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Citizenship claims primer 6-7-11 jw


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  • 1. A Primer on Claims to U.S. Citizenship I. Who does what under U.S. immigration and nationality laws1?The primary statutory authority in the Immigration and Nationality Act (INA) is divided amongthree cabinet level positions. The Secretary of State, the Secretary of the Homeland Security, andthe Attorney General. Also, U.S. District Courts and Circuit Courts of Appeal have specificreview authority. Of course the U.S. Supreme Court retains ultimate review authority over allmatters pertaining to the validity and interpretation of U.S. federal laws and, in some respects,State laws.II. The Secretary of Homeland SecurityThe Secretary of the of Homeland Security is in charge of the Department of Homeland Security(DHS). DHS has three primary Immigration Agencies.U.S. Customs and Border Protection (CBP) works primarily at the U.S. borders including land,sea and air ports-of-entry (POEs). It enforces customs and immigration laws at the border andwithin close proximity to the border including international airports. CBP often can just turn aperson who is inadmissible around and send them back but can also institute Expedited Removaland issue or re-instate an administrative removal order without placing the alien before an IJ.Making a claim to U.S. Citizenship halts Expedited Removal and the person must go before anIJ. CBP may then turn an alien over to ICE for detention.U.S. Immigration and Customs Enforcement (ICE) arrests and detains customs and immigrationviolators. As most often pertains to aliens, ICE arrests and detains on civil immigrationviolations and may further detain aliens picked up on criminal grounds in the interior of theUnited States. ICE oversees immigrant detention centers and places many individuals intoproceedings before an Immigration Court. It is always preferable for ICE to fully explore anyclaim to U.S. Citizenship before placing someone into Removal Proceedings, but that doesntalways happen. Then things just get more complicated for everyone.U.S. Citizenship and Immigration Services (USCIS) determines eligibility for the majority ofbenefits under the INA. By delegation, USCIS has sole primary authority to determine thenationality of a person present within the United States through an N-600 or N-600K, applicationfor a certificate of citizenship or through adjudication of form N-400 application fornaturalization.The DHS Secretary has delegated to USCIS her limited authority to perform certain expeditednaturalizations of a child (N-600/N-600K residing with a citizen parent, usually on governmentorders, including military, outside the U.S as well as within the U.S.). The DHS Secretary alsohas limited N-400 naturalization authority for military applicants and certain dependents ofUSCs stationed abroad. A Primer on Claims to U.S. Citizenship by Joseph P. Whalen (non-attorney) November 2010 1
  • 2. In general, when a person who was born outside of the United States of America believes that(s)he is a United States Citizen, either by birth or through an action of law after time of birth, dueto the actions of their parents, that person, or a parent or legal guardian if the applicant is aminor, may file a form N-600, Application for Certificate of Citizenship with USCIS. If USCISdenies that application, the decision may be appealed to the AAO. If the AAO upholds the denial(dismisses the appeal), then further legal action may be brought in federal court. See Appeal andRelated Rights in sections V, VII, VIII, and IX, below, for further details.CBP, ICE and USCIS each have the authority to issue a Notice to Appear (NTA) which placesan alien into Removal Proceedings in Immigration Court.III. The Attorney GeneralThe Attorney General (A.G.) is the Head of the Department of Justice (DOJ). DOJ has manybranches and sub-divisions, two of those offices deal exclusively with immigration matters.They are EOIR and OIL.The Executive Office of Immigration Review (EOIR) is the lead administrative appellate bodyfor many immigration law matters. The primary mission of EOIR is to adjudicate immigrationcases by fairly, expeditiously, and uniformly interpreting and administering the Nation’simmigration laws. Under delegated authority from the A.G., EOIR conducts immigration courtproceedings, appellate reviews, and administrative hearings. Immigration Courts are set uparound the U.S. They are presided over by Immigration Judges (IJs). An IJ can issue aRemoval Order or grant relief from removal. An IJ order is appealable to the Board ofImmigration Appeals (BIA). The BIA can uphold a removal order, overturn a removal order andorder relief or remand a case back to the IJ with instructions and/or to make a new decisionaltogether.Certain immigration benefits