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  • 1. Badly Bungled N-600 Still Did Not Warrant equitable estoppel or nunc pro tunc Approvaland a Review of Division of Statutory Authority under the Immigration and NationalityAct By Joseph P. WhalenOn July 8, 2011, the 5th Circuit Court of Appeals issued a published decision in Robertson-Dewar v. Holder, No. 09-60847 (5th Cir. July 8, 20111). This case involves an individual whowas born out-of-wedlock in Jamaica on June 28, 1980. He was petitioned by his father andimmigrated to the U.S. in February 1993. His father naturalized in October 1993. Robertson-Dewar was 13 years old at the time that his father naturalized. On January 10, 1996, the fatherfiled a form N-600, Application for Certificate of Citizenship on behalf of his son with INS.Robertson-Dewar was around 15 ½ at that time. At the time that the N-600 was filed, the lawwas different that it is today. The controlling section of law at that time was INA § 322 [8 USC §1433] or in the alternative, INA § 321 [8 USC § 1432]. For the sake of clarity, both sections arereviewed. At the applicable time for consideration of Robertson-Dewar‟s eligibility, former INA§ 321 read as follows:321 CHILD BORN OUTSIDE OF UNITED STATES OF ALIEN PARENT;CONDITIONS UNDER WHICH CITIZENSHIP AUTOMATICALLYACQUIRED SEC. 321. [8 U.S.C. 1432] (a) A child born outside of the United States of alien parents, or of an alien parent and a citizen parent who has subsequently lost citizenship of the United States, becomes a citizen of the United States upon fulfillment of the following conditions: (1) The naturalization of both parents; or (2) The naturalization of the surviving parent if one of the parents is deceased; or (3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if (4) Such naturalization takes place while such child is under the age of eighteen years2; and1 Presently available at: http://www.ca5.uscourts.gov/opinions/pub/09/09-60847-CV0.wpd.pdf2 See Matter of Fuentes, 21 I&N Dec. 893 (BIA 1997) at: http://www.justice.gov/eoir/vll/intdec/vol21/3316.pdf as tothe retroactive changes to the law as applied to that case.Equitable Estoppel and Nunc Pro Tunc are Inapplicable to an N-600 Page 1
  • 2. (5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent last naturalized under clause (1) of this subsection, or the parent naturalized under clause (2) or (3) of this subsection, or thereafter begins to reside permanently in the United States while under the age of eighteen years. (b) Subsection (a) of this section shall apply to an adopted child only if the child is residing in the United States at the time of naturalization of such adoptive parent or parents, in the custody of his adoptive parent or parents, pursuant to a lawful admission for permanent residence.Robertson-Dewar was an out-of-wedlock child who was apparently legitimated by his unwedfather. It was the unwed father who naturalized. In the grand scheme of things, it was immaterialwhether he was legally legitimated by his father because his mother did not naturalize, thus thequestion of legitimation as a basis to deprive a child of derivation via the unwed mother becamemoot in this case.In addition, as the birth parents never married each other, there is no way that they could havebeen legally separated. The son was a biological child and was never adopted by anyone. Anunwed father, whether he legitimated his child or not, could never facilitate derivativecitizenship under that section of law (except as a sole surviving parent). The father was able toestablish at the very least, a bona fide parent-child relationship which was good enough to securean immigrant visa. As Robertson-Dewar never qualified under INA § 321(a) or (b) he was thenleft with a possibility of a form of “expedited naturalization” via former INA § 322. Theapplicable section of law at that time read as follows:322 CHILD BORN OUTSIDE THE UNITED STATES; APPLICATIONFOR CERTIFICATE OF CITIZENSHIP REQUIREMENTS SEC. 322. [8 U.S.C. 1433] (a) A parent who is a citizen of the United States may apply to the Attorney General for a certificate of citizenship on behalf of a child born outside the United States. The Attorney General shall issue such a certificate of citizenship upon proof to the satisfaction of the Attorney General that the following conditions have been fulfilled: (1) At least one parent is a citizen of the United States, whether by birth or naturalization. (2) The child is physically present in the United States pursuant to a lawful admission. (3) The child is under the age of 18 years and in the legal custody of the citizen parent.Equitable Estoppel and Nunc Pro Tunc are Inapplicable to an N-600 Page 2
