Citizenship claim exhaustion and review


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Citizenship claim exhaustion and review

  1. 1. Citizenship Claims: Issue Exhaustion vs. Agency Review Exhaustion By Joseph P. WhalenBorn in the U.S.A.Deciding a claim to United States Citizenship (USC) is of paramount importanceto an individual. Certain rights, responsibilities, entitlements, protections,penalties, and obligations hinge on attainment, recognition, or denial of such status.The vast majority of U.S. citizens are simply born in the United States and it is aneasy determination to make for most through a birth certificate issued in the UnitedStates. This is based on the legal principle of jus soli (law of soil or place of birth)with only a few obscure exceptions.Born AbroadThe vast majority of persons born abroad who become USCs do so throughnaturalization by their own personal choice via the filing of a form N-400. Someindividuals born abroad may be USCs at birth through their parents via the legalprinciple of jus sanguinis (law of blood or descent); derive naturalized citizenshipstatus through the naturalization of a parent (biological or adoptive); throughadoption by a U.S. citizen itself as a qualified orphan; or through a special lastresort expedited naturalization process for a child of a USC (biological oradoptive), under Immigration and Nationality Act (INA) § 322 [8 USC 1433]. Thissecond group (children) may obtain proof of their citizenship status throughvarious means.Asserting a Citizenship ClaimIf a USC is born abroad of at least one USC parent, the child’s birth may beregistered at an Embassy or Consulate of the U.S. Department of State (DOS)abroad. DOS is empowered under INA § 104 [8 USC § 1104] to handle suchmatters abroad. DOS will issue a Consular Report of Birth Abroad [of a Citizen ofthe United States of America] upon application and sufficient proof while the childis under the age of 18 years. The parent may also obtain a passport for that child. 1 USC Claim Exhaustion and Review 8/9/11
  2. 2. The alternative to a Consular Report when the child of a USC is not entitled to it isthe filing of a form N-600K from abroad with U.S. Citizenship and ImmigrationServices (USCIS) domestically and traveling to the U.S. before the child reaches18 in order to obtain expedited naturalization. The USC child born abroad may,upon reaching age 18, apply in their own right for a passport only if still abroad.Proving the citizenship claim via a passport application might be accepted by thePassport Agency or they may decline to entertain the request and defer to USCIS.In reality, the Passport Agency is not authorized to make such a determination inthe first instance from inside the U.S. Normally, if the issue of citizenship ariseslater in life and/or while inside the United States the grown “child” or the parenton behalf of the minor child, may present the citizenship claim to, and have itadjudicated by USCIS on form N-600 under the authority delegated to it by theSecretary of the Department of Homeland Security (DHS).Citizenship Claims in Removal ProceedingsPreviously, the Attorney General (AG) as the head of the Department of Justice(DOJ) could make the citizenship determination domestically through the formerImmigration and Naturalization Service (INS) and/or Executive Office ofImmigration Review (EOIR) through its Immigration Judges (IJs) and the Board ofImmigration Appeals (BIA). Upon the creation of DHS, the AG was stripped ofthat authority along with general naturalization authority. The EOIR was retainedin DOJ and the AG’s authority remains as to matters of legal interpretation of theINA and continues to preside over Removal Proceedings through the IJs and BIA.An IJ or the BIA may terminate Removal Proceedings if alienage is sufficientlyquestioned and DHS does not meet it burden of proof. However, the AG, IJs, andthe BIA are without authority to adjudicate the actual citizenship claim. The personwhose alienage and citizenship status is unclear may have that claim adjudicatedby USCIS.USCIS and AAO Citizenship DeterminationsIf the initial USIS decision is to deny the claim, the claimant may appeal to theAdministrative Appeals Office (AAO), the appellate body within USCIS. There is 2 USC Claim Exhaustion and Review 8/9/11