decisions by USCIS are also appealable to the BIA (most notably:the I-130, Immigrant Petition for Alien Relative). Certain decisions that the BIA designates asPrecedent Decisions apply to immigration cases nationwide across agencies. USCISsadministrative appellate body, the Administrative Appeals Office (AAO) may submit some of itsdecisions to the A.G. for inclusion as Precedent Decisions as well. Once published by DOJ,AAO Precedent Decisions bind all DHS personnel in the administration of the immigrationlaws.DOJ publishes precedent decisions in the bound volumes of the "Administrative DecisionsUnder Immigration and Nationality Laws of the United States" (I&N Dec.), which collectivelycontain the Precedent Decisions of the BIA, AAO, A.G., and predecessor officials. The BIA isthe highest administrative tribunal for interpreting and applying U.S. immigration law becausethe A.G. is the highest legal authority within the Executive Branch to interpret the laws whichthat branch must enforce.In regard to administration of the INA, the A.G., through the IJs and BIA, primarily deals withalien Removal Proceedings and has no authority to determine U.S. Citizenship even when A Primer on Claims to U.S. Citizenship by Joseph P. Whalen (non-attorney) November 2010 2
  • 3. dismissing Removal Proceedings based on a claim to U.S. Citizenship. The IJ or BIA decisionto dismiss a case due to the probability that the person in proceedings may be a U.S.Citizen is a prima facie finding to be developed through an N-600, Application for Certificateof Citizenship filed with USCIS. Such Immigration Court cases are routinely dismissed withoutprejudice to reinstating them later after an N-600 gets denied.Office of the Chief Administrative Hearing OfficerEOIR also houses the Office of the Chief Administrative Hearing Officer (OCAHO) is headedby a Chief Administrative Hearing Officer who is responsible for the general supervision andmanagement of Administrative Law Judges who preside at hearings which are mandated byprovisions of law enacted in the Immigration Reform and Control Act of 1986 (IRCA (PDF))and the Immigration Act of 1990 (PDF). These acts, among others, amended the Immigrationand Nationality Act of 1952 ( INA).Administrative Law Judges hear cases and adjudicate issues arising under the provisions of theINA relating to (1) knowingly hiring, recruiting, or referring for a fee or the continuedemployment of unauthorized aliens, and failure to comply with employment verificationrequirements in violation of section 274A of the INA (employer sanctions); (2) immigration-related unfair employment practices in violation of section 274B of the INA; (3) immigration-related document fraud in violation of 274C of the INA; and (4) failure to comply with theinformation dissemination provisions for international match making organizations in violationof 8 U.S.C. 1375a. Complaints are brought by the Department of Homeland Security, the Officeof Special Counsel for Immigration-Related Unfair Employment Practices in the Department ofJustice, or private individuals as prescribed by statute.Hearings are conducted under applicable laws and regulations, as well as the generalrequirements of the Administrative Procedure Act. Employer sanctions and document fraudcases are subject to administrative review by the Chief Administrative Hearing Officer. All finalagency decisions are subject to review in federal courts.The DOJ Civil Divisions Office of Immigration Litigation (OIL) has approximately 310attorneys and 100 support staff. Attorneys and Non-Attorneys are divided into two sections:OIL-Appellate and the District Court Section. OIL has jurisdiction over all civil immigrationlitigation, and is responsible for the nationwide coordination of immigration matters before thefederal district courts and circuit courts of appeals. OIL has both affirmative and defensivelitigation responsibilities, and its attorneys work closely with United States Attorneys offices onimmigration cases. U.S. Attorneys offices may deal with criminal immigration violations such asillegally re-entering the U.S. after deportation/removal, as well as immigration fraud schemesand individual fraud cases, including procuring naturalization by fraud.IV. The Secretary of StateThe Secretary of State is the Head of the U.S. Department of State (DOS) or State Department.DOS has been delegated the vast majority of statutory authority to determine a persons A Primer on Claims to U.S. Citizenship by Joseph P. Whalen (non-attorney) November 2010 3