  • 3. (4) If the citizen parent is an adoptive parent of the child, the child was adopted by the citizen parent before the child reached the age of 16 years and the child meets the requirements for being a child under subparagraph (E) or (F) of section 101(b)(1). (5) If the citizen parent has not been physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years- (A) the child is residing permanently in the United States with the citizen parent, pursuant to a lawful admission for permanent residence, or (B) a citizen parent of the citizen parent has been physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two which were after attaining the age of fourteen years. (b) Upon approval of the application (which may be filed abroad) and, except as provided in the last sentence of section 337(a), upon taking and subscribing before an officer of the Service within the United States to the oath of allegiance required by this Act of an applicant for naturalization, the child shall become a citizen of the United States and shall be furnished by the Attorney General with a certificate of citizenship. (c) Subsection (a) of this section shall apply to the adopted child of a United States citizen adoptive parent if the conditions specified in such subsection have been fulfilled.In Robertson-Dewar‟s case, his application was not completed before he turned 18 and he losteligibility under that provision of law. This is unfortunate but not at all, unusual. I should nothave to remind any longtime immigration practitioners about the significance of the time periodin which this N-600 was filed but will explain for the young pups out there.In fiscal year 1996 (Oct. 1, 1995-Sept. 30, 1996), INS began to implement an initiative to combatits giant backlog of naturalization applications. That initiative was known as Citizenship USA3 orsimply, CUSA4. CUSA had been in the formative stage since at least 1993. CUSA was a madrush to plow through the N-400 backlog as quickly as possible. A consequence of that effort wasplacing certain other applications on hold or “on the back burner”. N-600s and many otherapplications and petitions fell by the wayside, were ignored or “set aside” thus creating backlogsof their own. On top of CUSA, INS was also inundated with the first round of applications forINA § 245(i) adjustments. In fact, it was the penalty fees gained from 245(i) that funded much ofCUSA. Congress had envisioned and INS had “promised” that it would have a dual focus onboth N-400s and I-485s (esp. under 245(i) which initially had to be fully adjudicated andapproved by the “sunset” date). INS did not live up to the promise and CUSA cut into theadjustment processing and various other programs‟ delivery5 quite significantly. Background3 The DOJ OIG Main Report Table of Contents with links is found at: http://www.justice.gov/oig/special/0007/4 The CUSA portion of the DOJ OIG Report at: http://www.justice.gov/oig/special/0007/cusaimp.pdf5 See the “other programs” part of the DOJ OIG Report at: http://www.justice.gov/oig/special/0007/effects.htmEquitable Estoppel and Nunc Pro Tunc are Inapplicable to an N-600 Page 3
  • 4. checks on naturalization applicants suffered and many convicted felons and other ineligibleapplicants were naturalized in error. That unfortunate situation led to even greater focus on N-400 processing. Naturalization Quality Procedures (NQP) was born and it too evolved over theyears, it settled into its “current” form after about a decade or so of revisions. There was also around of denaturalization cases. The “administrative denaturalization” or “revocation”regulations at 8 CFR § 340.1 were invalidated on July 20, 2000, by the Ninth Circuit Court ofAppeals in the class action lawsuit Gorbach v. Reno, 219 F.3d 1087 (9th Cir. 2000), and resultedin a final injunction prohibiting the use of these regulations on February 14, 2001. So, it is nowonder that resources were stretched so thin that Robertson-Dewar aged-out before anyonecould look at his N-600 citizenship application case. Had the father6 filed earlier he couldperhaps have avoided the