  3. 3. a specific procedure concerning appeals and motions on this subject matter. Theprocedure is overly complicated, misunderstood and misapplied with greatregularity by applicants, their legal representatives, and USCIS both initially andon review. USCIS in general and AAO in particular have routinely failed toexplain the denied claimant’s appeal and motion rights.The AAO is apparently in the process of formulating new regulations but noproposed or interim rule has yet been published. New rules have been needed foryears. New rules were needed even before INS was abolished and dissolved whenUSCIS was created within DHS on March 1, 2003. With the creation of DHS, newrules became more imperative but over 8 years later and they are still underconstruction. AAO has used the Administrative Procedures Act (APA makes upportions of 5 USC) as a fall back along with now repealed regulations, andholdover INS regulations that were shared with EOIR. EOIR began rulemakingbefore DHS was created back when INS and EOIR were both in DOJ. Adivergence was in its infancy. After the terrorist attacks on September 11, 2001,the urgency to reform AAO fell by the wayside and is only now seeing aresurgence in that effort. It is long overdue.Exhaustion of Agency ReviewIn general, an applicant before an executive agency needs to exhaust theiradministrative avenues of review before seeking judicial review. The APA hasgenerally applicable provisions available for use when no other statutes orregulations are available for exhaustion. Certain benefits and penalties found inthe INA have specific statutory provisions for review and some are furtherprovided in the Code of Federal Regulations (CFR). Citizenship claims havespecific avenues for review. However, it is recognized by the courts thatexhaustion may be sidestepped when it is futile and the courts may waiveexhaustion when the agency has failed to follow its own regulations. In the case ofcitizenship claims, USCIS has screwed up its end of the bargain and judicialreview should be readily available based on USCIS screw ups in this regard. 3 USC Claim Exhaustion and Review 8/9/11
  4. 4. Exhaustion of IssuesThe Circuit Courts of Appeals routinely remind us in their Opinions andMemoranda that they will only review issues that have been presented below butdo have certain exceptions on that matter. The Administrative Appellate Bodieswithin certain types of agencies (benefits granting agencies) tend to NOT requireexhaustion of all issues below because most will review cases de novo. AAO isone such de novo review appellate body. The BIA on the other hand, does requirea certain degree of issue exhaustion and does not routinely perform de novo reviewof IJ fact-finding or credibility determinations unless there is clear substantialevidence otherwise or something that it considers egregious. After administrativereview is sufficiently exhausted whether by following through with the agency’sregulatorily prescribed path or by circumventing it and claiming an exception, thefinal agency decision is generally reviewable in the federal courts all the way tothe U.S. Supreme Court. Purely discretionary decisions are not reviewable but thedetermination as to someone’s citizenship claim is not discretionary. Certainelements is the weighing of evidence rely on judgments. As much as thesejudgment calls seem like they involve discretion, they are not “discretionary”decisions.APA, 8 and 28 USC, INA, and CFR5 USC § 704. Actions reviewableAgency action made reviewable by statute and final agency action for which thereis no other adequate remedy in a court are subject to judicial review. Apreliminary, procedural, or intermediate agency action or ruling not directlyreviewable is subject to review on the review of the final agency action. Except asotherwise expressly required by statute, agency action otherwise final is final forthe purposes of this section whether or not there has been presented or determinedan application for a declaratory order, for any form of reconsideration, or, unlessthe agency otherwise requires by rule and provides that the action meanwhile isinoperative, for an appeal to superior agency authority. 4 USC Claim Exhaustion and Review 8/9/11
  5. 5. USCIS Regulations Pertaining to N-600/600K Denials8 CFR § 341.6 Denial of application. 8 CFR § 320.5 What happens if the application is approved or denied byIf it is the decision of the district director the Service?to deny the application for a Certificate ofCitizenship, the applicant shall be (b) Denial of application. If the decisionfurnished the reasons for denial and of the district director is to deny theadvised of the right to appeal in application for a certificate of citizenshipaccordance with the provisions of 8 CFR under this section, the applicant shall be103.3(a). After an application for a furnished with the reasons for denial andCertifcate of Citizenship has been denied advised of the right to appeal inand the appeal time has run, a second accordance with the provisions of 8 CFRapplication submitted by the same 103.3(a). An applicant may file an appealindividual shall be rejected and the on Form I–290B, Notice of Appeal to theapplicant instructed to submit a motion Administrative Appeals Unit (AAU), withfor reopening or reconsideration in the required fee prescribed inaccordance with 8 CFR 103.5. The §103.7(b)(1) of this chapter, inmotion shall be accompanied by the accordance with the instructions thereinrejected application and the fee specified and with any supporting documentationin 8 CFR 103.7 reduced by the amount of addressing the reasons for denial. To bethe fee paid with the rejected application. timely, an appeal