalization in Fresno,

California. (See Exhibit 2) On September 18, 2015, Ms. Ojeda attended and passed

her naturalization examination but was told that a decision could not yet be made

on her naturalization application.

33. Ms. Gabriela Ojeda never received a notice scheduling an oath

ceremony.

34. On October 24, 2015 USCIS, Fresno Field Office denied her application

for naturalization on the grounds that Ms. Ojeda was “ordered deported on August

24, 1994” and she “failed” to depart from the United States. Because Ms. Ojeda

“never left the United States” she “never fulfilled the deportation.” “Therefore

USCIS did not have jurisdiction over the I-485 at the time of adjustment.” (See

Exhibit 2-USCIS’s October 24, 2015 Decision)

35. Ironically, the USCIS alleged that because the Service failed to execute

the removal order and remove Ms. Ojeda to Mexico, Plaintiff “never fulfilled the

deportation.” Further, the USCIS alleged that because the USCIS’s officers failed

to perform their duties properly, correctly, in good faith and in accordance with the

law and governing regulations Ms. Ojeda was not “lawfully admitted” under 8

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U.S.C. §§147, 1429 because USCIS had no jurisdiction over Ms. Ojeda’s case at

the time.

36. On November 20, 2015 Ms. Ojeda appealed the denial by filing a request

for a hearing (before an immigration officer) on a decision in naturalization

proceedings (N-336). (See Exhibit 3-Request for Hearing on a Decision in

Naturalization Proceedings) On July 20, 2016 Ms. Corona appeared for her

scheduled hearing on the appeal.

37. On February 8, 2017 the USCIS Fresno Office denied one more time

Ms. Ojeda’s naturalization request. The decision states that Ms. Ojeda was “not

interviewed prior to approval” of her I-485 application and that a review of Ms.

Ojeda’s “immigration records establishes” that the documents relating to Ms.

Ojeda’s “January 23, 1990 apprehension were not identified and joined” to Ms.

Ojeda’s “Form I-485 before approval of that application.” (See Exhibit 4- USCIS’s

decision dated February 8, 2017)

38. On February 8, 2017 the USCIS Fresno Office in its decision conceded

that through USCIS’s officers’ failure to correctly perform their duties that Ms.

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Corona’s lawful permanent resident status (LPR) was granted and never rescinded

and that Ms. Ojeda remains a lawful permanent resident of the United States.

39. Plaintiff Gabriela Ojeda, has exhausted all of her administrative

remedies by administratively appealing the denial in accordance with 8 U.S.C.

§1447 (a), attending the appeal hearing before an immigration officer, and

receiving a decision on the administrative appeal. Pursuant to 8 U.S.C. §1421 (c) a

person whose application for naturalization is denied, after a hearing before an

immigration officer under §336 (a), may seek review of such denial before the

United States District Court.

CAUSES OF ACTION

FIRST CLAIM FOR RELIEF

Violation of Immigration and Naturalization Act and Administrative

Procedures Act

(“Lawfully Admitted”)

40. The allegations contained in paragraphs 1 through 39 are repeated and

realleged as though fully set forth herein.

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41. Respondent violated the INA in concluding that Ms. Gabriela Ojeda was

not “lawfully admitted” as a permanent resident, considering that a lawful

admission is required for naturalization and considering that a USCIS’s officer

granted Ms. Ojeda a LPR status 11 years ago.

While Respondent argues that Ms. Ojeda was not “lawfully admitted for

permanent resident, Respondent’s argument is erroneous. According to INA §101

(a) (20), “lawfully admitted for permanent residence” is defined as “the status of

having been accorded the privilege of residing permanently in the United States as

an immigrant in accordance with the immigration laws, such status not having

changed.” Evidently, Ms. Ojeda’s Legal Permanent Resident status became a fact

because on May 12, 2006 the USCIS’s officer who had the authority and was

vested with the power to grant or deny Ms. Ojdeda’s application, in fact decided

that Ms. Ojeda is eligible to adjust status to a LPR.

Moreover, each time Ms. Ojeda was returning from Mexico she was

inspected and lawfully admitted at port of entry by the U.S. Customs and Border

Protection (CBP) Agents. In order to determine admissibility CBP officers may

“interrogate any alien or person believed to be an alien as to his right to be or to

remain in the United States.” See 8 U.S.C. §1357 (a) (1); INA §287 (a) (1). The

INA is based on the law of presumption and applicants for admission are presumed

to be immigrants until they prove that they fit into one of the nonimmigrant

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classifications. Accordingly, the U.S. CBP officers determined that Ms. Corona is

admissible and did not prevent her entry into the United States.