CUSA-caused delay. Anyway, the fact is that the father waited 2 ½years after naturalizing to file an N-600 and then INS did not reach it for another 2 ½ years.The 5th Circuit stated that... “[i]f estoppel against the government is available, the party seekingestoppel must establish five things: (1) affirmative misconduct by the government, (2) that thegovernment was aware of the relevant facts and (3) intended its act or omission to be acted upon,(4) that the party seeking estoppel had no knowledge of the relevant facts and (5) reasonablyrelied on the government‟s conduct and as a result of his reliance, suffered substantial injury.United States v. Bloom, 112 F.3d 200, 205 (5th Cir. 1997).” At p. 5 Robertson-DewarThe 5th Circuit noted that Robertson-Dewar was told in 1999, that he was NOT a citizen. Thisapplicant knew that he had aged-out when he was an LPR for over five years, having immigratedin 1993, and when he was just barely over the age of 18 and therefore fully eligible to seeknaturalization by filing an N-400 at that point. He did not do that. Instead, he engaged in thecriminal dissemination of child pornography in violation of Pennsylvania law. He was convictedfor that in 2002. On December 14, 2006, ICE served Robertson-Dewar with a notice to appear inremoval proceedings. Several days later, on December 18, 2006, the U. S. Citizenship andImmigration Services (USCIS) denied his 1996 application for a certificate of citizenship.Admittedly, and quite obviously, DHS was sloppy at this point. Prior to issuing the NTA, ICEshould have combed through the A-file and discovered the N-600. Not having seen it myself, Ican only guess what was found. There may indeed have been an “unadjudicated” N-600 as the5th Circuit stated, I doubt that is correct. Later in the same opinion, the Court stated that ... “[Robertson-Dewar] admit[ted] that he was told in 1999 that he was not a citizen, and neither he nor his father adequately followed up on the naturalization application.” At p. 6Prior to major changes in processing procedures, formal written decisions in N-600 cases andindeed, even N-400 cases were not always issued well into the late 1990s. In the old days, INStook care of the “examinations” for such applicants for naturalization and in the majority ofcases, which did actually get approved, a formal order was issued as a pre-formatted Court Orderby a District Court Judge. The newly minted citizen got a certificate and walked away happy.That “Court Order” was prepared by INS on form N-481, Naturalization Petitions Recommendedto be Granted (on behalf of children) (and) Order of Court Granting Petitions for6 Had the father been more responsible and diligent in many aspects of his relationship with his son perhaps hewould not have raised a young man who peddled child pornography and the son could have naturalized on his owninstead of going to prison and getting deported because of it.Equitable Estoppel and Nunc Pro Tunc are Inapplicable to an N-600 Page 4
  • 5. Naturalization, or form N-480, Naturalization Petitions Recommended to be Granted (and)Order of Court Granting Petitions for Naturalization (for adult applicants). On the other hand,many denials were handled via the form N-484, Naturalization Petitions Recommended to beDenied (and) Order of Court Denying Petitions for Naturalization, which were also simplyprepared and submitted by INS to the Judge. Most folks were verbally told of ineligibility and ifthey could re-apply in the future were encouraged to withdraw their petitions for naturalizationas opposed to having a formal denial go on record. Most did just that. On the other hand, ifsomeone was deportable then things took another path. A simple verbal advisory and withdrawalwas easier for the INS Examiner and the naturalization aspirant to just end it quickly, end ofstory, come back another day. This was probably the case when he was told that he did notqualify back in 1999. I would hazard a guess that there is most likely a hand-written notation onthat N-600 either simply saying something like: “denied”, “denied, aged-out”, or “withdrawn”plus a date and either initials, a signature, or officer ID#. Depending on the version of the form, itcould also have an attestation or stipulation section that an officer may have completed as wellin order to record the applicant‟s ineligibility.I for one, have no doubt that Circuit Court