Citizenship Claims by Arriving Travelers to the United States: Procedures?INA § 103 [8 USC § 1103] [The INA was substantia...
(2) The Attorney General shall consult with the Secretary of Homeland Security in       making determinations concerning t...
INA § 104 [8 USC § 1104] Powers and Duties of the Secretary of State       (a) Powers and duties         The Secretary of ...
INA § 212 [Secretary of Homeland Security substituted for Attorney General]       (d) (5) (A) The [Secretary of Homeland S...
Proceedings who first brings up the possibility of a claim to U.S. citizenship after reaching theI.J. The claim could also...
citizenship claim case in the first instance when there is disagreement between an IJ and ICECounsel? Is it properly a mat...
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Citizenship claims by arriving travelers to the united states 04 25-2011

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Procedural changes can be implemented easily and quickly as to citizenship claims of arriving travelers.

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Citizenship claims by arriving travelers to the united states 04 25-2011

  1. 1. Citizenship Claims by Arriving Travelers to the United States: Procedures?INA § 103 [8 USC § 1103] [The INA was substantially altered by the Homeland Security Act(HSA) 2000, and the functions of the former INS under the authority of the Attorney Generalwere transferred to the Secretary of Homeland Security. EOIR was kept 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. ***** (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. (h) Office of Special Investigations (1) The Attorney General shall establish within the Criminal Division of the Department of Justice an Office of Special Investigations with the authority to detect and investigate, and, where appropriate, to take legal action to denaturalize any alien described in section 1182(a)(3)(E) of this title.Need for Specific Changes in DHS and DOJ Procedures-Citizenship Claims Page 1
  2. 2. (2) The Attorney General shall consult with the Secretary of Homeland Security in making determinations concerning the criminal prosecution or extradition of aliens described in section 1182(a)(3)(E) of this title. (3) In determining the appropriate legal action to take against an alien described in section 1182(a)(3)(E) of this title, consideration shall be given to-- (A) the availability of criminal prosecution under the laws of the United States for any conduct that may form the basis for removal and denaturalization; or (B) the availability of extradition of the alien to a foreign jurisdiction that is prepared to undertake a prosecution for such conduct.Further amendments have been made since then and paragraphs (g) and (h) have been addedspecifically addressing the remaining authority of the A.G. under the INA and further addedprovisions relating to the Executive Office for Immigration Review in § 521 of USC Title 6,Domestic Security but it is merely a cross-reference. However, the next section, 6 USC § 522could be construed as a well hidden and overlooked codification by Congress of ChevronDeference, at least as it pertains to the INA [8 USC]. TITLE 6--DOMESTIC SECURITY CHAPTER 1--HOMELAND SECURITY ORGANIZATION SUBCHAPTER XI--DEPARTMENT OF JUSTICE DIVISIONS Part A--Executive Office for Immigration Review6 USC § 521 Legal status of EOIR (a) 1 Existence of EOIR --------------------------------------------------------------------------- 1 So in original. No subsec. (b) has been enacted. --------------------------------------------------------------------------- There is in the Department of Justice the Executive Office for Immigration Review, which shall be subject to the direction and regulation of the Attorney General under section 1103(g) of title 8. [INA § 103(g)] (Pub. L. 107-296, title XI, Sec. 1101, Nov. 25, 2002, 116 Stat. 2273.)6 USC § 522 Statutory construction Nothing in this chapter, any amendment made by this chapter, or in section 1103 of title 8, shall be construed to limit judicial deference to regulations, adjudications, interpretations, orders, decisions, judgments, or any other actions of the Secretary of Homeland Security or the Attorney General. (Pub. L. 107-296, title XI, Sec. 1103, Nov. 25, 2002, 116 Stat. 2274.)Need for Specific Changes in DHS and DOJ Procedures-Citizenship Claims Page 2