42. Defendants have unlawfully and erroneously interpreted the definition of

the term “lawfully admitted” in INA §101 (a) (20). Ms. Ojeda having obtained the

privilege of residing permanently in the United States has been lawfully admitted

to the United States on May 12, 2006 based on her derivative status and the same

employment petition filed on behalf of her husband.

Based on this erroneous interpretation Defendants have erroneously denied

Ms. Ojeda’s application for naturalization in violation of INA. Plaintiff is entitled

to injunctive relief to “compel agency action unlawfully withheld or unreasonably

delayed” and to hold unlawful and set aside agency action that, is not in

accordance with the law. 5 U.S.C. §§706 (1) and (2)

Finally, while Defendants argue that Ms. Ojeda was not “lawfully admitted”

for permanent residence in this specific case, unfortunately Ms. Ojeda’s case is not

the only one where the USCIS’s officers failed to perform their duties correctly

and in accordance with the law. More specifically counsel has a pending Petition

for De Novo Review on Denial of Application for Naturalization and Request for a

Hearing Pursuant to 8 U.S.C. §1421 (c) with this court due to USCIS’s failure to

properly perform their duties. (See Case No.1:16-cv-00798-AWI-BAM)

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SECOND CLAIM FOR RELIEF

Violation of Immigration and Naturalization Act and Administrative

Procedures Act

(Negligence)

43. Ms. Ojeda realleges paragraphs 1-42 herein.

44.Respondents violated the INA when it breached its duty and failed to

review its files and investigate in advance Ms. Ojeda’s adjustment of status case.

Respondents admitted Ms. Ojeda as a lawful permanent resident of the United

States 11 years after she was ordered deported. Respondents did not rescind Ms.

Ojeda’s permanent resident status within the five-year statutory period. See INA

§246 (a); 8 U.S.C. §1256 (a) Ms. Ojdeda’s green card was granted due to

Respondents’ failure to perform their duties and there is no proof to the contrary.

45. Respondent’s allegations that Ms. Ojeda was not “lawfully admitted” for

permanent resident, are simply erroneous because the same

government/Respondents, instead of executing Plaintiff’s removal order in fact

approved Ms. Ojeda’s I-485 application and based on that approval Ms. Ojeda

became a lawful permanent resident of the Untied States.

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46.Defendants owe plaintiff a clear and certain duty to adjudicate plaintiff’

application on the basis that Ms. Ojeda remains a Lawful Permanent Resident of

the United States and was not stripped of the same status by the Respondents’

administrative “black-holes”, by the Respondents’ numerous failures to comply

with their duties and in accordance with the law and the governing regulations.

47. Because Defendants in their decision dated February 8, 2017 concede

that they have failed to perform their duties and because Ms.Ojeda’s permanent

status was never “rescinded” thus she is eligible for U.S. citizenship through

naturalization. Hence, Respondents’ attempts to discriminate against Ms. Ojeda

and deny naturalization, to which she is legally entitled, are outrageous violations

of her constitutional rights.

THIRD CLAIM FOR RELIEF

Violation of APA

48. Ms. Ojeda realleges paragraphs 1-47 herein.

49. Defendants’ denial of Ms. Ojeda’s naturalization application is an

arbitrary, capricious abuse of discretion not in accord with the law.

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50. Ms. Ojeda further requests that the Court hold unlawful and set aside

Defendants’ denial of Ms. Ojeda’s naturalization application pursuant to the APA

5 U.S.C. §706 (2).

PRAYER FOR RELIEF

WHEREFORE, Plaintiff-Petitioner, respectfully requests that this Court:

1. Assume jurisdiction over this matter;

2. Order that a hearing take place in this matter;

3. Review de novo Plaintiff-Petitioner’s application for naturalization and

grant her naturalization;

4. Award Plaintiff reasonable costs and attorney’s fees under the Equal

Access to Justice Act; and

5. Grant such further relief as the Court deems just and proper.

Date: 03/24/2017 By: /S/ Andrew Fishkin

______________________

Andrew Fishkin, Esq.