Judges, Immigration Judges, BIA Board Members,and especially, ICE Counsel would not even know what to look for on an immigration ornaturalization form, especially and old obsolete version of one. These old INS forms might havestill been used until IMMACT90 shifted naturalization authority from the Courts to the AttorneyGeneral in 1990, and perhaps for a bit longer. Some of these old “INS and Court” form numberscould still be the actual legal form designations for the computer-generated lists that exist today.I have never asked or looked to find out.The 5th Circuit discussed the BIA‟s determination that it had no jurisdiction to decide as toRobertson-Dewar‟s “eligibility for naturalization” and relied on Matter of Hidalgo, 24 I&N Dec.103 (BIA 2007). While I agree on the outcome and with the “procedural requirement” in thatcase where the BIA ruled that it has jurisdiction to terminate removal proceedings only where ithas received “some form of affirmative communication from the DHS” regarding the alien‟sprima facie eligibility for naturalization. I disagree with the 5th Circuit‟s and the BIA‟s legalanalysis as to Robertson-Dewar‟s case.The primary statutory authority to make the determination as to a claim to U.S. Citizenship by anindividual who was born abroad but is first asserting the citizenship claim inside the UnitedStates is vested solely in the Secretary of Homeland Security. The Secretary has delegated herauthority to USCIS and the first stage of appellate review of that USCIS decision is vested inAAO. The IJ and BIA have no authority to make a citizenship claim determination in the firstinstance. The Attorney General only has a role to provide opinions and interpretations onquestions of law in these matters and then only after there has been an initial determination byDHS and any available internal agency reviews have been completed. The type of determinationinvolved in a citizenship claim (N-600) is usually very evidence intensive and the experts insorting through that evidence need to complete that review in the first instance. It is noted that acitizenship claim may be made as part of a Petition for Review of an Order of Removal. It is wellwithin the authority of ICE to cancel an NTA or join a Motion to Terminate, without prejudice,in order to allow a putative derivative citizen to pursue that claim through USCIS. USCIS doesEquitable Estoppel and Nunc Pro Tunc are Inapplicable to an N-600 Page 5
  • 6. have the authority to issue an NTA and can do so upon a final administrative decision, preferablyan AAO Dismissal.This is a perfect example of the type of case that ICE should request USCIS to expedite. ICECounsel in 2007, actually stated that the 27 year old Robertson-Dewar appeared to be “faciallyeligible” under INA § 322. I am shocked at the thought of that statement actually having beenmade. ICE Counsel had no business to do any such thing. At most, (s)he should have joined aMotion for (temporary) Termination, without prejudice, to allow USCIS‟ AAO to review thecase on Motion under 8 CFR § 322.5(b) (which is little more than a reiteration of § 341.6) andthen re-issue the NTA upon Dismissal just to properly prepare the record for review by theCircuit Court of Appeals. This is the end of the main article, as it pertains to the 5th Circuit case.The remainder is a general review of the basic underlying statutory authorities involved.On JurisdictionDHS-USCIS-AAOINA § 103 [8 USC § 1103] [The INA was substantially altered by the Homeland Security Act(HSA 2002), and the functions of the former INS under the authority of the Attorney General(A.G.) were transferred to the Secretary of Homeland Security. EOIR (IJ‟s and the BIA) waskept in DOJ under the A.G.] (a) Secretary of Homeland Security (1) The Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, except insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the President, Attorney General, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers: Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling.The Secretary of Homeland Security has delegated matters pertaining to determinations of U.S.citizenship and applications for naturalization among other duties to USCIS via Department ofHomeland Security Delegation Memos 0150 and 0150.1, Delegation to the Bureau of Citizenshipand Immigration Services [now USCIS]. The Administrative Appeals Office (AAO) resideswithin USCIS and is