  • 4. nationality for persons outside the U.S. The DOS works through the Bureau of Consular Affairs(CA), including the Passport Agency, and U.S. Embassies and Consulates located in foreigncountries.For a child who is under 18, and outside the United States, a Department of State (DOS) formFS-240, Consular Report of Birth Abroad of a Citizen of the United States may be issued uponapplication with sufficient proof. That Consular Report is only issued outside the United Statesbut a fully valid abstract may be requested as a replacement from within the United States. Suchreports, it appears, are only issued when the claim involves a claim at time of birth. DerivativeCitizenship claims may be entertained via an application for a passport or registration.This DOS issued original or replacement Consular Report is equally conclusive proof ofcitizenship as a Certificate of Citizenship issued by USCIS.The major advantage in having a certificate issued by USCIS instead of, or in addition to, theDOS FS-240, or merely a passport is in providing a mechanism for the persons status to beupdated in the U.S. Immigration Computer Databases. The computer is accessed by DOS andDHS employees worldwide especially, CBP Agents at the border and ICE Agents in interiorenforcement actions.This will make travel easier and will prevent one from being placed in Removal Proceedings ifthey get arrested in the U.S. The DHS database interfaces with certain other governmentalcomputers and enables ones eligibility for certain rights or benefits to be more readilydetermined by others. E-verify is used by many U.S. employers to check ones legal workauthorization. Social Security may be able to tell if one is eligible for retirement, disability orSSI benefits. Local governments make check the SAVE program to find out if one is eligible forwelfare, food stamps, or certain federally subsidized, but State-administered, medical benefits. INA Sec. 104. [8 U.S.C. 1104] POWERS AND DUTIES OF THE SECRETARY OF STATE (a) The Secretary of State shall be charged with the administration and the enforcement of the provisions of this Act 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 may issue a passport to a person based on a citizenship claim within oroutside the U.S. only because a passport is only prima facie evidence of citizenship, meaning thatit is only the establishment of a "legally rebuttable presumption". The passport is merely a TravelDocument and is not conclusive proof of citizenship in the way that the DOS Consular Report orUSCIS Certificate is. Those certificates require hard evidence and more careful consideration inorder to be issued. The adjudication of a passport is intentionally more lenient especially, when A Primer on Claims to U.S. Citizenship by Joseph P. Whalen (non-attorney) November 2010 4
  • 5. issued overseas because of its internationally recognized primary function to facilitate foreigntravel. A passport can be restricted and has an expiration date but neither the USCIS certificatenor the DOS report ever expires and has no restrictions. A passport may be denied to a citizen,whether by birth or naturalization, not to declare the person not to be a citizen, but rather, toprevent international travel. A vast collection of citizens are routinely denied passport. Theyinclude, but are not limited to, certain felons, suspected or known terrorists, suspected or knowndrug traffickers, suspected or known human smugglers, suspected or known insurgents, personswho are subjects of wants, warrants or extradition orders, or even people who have gottenemergency loans from the government while previously abroad and never paid it back. Historical Perspective on the Evidentiary Value of the Passport Executive Order 610 by President of the United States Amending Instructions to Diplomatic Officers and Consular Regulations Relating to Expatriation, Citizenship, Naturalization, and Passports Signed by President Theodore Roosevelt April 6, 1907It is hereby ordered that the instructions to the diplomatic officers of the United States and theregulations prescribed for the use of the consular service of the United States be amended in thefollowing particulars, the numbers of the paragraphs amended being the same in both theinstructions and the regulations...................Paragraph 153 shall read as follows:Old Passport in Lieu of Naturalization Certificate.—An American citizen who is abroad andwho holds a passport which has expired after renewal may apply through a diplomatic officer ora consular officer for a new passport, and the old passport will be accepted as prima facieevidence that the citizenship of the applicant was properly proved when the old passport wasgranted, and a naturalized citizen need not, therefore, be required to produce again the certificateof naturalization through which he acquired his citizenship. The old passport should be retainedand sent to the Department of State with the application. If there is any doubt surrounding thecase, however, the applicant should be required to produce the same evidence that would berequired of him if he were making his first application for a passport. [emphasis added] TESTIMONY OF THE UNITED STATES DEPARTMENT OF JUSTICE --- MARK S. ZUCKERMAN, ASSISTANT UNITED STATES ATTORNEY FOR THE DISTRICT OF NEW HAMPSHIRE PASSPORT FRAUD --- BEFORE THE UNITED STATES SENTENCING COMMISSION --- A Primer on Claims to U.S. Citizenship by Joseph P. Whalen (non-attorney) November 2010 5