  3. 3. INA § 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 Homeland Security has delegated matters pertaining to determinations of U.S.citizenship and applications for naturalization to USCIS via Department of Homeland SecurityDelegation Memos 0150 and 0150.1, Delegation to the Bureau of Citizenship and ImmigrationServices [now USCIS].8 CFR § 235.2 Parole for deferred inspection. (a) A district director may, in his or her discretion, defer the inspection of any vessel or aircraft, or of any alien, to another Service office or port-of-entry. Any alien coming to a United States port from a foreign port, from an outlying possession of the United States, from Guam, Puerto Rico, or the Virgin Islands of the United States, or from another port of the United States at which examination under this part was deferred, shall be regarded as an applicant for admission at that onward port. (b) An examining immigration officer may defer further examination and refer the aliens case to the district director having jurisdiction over the place where the alien is seeking admission, or over the place of the aliens residence or destination in the United States, if the examining immigration officer has reason to believe that the alien can overcome a finding of inadmissibility by: (1) Posting a bond under section 213 of the Act; (2) Seeking and obtaining a waiver under section 211 or 212(d)(3) or (4) of the Act; or (3) Presenting additional evidence of admissibility not available at the time and place of the initial examination. (c) Such deferral shall be accomplished pursuant to the provisions of section 212(d)(5) of the Act for the period of time necessary to complete the deferred inspection. (d) Refusal of a district director to authorize admission under section 213 of the Act, or to grant an application for the benefits of section 211 or section 212(d) (3) or (4) of the Act, shall be without prejudice to the renewal of such application or the authorizing of such admission by the immigration judge without additional fee.Need for Specific Changes in DHS and DOJ Procedures-Citizenship Claims Page 3
  4. 4. INA § 212 [Secretary of Homeland Security substituted for Attorney General] (d) (5) (A) The [Secretary of Homeland Security] may, except as provided in subparagraph (B) or in section 214(f) , in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the [Secretary of Homeland Security], have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.Working within the existing regulatory and statutory framework, an arriving traveler who assertsa claim to United States Citizenship by an action of law should be deferred by CBP to theappropriate USCIS Field Office to file an N-600, Application for Certificate of Citizenship.Ideally, an individual should have handled this issue prior to departing for the U.S. via theadjudication of a Form FS-240, Consular Report of Birth Abroad, for a minor or a DS-11,Passport Application, for an adult (age 18 or older), by a Consular Officer abroad.The adjudications of an N-600 can be protracted because documentary evidence may not bereadily available. Indeed, this may be why the individual could not make the citizenship claim toa Consular Officer abroad. Depending on the particular situation, it may be necessary for theclaimant to seek old census records; marriage, birth and death records; court records; SocialSecurity or IRS records; military personnel records; perhaps even old INS records. If theclaimant must further seek non-governmental records such as school, church, hospital orprivately held medical or legal documentation (employment (private company’s) records, bankrecords, physicians’ or lawyer’s case files etc…) it may take a rather long time to conclude thecase. In addition, testimony may be required of persons not currently in the United States. Theworking relationship between DHS and DOS and existing procedures already allows for foreignbased testimony to be secured by either a Consular or DHS Officer stationed abroad andtransmitted to a domestic office.If records and testimony need to be obtained in order to support the citizenship claim, USCISmay continue the period of deferral for such time as is required to accomplish the purposepursuant to 8 CFR § 235.2 (c) and INA § 212(d)(5)(A) to include any administrative appeal andjudicial review(s) until a final decision is reached on the matter of the claim to citizenship.In conclusion, it is inappropriate for CBP to refer an arriving traveler who is making a claim toU.S. citizenship to an I.J. via any Expedited Removal process. However, there may be instanceswhen CBP refers someone to an I.J. via § 235 Expedited Removal or § 240 RemovalNeed for Specific Changes in DHS and DOJ Procedures-Citizenship Claims Page 4