the “other” major Immigration Appellate Body.The jurisdiction of the AAO is limited to that authority specifically granted to it by the Secretaryof the United States Department of Homeland Security. See DHS Delegation Number 0150.1(effective March 1, 2003). Delegations that pertain to the Secretary„s powers under the INA arehard tom find. Although the Secretary has the authority to publish her delegations in the FederalRegister or more easily on her website, this has not been done. Information about what is inthose Delegation Memos is only found 2nd hand in other documents such as AAO Decisions,GAO Reports, the CIS Ombudsman‟s reports and in Court Decisions.Equitable Estoppel and Nunc Pro Tunc are Inapplicable to an N-600 Page 6
  • 7. The AAO exercises appellate jurisdiction over the matters described in 8 CFR § 103.1(f)(3)(iii)(as in effect on February 28, 2003), with two exceptions: (1) petitions for approval of schoolsand the appeals of denials of such petitions are the responsibility of Immigration and CustomsEnforcement (ICE); and (2) applications for S nonimmigrant status are the responsibility of theOffice of Fraud Detection and National Security (FDNS) of U.S. Citizenship and ImmigrationServices.Attorney General-EOIR-BIA-IJ’sINA § 103 [In addition to the specific authority in the proviso in (a) as the final arbiter ofquestions of law, the A.G. remains the boss over EOIR and directly over BIA Decisions. Evenwhere the BIA is restricted on standard or level of review, such as: “for substantial evidence” orwhen it “may not be the fact-finder”, the A.G. retains plenary power to perform a full de novoreview of any immigration case before him, where he has authority in the first instance. When heis reviewing DHS determinations, he must let DHS have first crack at the case where DHS hasthe statutory authority in the first instance before he can review its decision and then only as tomatters of legal interpretation, i.e. “questions of law”.] (g) Attorney General (1) In general The Attorney General shall have such authorities and functions under this chapter and all other laws relating to the immigration and naturalization of aliens as were exercised by the Executive Office for Immigration Review, or by the Attorney General with respect to the Executive Office for Immigration Review, on the day before the effective date of the Immigration Reform, Accountability and Security Enhancement Act of 2002. (2) Powers The Attorney General shall establish such regulations, prescribe such forms of bond, reports, entries, and other papers, issue such instructions, review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary for carrying out this section.An Immigration Judge, as one of the current delegated officials under the authority of the A.G.has no statutory authority to make a determination of a claim to U.S. Citizenship in the firstinstance. With the passage of the Homeland Security Act (HSA 2002), the A.G. lost certainstatutory authority under INA § 103 [8 USC § 1103]. The statutory authority to makedeterminations in claims to U.S. Citizenship of persons born abroad, but who make thecitizenship claim from within the United States is in the sole purview of the Secretary ofHomeland Security in the first instance and then subject to judicial review.Equitable Estoppel and Nunc Pro Tunc are Inapplicable to an N-600 Page 7
  • 8. State Department-Passport AgencyINA § 104 [8 USC § 1104] Powers and Duties of the Secretary of State (a) Powers and duties The Secretary of State shall be charged with the administration and the enforcement of the provisions of this chapter and all other immigration and nationality laws relating to (1) the powers, duties, and functions of diplomatic and consular officers of the United States, except those powers, duties, and functions conferred upon the consular officers relating to the granting or refusal of visas; (2) the powers, duties, and functions of the Administrator; and (3) the determination of nationality of a person not in the United States. .......The Secretary of State is also without authority to make a determination as to U.S. Citizenship inthe first instance for an individual inside the United States, in all but the most obscure of caseswhere secondary evidence of birth in the United States is deemed sufficient. The power of theSecretary of State to issue passports, is based in the general