must be filed within 30A decision shall be issued with days of service of the decision. After annotification of appeal rights in all application for a certificate of citizenshipCertificate of Citizenship cases, including has been denied and the time for appealany case denied due to the applicants has expired, a second applicationfailure to prosecute the application. submitted by the same individual shall be rejected and the applicant will be[50 FR 39649, Sept. 30, 1985] instructed to submit a motion for reopening or reconsideration in accordance with 8 CFR 103.5. The motion shall be accompanied by the rejected application and the fee specified in 8 CFR 103.7. A decision shall be issued with notification of appeal rights in all certificate of citizenship cases, including any case denied due to the applicants failure to prosecute the application. [66 FR 32144, June 13, 2001] 5 USC Claim Exhaustion and Review 8/9/11
  6. 6. Two Paths to Judicial Review of Citizenship Claims USCIS Certificate of EOIR or ICE Administrative Citizenship Denials Orders of Removal[NOTE: Should be an AAO Dismissal BIA Dismissal of an Appeal of an IJof a Dismissal or Motion; or Order of Removal and anyAffirmance of a Certified Denial, subsequent Motions; ICE or CBPBUT a Director’s Denial Decision may Reinstatement of EOIR Order ofend up being considered the Final Removal if ripe; and ICEAgency Decisions via mishandling.] Administrative Order of RemovalINA § 360 [8 USC § 1503] Denial of INA § 242 [8 USC § 1252] Judicialrights and privileges as national review of orders of removal(a) Proceedings for declaration of (b) Requirements for review of orders ofUnited States nationality removalIf any person who is within the United With respect to review of an order ofStates claims a right or privilege as a removal under subsection (a)(1) of thisnational of the United States and is section, the following requirementsdenied such right or privilege by any apply:department or independent agency, orofficial thereof, upon the ground that he (5) Treatment of nationality claimsis not a national of the United States,such person may institute an action (A) Court determination if no issue ofunder the provisions of section 2201 of facttitle 28 against the head of suchdepartment or independent agency for a If the petitioner claims to be a nationaljudgment declaring him to be a national of the United States and the court ofof the United States, appeals finds from the pleadings and affidavits that no genuine issue ofexcept that no such action may be material fact about the petitionersinstituted in any case if the issue of such nationality is presented, the court shallpersons status as a national of the decide the nationality claim.United States (B) Transfer if issue of fact (1) arose by reason of, or in connection with any removal If the petitioner claims to be a national proceeding under the provisions of the United States and the court of of this chapter or any other act, or appeals finds that a genuine issue of 6 USC Claim Exhaustion and Review 8/9/11
  7. 7. material fact about the petitioners (2) is in issue in any such removal nationality is presented, the court shall proceeding. transfer the proceeding to the district court of the United States for theAn action under this subsection may judicial district in which thebe instituted only within five years petitioner resides for a new hearing onafter the final administrative denial of the nationality claim and a decision onsuch right or privilege and shall be filed that claim as if an action had beenin the district court of the United States brought in the district court underfor the district in which such person section 2201 of title 28.resides or claims a residence, andjurisdiction over such officials in such (C) Limitation on determinationcases is conferred upon those courts. The petitioner may have such nationality claim decided only as provided in this paragraph. TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE PART VI--PARTICULAR PROCEEDINGS CHAPTER 151--DECLARATORY JUDGMENTS COMMONLY CALLED THE “DECLARATORY JUDGMENTS ACT”§ 2201. Creation of remedy (a) In a case of actual controversy within its jurisdiction, except with respectto Federal taxes other than actions brought under section 7428 of the InternalRevenue Code of 1986, a proceeding under section 505 or 1146 of title 11, or inany civil action involving an antidumping or countervailing duty proceedingregarding a class or kind of merchandise of a free trade area country (as defined insection 516A(f)(10) of the Tariff Act of 1930), as determined by theadministering authority, any court of the United States, upon the filing of anappropriate pleading, may declare the rights and other legal relations of anyinterested party seeking such declaration, whether or not further relief is orcould be sought. Any such declaration shall have the force and effect of a finaljudgment or decree and shall be reviewable as such. 7 USC Claim Exhaustion and Review 8/9/11