Legal Question in Immigration Law in California

No, it's not enough to mention that "it should have been included into 2006 application package". Did you actually include the copy of your Naturalization Certificate in your application package in 2006? Did you list it in your cover letter or index of the documents? Or it should have been included, but was not included?

You cannot definitely tell that it was USCIS fault for not asking for Natz Certificate earlier (since 2006). Depending on the family relationship with the beneficiary, it takes a couple of years for the pending petition to be processed and approved. Apparently, now in 2009 they were reviewing your petition and found it lacking the initial evidence (proof of your US citizenship).

As previously mentioned to you in your other posting, it probably is not a solid case for arguing a motion to reopen. It sounds like you may not have included in your initial I-130 package your naturalization certificate. If not, then the USCIS was correct in asking for it to prove that you are a US Citizen and are eligible to file for the beneficiary (depending on the relationship you have with the beneficiary). If it was not an "immediate" relationship (e.g., a parent or spouse), the I-130 processing times are longer. If you have proof that you did include the natz. certificate in the initial filing, then you may be able to argue that the RFE shouldn't have been issued in the first place, and that you also did file a response. Still, it's not a strong argument to make.

Otherwise, you may just have to file a new petition again, with the proper documentation this time.

I'm not sure I understand completely, however, since there was no proof of delivery, this is a "He said, she said" situation and I don't know if it's worth filing a motion that way. You have to prove things by a preponderance of the evidence and as long as it's 50/50 (he and she said), to me that's not preponderance. I'd advise filing a new petition for that reason, though you could try the motion. Downside of doing that is if a new I-130 is required, you will have lost the time while a motion is pending, which could be considerable time- six months to a couple of years depending where filed and relevant changing circumstances after filing. If filing is important to establish a priority date, then filing a new one now is all the more important.

Feel free to be in touch with me at [email protected]. My website at www.yardum-hunter.com includes information and testimonials. You can also phone me at 818 609 1953.

I'm a certified specialist and active in immigration bar leadership. I hope to have the opportunity of exploring this with you.