availability of primary evidencebeing submitted by most passport applicants who were born in the United States or have alreadyobtained either a Certificate of Citizenship or Certificate of Naturalization from the former INSor currently USCIS, or to have obtained a Consular Report of Birth Abroad [of a United StatesCitizen] (FS-240) from a Consular Officer and/or a passport before entering the U.S.Derivative Citizenship Claim through Parents’ Naturalization:The applicable law for derivative citizenship purposes is "the law in effect at the time the criticalevents giving rise to eligibility occurred." Minasyan v. Gonzales, 401 F.3d 1069, 1075 (9th Cir.2005); accord Jordon v. Attorney General, 424 F.3d 320, 328 (3rd Cir. 2005).Evidentiary Burden and Burden of Proof:"There must be strict compliance with all the congressionally imposed prerequisites to theacquisition of citizenship." Fedorenko v. United States, 449 U.S. 490, 506 (1981). 8 C.F.R. §341.2(c) provides that the burden of proof shall be on the claimant to establish the claimedcitizenship by a preponderance of the evidence. In order to meet this burden, the applicant mustsubmit relevant, probative and credible evidence to establish that the claim is "probably true" or"more likely than not." Matter of E-M-, 20 I&N Dec. 77,79-80 (Comm. 1989).A person may only obtain citizenship in strict compliance with the statutory requirementsimposed by Congress. INS v. Pangilinan, 486 U.S. 875, 884 (1988). Moreover, "it has beenuniversally accepted that the burden is on the alien applicant to show his eligibility forcitizenship in every respect" and that any doubts concerning citizenship are to be resolved infavor of the United States. Berenyi v. District Director, INS, 385 U. S. 630, 637 (1 967). Theapplicant must meet this burden by establishing the claimed citizenship by a preponderance ofthe evidence. 8 C.F.R. § 341.2(c).Equitable Estoppel and Nunc Pro Tunc are Inapplicable to an N-600 Page 8
  • 9. Specific Requirements:Because the applicant was born abroad, she is presumed to be an alien and bears the burden ofestablishing her claim to U.S. citizenship by a preponderance of credible evidence. See Matter ofBaires-Larios, 24 I&N Dec. 467, 468 (BIA 2008).“The term "legal separation" in the context of derivative citizenship means either a limited orabsolute divorce obtained through judicial proceedings. Matter of H, 3 I&N Dec. 742, 743-44(Cent. Office 1949). See Morgan v. Attorney General, 432 F.3d 226, 233 (3d Cir. 2005) (findingno legal separation absent a judicial decree); Nehme v. INS, 252 F.3d 415,426 (5th Cir. 2001)(finding that "in the United States, the term „legal separation‟ is uniformly understood to meanjudicial separation") (emphasis in original).”7Powers Beyond AAO’s Authority:“The AAO, like the Board of Immigration Appeals, is without authority to apply the doctrine ofequitable estoppel so as to preclude a component part of USCIS from undertaking a lawfulcourse of action that it is empowered to pursue by statute or regulation. See Matter ofHernandez-Puente, 20 I&N Dec. 335, 338 (BIA 1991). Res judicata and estoppel are equitableforms of relief that are available only through the courts. The jurisdiction of the AAO is limitedto that authority specifically granted to it by the Secretary of the United States Department ofHomeland Security. See DHS Delegation Number 0150.1 (effective March 1, 2003); see also 8C.F.R. § 103.1 (f)(3)(E)(iii) (as in effect on February 28, 2003) [and subsequent amendments,this includes N-600‟s]. Accordingly, the AAO has no authority to address the petitionersequitable estoppel and res judicata claims.”8“Even if the applicants assertions regarding the delays in his fathers naturalization and his ownapplication were true, the AAO is without authority to apply the doctrine of equitable estoppel toapprove an application for derivative citizenship nunc pro tunc.”97 See: May182010_03E2309.pdf8 A non-precedent AAO Administrative Decision pertaining to an I-140, Immigrant Petition for Alien Worker, as a Member of the ProfessionsHolding an advanced Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration and Nationality Act, 8 U.S.C.§1153(b)(2). See: Apr282009_01B5203.pdf on www.uscis.gov9 From the most recent non-precedent AAO Decision on an N-600 at: May192010_01E2309.pdf at www.uscis.govEquitable Estoppel and Nunc Pro Tunc are Inapplicable to an N-600 Page 9