  • 6. March 17, 2004".........As prima facie evidence of United States citizenship, a passport can also enable its holderto vote in United States elections, obtain military and other employment, own and purchasefirearms, receive federal benefits and bypass supervision by the Bureau of Immigration andCustoms Enforcement. These national security implications distinguish passport crimes fromother forms of identity fraud and require a stronger prosecutorial response. ......"22 USC § 2705 TITLE 22--FOREIGN RELATIONS AND INTERCOURSE CHAPTER 38--DEPARTMENT OF STATESec. 2705. Documentation of citizenship The following documents shall have the same force and effect as proof of United Statescitizenship as certificates of naturalization or of citizenship issued by the [Secretary of HomelandSecurity] Attorney General or by a court having naturalization jurisdiction: (1) A passport, during its period of validity (if such period is the maximum periodauthorized by law), issued by the Secretary of State to a citizen of the United States. (2) The report, designated as a ``Report of Birth Abroad of a Citizen of the United States,issued by a consular officer to document a citizen born abroad. For purposes of this paragraph,the term ``consular officer includes any United States citizen employee of the Department ofState who is designated by the Secretary of State to adjudicate nationality abroad pursuant tosuch regulations as the Secretary may prescribe.The BIA and courts have noted that the validity of a United States passport can be directlyattacked only under the authority and procedures set forth at 22 CFR .......22 CFR 51.62 Revocation or limitation of passports.(a) The Department may revoke or limit a passport when (1) The bearer of the passport may be denied a passport under 22 CFR 51.60 or 51.61; or 51.28; or any other provision contained in this part; or, (2) The passport has been obtained illegally, fraudulently or erroneously; was createdthrough illegality or fraud practiced upon the Department; or has been fraudulently altered ormisused; A Primer on Claims to U.S. Citizenship by Joseph P. Whalen (non-attorney) November 2010 6
  • 7. (b) The Department may revoke a passport when the Department has determined that thebearer of the passport is not a U.S. national, or the Department is on notice that the bearerscertificate of citizenship or certificate of naturalization has been canceled.Because of the authority to place restrictions on, or revoke a U.S. Passport, and the Secretary ofStates lack of legal authority to make original determinations of nationality/citizenship forpersons present in the U.S., compounded by the erroneous issuance of numerous U.S. Passports,USCIS has directed its Officers to hold adjudication of N-600s when presented with a case thatinvolves an apparently, erroneously issued passport.Excerpt from an AAO Decision dated May 04, 2010, regarding an Application forCertificate of Citizenship under Section 320 of the Immigration and Nationality Act [8U.S.C. 1431]. "The AAO notes further that the record contains a copy of the applicants U.S. passport. In Matter of Villanueva, 19 I&N Dec. 101 (BIA 1984) the Board of Immigration Appeals (Board) held that a valid U.S. passport is conclusive proof of U.S. citizenship. Specifically, the Board held in Matter of Villanueva that: unless void on its face, a valid United States passport issued to an individual as a citizen of the United States is not subject to collateral attack in administrative immigration proceedings but constitutes conclusive proof of such persons United States citizenship. A certificate of citizenship cannot be issued to the applicant where, as here, there are serious discrepancies between U.S. Citizenship and Immigration Services (USCIS) information and passport records. The USCIS Adjudicators Field Manual at § 71 .l(e) instructs that: An unexpired United States passport issued for 5 or 10 years is now considered prima facie evidence of U.S. citizenship. Because it does not provide the actual basis upon which citizenship was acquired or derived, the submission of additional documentation may be required or the passport file may be requested. If after review there are differences or discrepancies between the USCIS information and the Passport Office records which would indicate that the application should not be approved, no action should be taken until the Passport Office has an opportunity to review and decide whether to revoke the passport. The matter must therefore be remanded to the director to request that the Passport Office review and decide whether to revoke the applicants passport. The director shall issue a new decision once the Passport Offices review is completed and, if adverse to the applicant, certify the decision to the AAO for review." A Primer on Claims to U.S. Citizenship by Joseph P. Whalen (non-attorney) November 2010 7