  5. 5. Proceedings who first brings up the possibility of a claim to U.S. citizenship after reaching theI.J. The claim could also first arise if the presumed alien has been handed over to ICE from CBPat a POE or, by another law enforcement agency within the U.S. or, when first encountered byICE itself. ICE has procedures when the citizenship claim arises in its purview, CBP it seems,needs to refine its approach in order to coordinate with USCIS better. ICE could play a majorrole in terms of escorting an arriving citizenship claimant from a POE to USCIS and could usethe means at its disposal to assure that an arriving claimant did not abscond into the countryrather than report to USCIS. ICE has electronic monitoring and tracking capability at theirdisposal if such measures are deemed necessary. In the alternative, ICE could be that person’sfirst “host” by providing accommodations in the U.S., if that person arrives indigent.If the arriving person first asserts a citizenship claim directly to an I.J., what is the I.J supposedto do? Further consultation between the Departments of Justice and Homeland Security arerequired in order to determine the proper course of actions in this scenario.Matter of Lujan, 25 I&N Dec. 53 (BIA 2009) Decided by the Board July 20, 2009: “The Board of Immigration Appeals lacks jurisdiction to review an appeal by the Department of Homeland Security of an Immigration Judge’s decision to vacate an expedited removal order after a claimed status review hearing pursuant to 8 C.F.R. § 1235.3(b)(5)(iv) (2009), at which the Immigration Judge determined the respondent to be a United States citizen.” “…without an explicit grant of appellate jurisdiction in an otherwise carefully constructed regulatory and statutory process, we cannot assume appellate jurisdiction…..”Original Jurisdiction in Citizenship Claims v. Ultimate Legal Interpretation AuthorityThe IJ as a representative of the A.G. is not the designee within the INA to make the initialdetermination of USC inside the United States, the Secretary of Homeland Security throughUSCIS is the official with delegated statutory authority.1 However, in matters of legalinterpretation, the A.G. is the final arbiter to whom the Secretary must defer. INA § 103(a)(1) [8USC 1103(a)(1)]. The BIA can exercise this legal interpretation authority on behalf of the A.G.AAO can exercise the Secretary’s authority2 in citizenship claim cases. The AAO/Secretary, inconsultation with the EOIR/BIA/A.G., can also publish Precedent Decisions within its areas ofexpertise (see 8 CFR § 130.3(c)). Who deserves the right to consider the facts of the particular1 Even the State Department should not be issuing Passports to derivative citizens that are resident inside the U.S.,but that is a whole other debate.2 Department of Homeland Security Delegation Memos 0150 and 0150.1, Delegation to the Bureau of Citizenshipand Immigration Services [now USCIS].Need for Specific Changes in DHS and DOJ Procedures-Citizenship Claims Page 5
  6. 6. citizenship claim case in the first instance when there is disagreement between an IJ and ICECounsel? Is it properly a matter for the AAO or should it go to the BIA?At this point, the water gets even muddier.Perhaps the BIA disagrees with the IJ determination and then the claimant fights the RemovalOrder in a Petition for Review in a Circuit Court of Appeals. DHS can dispute the claim to USC,but if the Circuit Court finds that questions of material facts exist, it then transfers the case toDistrict Court. Again it falls to DHS to fight in court as it should be.However, if the BIA agrees with the IJ what should it do? On the one hand, the BIA isostensibly speaking for the A.G. and the Secretary is supposed to defer to that determination inmatters of legal interpretation. On the other hand, this particular determination is supposed to bemade by the Secretary in the first instance according to the INA.  Should such a case be decided through direct consultation between the BIA and AAO?  Should the case be held in abeyance by the BIA and referred to the AAO?  Should the matter be forwarded (certified or referred) directly to the A.G in order to settle the dispute between DHS and EOIR?  Should the proceedings be remanded back to the IJ with instructions to suspend proceedings and the claimant be directed to file an N-600 with USCIS (the IJ can grant a fee waiver if need be and USCIS will honor it as it does for any other application for relief directed to be filed with USCIS by an IJ’s order)?  Should the IJ have suspended, terminated without prejudice, or administratively closed the Removal Proceeding and directed the claimant to file an N-600 without deciding the final merits and thus have avoided allowing the case to be appealed to the BIA in the first place?  What is ICE Counsel’s role? To Join a Motion? To authorize parole? Can ICE detain the individual whose status is uncertain by virtue of a dispute between ICE and the IJ?  Should CBP have contacted USCIS rather than sending the case to Immigration Court?  Should CBP have paroled the individual to appear at a USCIS Office in the same manner as a deferred inspection used to be handled under INS?Joint DOJ-DHS Rulemaking is needed in this area along with internalprocedural refinements within EACH Component of EACH Departmentinvolved in the matters discussed above.Need for Specific Changes in DHS and DOJ Procedures-Citizenship Claims Page 6

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