Wednesday, October 24, 2012

Until Naturalization is Complete, Deportation is Possible

A Dominican national discovered the hard way that until you complete the oath ceremony, you are not a citizen and subject to deportation.  In the Third Circuit case of Duran-Pichardo v. Attorney General of the United States, Mr. Duran-Pichardo, a permanent resident, applied for citizenship and passed the tests at the interview in 1998.  But, INS told him that he would have to wait for a decision on his case.  Mr. Duran-Pichardo followed up with numerous telephone calls, but got no decision.  After some time, he gave up.

It was then that Mr. Duran-Pichardo got into trouble.  He pled guilty to a drug trafficking charge, which is an aggravated felony.  He was placed in removal proceedings.  His attempt to restart his naturalization case failed, as USCIS now denied his application based on the aggravated felony.  The Third Circuit, while sympathetic to the long delay in Government action in his naturalization case, upheld his order of deportation.

Had Duran-Pichardo simply taken advantage of a portion of the Immigration and Nationality Act that permitted him to sue the Government over his delayed naturalization application, he could have avoided deportation.  Section 336(b) of the Act provides that if a decision is not made within 120 days of the examination, an applicant can sue in the U.S. District Court, and have the court decide whether to grant naturalization.

I go into more detail in this article.

If your naturalization application is delayed for any reason, contact a knowledgeable immigration lawyer to determine if you should use section 336(b), and sue in U.S. District Court.

By:  William J. Kovatch, Jr.
(703) 837-8832

William J. Kovatch, Jr. is admitted to practice in the U.S. District Court for Eastern Virginia.

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