  • 8. Above from:Administrative Decisions from the USCIS Administrative Appeals OfficeE2 - Applications for Certification of CitizenshipDecisions_Issued_in_2010May042010_02E2309.pdfV. Appeal Rights pertaining to U.S. Nationality/Citizenship Claims through form N-600.Following the denial of a form N-600, Application for Certificate of Citizenship you have theright to appeal the decision.If you disagree with the N-600 Denial decision you may file an appeal on Form I-290B, withfee, and with any additional evidence to be considered and/or a brief identifying specifically anyerroneous conclusion of law or statement of fact along with legal references and/or specifyingthe evidence that you believe was misinterpreted with an explanation of the facts and evidence asyou interpret them.An apeal to the AAO, on form I-290B, must be filed with the office that made thedecision within 30 days of the date of the Denial Notice, 33 days if received by mail.If an appeal is not filed within the time allowed, a new N-600 may not be filed, see 8 CFR341.6. Instead, if at a later date you wish to pursue this citizenship claim anew, you may file,pursuant to 8 CFR 341.6, a form I-290B, with the current fee as of the date of that filing, for: 1.) a late Motion to Reopen with additional evidence and/or, 2.) a late Motion to Reconsider along with a brief identifying specifically any erroneous conclusion of law or statement of fact, along with legal references, and/or identifying the evidence that you believe was misinterpreted with an explanation of the facts as you interpret them.You must exhaust the administrative appeal process afforded under the law by first appealingto the AAO (USCIS Administrative Appeals Office) before you may seek judicial review of theagency decision in the case2, which would be to file a lawsuit in a U.S. District Court under INA§ 360(a) [8 U.S.C. § 1503(a)] and pursuant to 28 U.S.C. § 2201.The existence of concurrent Removal Proceedings would preclude U.S. District Courtjudicial review under this section and restrict review to a Petition for Review in a U.S.Circuit Court of Appeals of any Removal Order following a BIA Dismissal of a RemovalOrder under 8 USC § 1252(b) [INA § 242(b)]. A Primer on Claims to U.S. Citizenship by Joseph P. Whalen (non-attorney) November 2010 8
  • 9. VI. Denial or Cancellation of a U.S. Passport by the Secretary of State Based on a Claim toCitizenship of a Person Born Abroad--Application Made While in the United States- NoAdministrative AppealU.S. Department of State Foreign Affairs Manual Volume 7 – Consular Affairs7 FAM 1311b. What is a Passport?A U.S. passport is a travel document issued under the authority of the Secretary of State attestingto the identity and nationality of the bearer. 8 U.S.C. 1101(a)(30) defines a passport as “anytravel document issued by competent authority showing the bearer’s origin, identity, andnationality if any, which is valid for the admission of the bearer into a foreign country.”**********d. The U.S. passport: (1) Identifies the bearer as a U.S. citizen or non-citizen national; is valid for travel to foreign countries and return to the United States; (2) Requests a foreign government to permit travel or temporary residence in that country and access to all lawful local aid and protection; and (3) Is evidence of the bearer’s eligibility to receive the protection and assistance of U.S. diplomatic and consular offices while overseas.e. Who Has Authority to Issue Passports?Only the Secretary of State has the authority to issue passports. The Secretary accomplishes thisfunction through the Bureau of Consular Affairs (CA) and U.S. embassies and consulatesabroad.7 FAM 1313a. Citizenship/Nationality and Identity of Applicant Vital: U.S. citizens and U.S. non-citizennationals who have satisfactorily established their identity and citizenship/nationality and do notfall within a statutory or regulatory basis for denial (see 7 FAM 1380 Passport Denial,Revocation, Limitation, Restriction and Surrender) are entitled to U.S. passports.7 FAM 1380 is UNAVAILABLE A Primer on Claims to U.S. Citizenship by Joseph P. Whalen (non-attorney) November 2010 9