Attorney for Plaintiff

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List of Exhibits

Exhibit 1: Copy of Plaintiff’s Permanent Resident Card

Exhibit 2: Copy of USCIS’s Decision Dated: October 24, 2015

Exhibit 3: Copy of Form N-336, Request for Hearing on a Decision in

Naturalization Proceedings, NBC*1690011030

Exhibit 4: Copy of USCIS’s Decision Dated: February 8, 2017

Exhibit 5: Copy or Mr. Jose Ojeda’s I-485 Interview Notice

Exhibit 6: Record of Sworn Statement Copy

Exhibit 7: Copy of Marriage Certificate

Exhibit 8: Copy of I-485 Approval Notice, WAC 05 195 50384

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Case 1:17-cv-00433-DAD-SAB Document 1-2 Filed 03/24/17 Page 1 of 3

EXHIBIT 2

Case 1:17-cv-00433-DAD-SAB Document 1-2 Filed 03/24/17 Page 2 of 3

October 24, 2015

Gabriela Ojeda iOOO El Camino Reai Arvin, CA 93203

Dear Gabriela Ojeda:

DECISION

U.S. Ocparlmcnl of Homeland Security

ll.S. Cilizcnship and lmmigraLinn Service:; f."rc:sno Field 0(/in• 74!1 P Slrccl. Suite 12(1 l:n::mo. Cl\ 93 721

U.S. Citizenship and Immigration Services

A098 471 988 N BC*005974395

Thank you for submitting Form N-400, Application for Naturalization, to U.S. Citizenship and Immigration Services (USClS) under section 316 of the Immigration and Nationality Act (INA).

After a thorough review of the information provided in your application for naturalization, the documents supporting your application, and your testimony during your naturalizati'on interview, USC IS has determined that you are not eligible for naturalization. Accordingly, USCIS must deny your application for naturalization.

Generally, to qualify for naturalization under INA 316, an applicant must:

o Be 18 years of age or older at the time of filing Form N-400;

o Be lawfully admitted for permanent residence;

o Be a lawful permanent resident for at least 5 years at the time of filing Form N-400;

• Demonstrate good moral character for at least 5 years prior to the Form N-400 filing date, and during the period leading to administration of the Oath of Allegiance;

• Have resided continuously in the United States for at least 5 years as a lawful permanent resident before filing Form N-400;

o Have resided for at least 3 months in the State or USCIS District where residency is claimed before filing Form N-400;

o Have resided continuously in the United States from the date of filing Form N-400 up to the time of administration of the Oath of Allegiance;

o Be physically present in the United States for at least 2Y2 years at the time of filing Form N-400;

o Demonstrate a basic knowledge of U.S. history and government;

o Demonstrate the ability to read, write, and speak words in ordinary usage in the English language; and

o Establish an attachment to the principles of the U.S. Constitution and be disposed to the good order and happiness of the United States.

Case 1:17-cv-00433-DAD-SAB Document 1-2 Filed 03/24/17 Page 3 of 3

\t··

Statement of Facts and Analysis Including Ground(s) for Denial

On May 12, 2006, you obtained permanent resident status in immigrant classification E39. USC IS received your Form N-400 on June 15, 2015, and on September 18, 2015, you appeared for an interview to determine your eligibility for naturalization.

During your interview and review of your record, USCIS determined that you were not lawfully admitted for permanent residence. Your record reflects that on May 12, 2006, you adjusted as a Permanent Resident. On or about January 23, 1990, you entered the United States without inspection. On December 13, 1993, you were apprehended by Immigration Naturalization Service (INS) in New York. You were ordered deported on August 24, 1994. However, you failed to depart fi·om the United States. On July 7, 2005, you filed an 1-485 as an E39. On May 12, 2006, USC IS approved the 1-485. Because you never left the United States. you never fulii lied the deportation. Therefore USC IS did not have jurisdiction over the 1-485 at the time of adjustment.

To qualify for naturalization under INA 316, you must demonstrate that you meet all the requirements for naturalization including the requirement of having been lawfully admitted for permanent residence. You have not demonstrated that you have been lawfully admitted for permanent residence and, therefore, are ineligible for naturalization. See INA 318.

If you believe that you can overcome the grounds for this denial, you may submit a request for a hearing on Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings, within 30 calendar days of service of this decision (33 days if this decision was mailed). See 8 CFR 336.2 (a) and 103.8(b). Without a properly filed Form N-336, this decision will become final. See INA 336.

To access Form~i]]?or if you need additional information, please visit the USCIS Web site at www.uscis.gov or call olll· National Customer Service Center toll fi·ee at 1-800-375-5283. You may also make an appointment to speak to a USCIS staff member in person at the USCIS office having jurisdiction over your current place of residence. To schedule an appointment, go to www.uscis.gov and select IN FOP ASS.