  • 10. 22 CFR 51.65 Notification of denial or revocation of passport. (a) The Department will notify in writing any person whose application for issuance of a passport has been denied, or whose passport has been revoked. The notification will set forth the specific reasons for the denial or revocation, and, if applicable, the procedures for review available under 22 CFR 51.70 through 51.74 . (b) An application for a passport will be denied or treated as abandoned if an applicant fails to meet his or her burden of proof under 22 CFR 51.23(a) and 51.40 or otherwise does not provide documentation sufficient to establish entitlement to passport issuance within ninety days of notification by the Department that additional information from the applicant is required. Thereafter, if an applicant wishes to pursue a claim of entitlement to passport issuance, he or she must submit a new application and supporting documents, photographs, and statements in support of the application, along with applicable application and execution fees.22 CFR 51.70 Request for hearing to review certain denials and revocations. (a) A person whose passport has been denied or revoked under 22 CFR 51.60(b)(1) through (10), 51.60(c) , 51.60(d) , 51.61(b) , 51.62(a)(1) where the basis for the adverse action would entitle the applicant to a hearing under this section, or § 51.62(a)(2) may request a hearing to the Department to review the basis for the denial or revocation within 60 days of receipt of the notice of the denial or revocation. (b) The provisions of § § 51.70 through 51.74 do not apply to any action of the Department taken on an individual basis in denying, restricting, revoking, or invalidating a passport or in any other way adversely affecting the ability of a person to receive or use a passport for reasons excluded from § 51.70(a) including: (1) Non-nationality;Since there is no provision for an administrative appeal for the denial or revocation of a U.S.Passport on the basis of non-nationality, the only avenue open would be 8 U.S.C. 1503(a) [INA360(a)]. That requires filing pursuant to 28 USC 2201 and excludes individuals in RemovalProceedings. This situation might arise in the case of a person born in the United States but whohas difficulty proving it.In reality, the Secretary of State has no legal authority to make the determination of nationalityof a person in the United States. In the vast majority of cases, the Secretary of State issuespassports based on what is normally held to be conclusive proof of U.S. Citizenship. Thosedocuments are a Birth Certificate issued by a competent government authority within the UnitedStates, a Certificate of Naturalization, a Certificate of Citizenship, or a Consular Report of BirthAbroad of a Citizen of the United States of America. A Primer on Claims to U.S. Citizenship by Joseph P. Whalen (non-attorney) November 2010 10
  • 11. That authority to make a determination on an original claim to U.S. Citizenship is vested in theSecretary of Homeland Security under INA 341(a) [8 USC 1452(a)] for individuals who are, atthat time, within the United States. Only USCIS, acting for the Secretary of Homeland Security,may issue such certificates upon application and submission of sufficient proof from within theUnited States. More recent legislation has extended the Secretary of Homeland Securitysauthority to include a small number of such claims, that rely on naturalization authority, to bedetermined abroad.Appealing a negative decision on a U.S. Passport that relies on a claim to U.S. Citizenship maybe a waste of effort as the Courts would probably rule that the Secretary of State had no authorityin the matter to begin with. The Court would likely dismiss such a claim for lack of jurisdictionin the matter as it pertains to the passport. The Court would also dismiss the claim for not beingripe for judicial review in the absence of an N-600 that had been denied by a USCIS Director andthen appealed to the AAO and subsequently dismissed thus, exhausting administrative appeals.INA Sec. 341. [8 U.S.C. 1452]CERTIFICATES OF CITIZENSHIP OR U.S. NON-CITIZEN NATIONAL STATUS**;PROCEDURE(a) A person who claims to have derived United States citizenship through thenaturalization of a parent or through the naturalization or citizenship of a husband, or who is acitizen of the United States by virtue of the provisions of section 1993 of the United StatesRevised Statutes, or of section 1993 of the United States Revised Statutes, as amended by section1 of the Act of May 24, 1934 (48 Stat. 797), or who is a citizen of the United States by virtue ofthe provisions of subsection (c), (d), (e), (g), or (i) of section 201 of the Nationality Act of 1940,as amended (54 Stat. 1138; 8 U.S.C. 601), or of the Act of May 7, 1934 (48 Stat. 667), or ofparagraph (c), (d), (e), or (g) of section 301 of this title, or under the provisions of the Act ofAugust 4, 1937 (50 Stat. 558), or under the provisions of section 203 or 205 of the NationalityAct of 1940 (54 Stat. 1139; 8 U.S.C. 603, 605), or under the provisions of section 303 of thistitle, may apply to the [Secretary of Homeland Security] for a certificate of citizenship.Upon proof to the satisfaction of the [Secretary of Homeland Security] that the applicant is acitizen, and that the applicants alleged citizenship was derived as claimed, or acquired, as thecase may be, and upon taking and subscribing before [USCIS] within the United States to theoath of allegiance required by this Act of an applicant for naturalization, such individual shall befurnished by the [Secretary of Homeland Security] with a certificate of citizenship, but only ifsuch individual is at the time within the United States.(b) A person who claims to be a national, but not a citizen, of the United States may apply tothe Secretary of State for a certificate of non-citizen national status. Upon-(1) proof to the satisfaction of the Secretary of State that the applicant is a national, but not acitizen, of the United States, and ........** Proof of non-citizen national* status is furnished in the form of a specially annotated U.S.Passport that clearly states in the endorsements section that the bearer is a non-citizen national ofthe United States. A Primer on Claims to U.S. Citizenship by Joseph P. Whalen (non-attorney) November 2010 11
  • 12. *A non-citizen national is a person born in an outlying possession of the United States,specifically, American Samoa or Swains Island. It is also possible for one to be a non-citizennational born abroad.VII. The USC Claimants legal right to seek redress in the U.S. District Court.8 U.S.C. § 1503(a) [INA 360(a)]:If any person who is within the United States claims a right or privilege as a national of theUnited States and is denied such right or privilege by any department or independent agency,or official thereof, upon the ground that he is not a national of the United States*, suchperson may institute an action under the provisions of section 2201 of Title 28 against the headof such department or independent agency for a judgment declaring him to be a national of theUnited States, except that no such action may be instituted in any case if the issue of suchpersons status as a national of the United States (1) arose by reason of, or in connectionwith any removal proceeding under the provisions of this chapter or any other act, or (2) isin issue in any such removal proceeding*8 U.S.C. 1101 [INA 301](a) As used in this Act--(22) The term "national of the United States" means (A) a citizen of the United States, or (B) aperson who, though not a citizen of the United States, owes permanent allegiance to the UnitedStates.USCIS addresses citizens of the United States under this situation in the N-600 context.DOS handles the claims of both citizens and non-citizen nationals of the United States throughPassport Applications within the United States.28 U.S.C. § 2201. Creation of remedy(a) In a case of actual controversy within its jurisdiction, except with respect to Federal taxesother than actions brought under section 7428 of the Internal Revenue Code of 1986, aproceeding under section 505 or 1146 of title 11, or in any civil action involving an antidumpingor countervailing duty proceeding regarding a class or kind of merchandise of a free trade areacountry (as defined in section 516A(f)(10) of the Tariff Act of 1930), as determined by theadministering authority, any court** of the United States, upon the filing of an appropriatepleading, may declare the rights and other legal relations of any interested party seekingsuch declaration, whether or not further relief is or could be sought. Any such declaration shallhave the force and effect of a final judgment or decree and shall be reviewable as such.** Although the statute refers to "any court" these actions are brought in U.S. District Courtbecause of their statutory naturalization authority which is widely know among immigration A Primer on Claims to U.S. Citizenship by Joseph P. Whalen (non-attorney) November 2010 12
  • 13. practitioners. No contemporary cases have been found in any other venue than the United Statesfederal court system, some cases having been raised to the various Circuit Courts of Appeals ona review of the matter of jurisdiction. U.S. District Court is appropriate in the case of a deniedcitizenship claim based on a denied USCIS form N-600, Application for Certificate ofCitizenship or DOS form DS-11, Application for a U.S. Passport. As to the passport underlimited circumstances only.VIII. The USC Claimants legal right to seek redress in the U.S. Circuit Court of Appealsin a Petition for Review of a Removal Order following a BIA Dismissal.If one does not prevail in removal proceedings, (s) he will be able to raise the citizenship claimthrough section 8 USC 1252(b)(5) [INA 242(b)(5)] in a Petition for Review.8 USC 1252(b) [INA 242(b)]JUDICIAL REVIEW OF ORDERS OF REMOVAL***** (b) Requirements for review of orders of removal***** (5) Treatment of nationality claims (A) Court determination if no issue of fact If the petitioner claims to be a national