Sincerely, l\

'·~otL{att.oJ~ Jonathan Crawford Field Office Director

MC

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Case 1:17-cv-00433-DAD-SAB Document 1-4 Filed 03/24/17 Page 1 of 3

EXHIBIT4

Case 1:17-cv-00433-DAD-SAB Document 1-4 Filed 03/24/17 Page 2 of 3

FEB 0 8 ·2017

Gabriela Ojeda 1000 El Camino Real Arvin, CA 93203

Dear Gabriela Ojeda:

DECISION

U.S. Department of Homeland Sccurit} l J .S. Citizenship and Immigration Sen il:..:S Fresno Ficici {?(/icc 744 P Street. Stl.!. 120 Fresno. Ct\ <>.n:! I

/~--Q~.i;~\ U.S. Citizenship :~~kj and Immigration '~~- Services · ~1tf.!~ .s~~'

A98471988 NBC 1690011030

Thank you for submitting Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings, to U.S. Citizenship and Immigration Services (USCIS) on November 20, 2015. After a thorough review of the record, USCIS reaffirms the decision to deny your Form N-400 for the following reason(s).

Statement of Facts and Analysis Including Ground(s) for Reaffirming Denial

On October 24, 2015, USC IS denied your Form N-400 because during your interview and review of your record, USC IS determined that you were not lawfully admitted for permanent residence. Your record reflects that on May 12, 2006, you adjusted as a Permanent Resident.

On or about January 23, 1990, you entered the United States without inspection. On December 13, 1993, you were apprehended by legacy Immigration and Naturalization Services (INS) in New York. You were ordered deported by the immigration court on August 24, 1994. During your September 18, 2015 N-400 examination, you stated that you "never left the US since I was caught by INS in 1993." Therefore, the December 13, 1993 deportation order was never executed and you remained in proceedings. On July 7, 2005, you filed a Form 1-485, Application to Registration Pe1manent Residence or Adjust Status, requesting adjustment of status in E39 classification. On May 12, 2006, USC IS approved your Form 1-485. A review of your Form l-485 confirms that you were not intt:rviewcd prior to approval of that application. A review of all your immigration records establishes that the documents relating to your January 23, 1990 apprehension were not identified and joined to your Form 1-485 before approval of that application.

Because you never left the United States, you remained in immigration proceedings with the Immigration Court. Therefore, USC IS did not have jurisdiction over the Form 1-485 at the time of your adjustment. See Title 8, Code of Federal Regulations (8 CFR) 1245.2(a)( 1 )(i). Consequently, you were not lawfully admitted at the time USCIS granted your F01m 1-485. As an alien who was not lawfully admitted, you are inelligible for naturalization. See INA section 318.

On November 20, 2015, you filed Form N-336 and on July 20, 2016, you appeared for a hearing to review the denial ofyour Form N-400. You state that you have overcome the grounds of the denial.

Case 1:17-cv-00433-DAD-SAB Document 1-4 Filed 03/24/17 Page 3 of 3

In the written statement supporting your Form N-336, your attorney presents arguments concerning whether your status as a permanent resident has been "stripped." USCIS confirms that the notice dated October 24, 2015 was not a determination on your permanent resident status.

During your hearing on July 20, 2016, your attorney argues verbally that the instances when you have left a~d then reentered to the United States subsequent to your adjustment of status could also meet the requirement of INA section 318, since these are instances when you are admitted to the United States as a permanent resident. However, the definition of "lawfully admitted for permanent residence" exists at INA section 101(a)(20) as "the status ofhaving been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed."

After a complete review of the information provided on your Form N-400, Application for Naturalization, the documents submitted in support of your application and request for hearing, and the testimony you provided during your naturalization interview and your N-336 review hearing, USC IS reaffirms the decision to deny your Form N-400. See INA section 318.

This decision constitutes a final administrative denial of your naturalization application. You may request judicial review of this final determination by filing a petition for review in the United States District Court having jurisdiction over your place of residence. See INA 3 1 0( c).

If you need additional infonnation, please visit the USCIS Web site at www.uscis.gov or call our National Customer Service Center toll-free at 1-800-375-5283. You may also make an appointment to speak to a USC IS staff member in person at the USC IS office having jurisdiction over your current place of residence. To schedule an appointment, go to www.uscis.gov and select INFOPASS.

Sincerely,

rv,~ Lynn uan Feldman Field Office Director

Andrew Fishkin, Esq.

2