of the United States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about the petitioners nationality is presented, the court shall decide the nationality claim. (B) Transfer if issue of fact If the petitioner claims to be a national of the United States and the court of appeals finds that a genuine issue of material fact about the petitioners nationality is presented, the court shall transfer the proceeding to the district court of the United States for the judicial district in which the petitioner resides for a new hearing on the nationality claim and a decision on that claim as if an action had been brought in the district court under section 2201 of title 28. (C) Limitation on determination The petitioner may have such nationality claim decided only as provided in this paragraph. A Primer on Claims to U.S. Citizenship by Joseph P. Whalen (non-attorney) November 2010 13
  • 14. IX. Options When Citizenship Claim is Made While in Removal Proceedings.In case of the existence of Removal Proceedings, the options available to first assert or reassert aclaim to U.S. Citizenship would be:If the IJ orders relief, like adjustment of status, cancellation of removal, asylum or CAT relief, orto terminate proceedings (perhaps making a prima facie determination that you might be a U.S.Citizen), and you had not yet filed anything with USCIS, then you may file a form N-600 withthe USCIS local office. If that initial N-600 were denied, then you would be required to file anappeal to AAO in order to exhaust administrative appeals available before becoming eligible tofile in U.S. District Court.If any IJ relief happens and you already had a USCIS Service Center, District or Field OfficeDirector’s Denial or an AAO Dismissal while in Proceedings, then you may file a Motionwith USCIS because you are still precluded from filing in U.S. District Court at this point.If AAO then reaffirms the Denial by dismissing the post-Proceeding Motion, then you may filein a U.S. District Court for review and declaratory judgement.USCIS retains the right to challenge that finding of the District Court to the Circuit Court ofAppeals including further appeal to the U.S. Supreme Court or let the judgement stand (it willdepend on the evidence relied upon by the District Court, something dispositive could be in therecord).If the IJ orders you removed, and you dont appeal, and you are removed, then you could tryreasserting your claim at an Embassy or Consulate through a DS-11, Passport Application fromabroad.If the IJ orders you removed, and you appeal to the BIA, and the BIA affirms, and you dontappeal to the Circuit Court of Appeals, and you are removed, then you could try reasserting yourclaim at an Embassy or Consulate through a DS-11, Passport Application from abroad. If the IJ orders you removed. you appeal and the BIA affirms, then you can reassert your claimin the Circuit Court of Appeals in a Petition for Review.If the Circuit Court of Appeals affirms the BIA and you are removed, then you could tryreasserting your claim at an Embassy or Consulate through a DS-11, Passport Application fromabroad.If the Circuit Court of Appeals affirms the BIA, then you could appeal to the U.S. SupremeCourt to reassert your citizenship claim. A Primer on Claims to U.S. Citizenship by Joseph P. Whalen (non-attorney) November 2010 14
  • 15. If the Circuit Court of Appeals affirms the BIA, and you appealed to the U.S. Supreme Court andyour writ of certiorari were denied (cert. denied), then you would have very little (if any)chance of success if reasserting your claim at an Embassy or Consulate through a DS-11,Passport Application from abroad.If the Circuit Court affirms the BIA, and you appealed to the U.S. Supreme Court and lost, thenyou would have no chance of success if reasserting your claim at an Embassy or Consulatethrough a DS-11, Passport Application from abroad.If the Circuit Court affirms the BIA, and you appealed to the U.S. Supreme Court and won, thenour case would be remanded back to USCIS to grant the N-600 and issue a Certificate ofCitizenship which would be accepted for a DS-11, Passport Application. Endnotes1 The Immigration Laws of the United States are hierarchical. In basically descending order theyconsist of: The Constitution, Judicial Precedents, Statutes, Administrative Precedents, FederalRegulations, then including Agency Procedural Manuals and Agency Policies & Interpretationsof its own Regulations and Policies.2 It is incumbent upon the claimant to exhaust his claim with the agency prior to bringing a suit indistrict court. 28 U.S.C. § 2675(a) (2006). Failure to exhaust administrative remedies must resultin dismissal of the lawsuit for want of jurisdiction. Plyler v. United States, 900 F.2d 41, 42 (4thCir. 1990). A Primer on Claims to U.S. Citizenship by Joseph P. Whalen (non-attorney) November 2010 15