Comment on memo introducing new afm 83 5 4-22-11
 

Comment on memo introducing new afm 83 5 4-22-11

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Commentary on new USCIS memo of 4/15/2011 on requesting revocation of passports by DOS.

Commentary on new USCIS memo of 4/15/2011 on requesting revocation of passports by DOS.

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Comment on memo introducing new afm 83 5 4-22-11 Comment on memo introducing new afm 83 5 4-22-11 Document Transcript

  • Comment on Memo introducing new AFM 83.5, dated April 15, 2011, andreleased for comment on 04/22/11through 05/05/11.PM 602-0036: Procedures For Recommending Revocation of a U.S. Passportto the Department of State; Adjudicators Field Manual, Chapter 83 (AFMUpdate AD 10-46)One of the methods allowed for contacting DOS is to send a Memo by: ―E-mail: CA-PPT-Revocations@state.gov. The subject line should read: ―Revocation Request: Name of the individual, USCIS.‖ ….‖Should name of the individual refer to the USCIS requestor (POC) or is it to be the bearer of thesuspect passport?On the Memo that is included as Appendix 83-1, it calls for a ―File Number:‖ below the USCISlogo. Is that supposed to be an A-number or the passport number or should both be listed? It isnoted that it is possible that an A-number may not have been assigned at all or as yet identified,if one had been assigned at some point in the past.Certain suspect passports may be encountered in a context that does not call for an A-number.An example of this may be when a petitioner presents a copy of a US Passport in support of an I-130, Petition for Alien Relative, and makes no reference to any A-number. The petitionerpresenting a suspect passport may have obtained it either abroad or domestically as either a USCborn abroad or a derivative citizen. Upon a deeper examination by USCIS of underlyingdocuments submitted as evidence pertaining to a claimed relationship in support of a petition, itmay become evident that the claim to citizenship is not supported. USCIS may encounter birth,marriage, death, divorce, adoption, custody, or residence/physical presence documentaryevidence that shows clear ineligibility of the petitioner’s claim to U.S. citizenship.Another more common context in which a suspect passport is encountered is the form N-600,Application for Certificate of Citizenship. In this context there will be an A-number even if itonly just been assigned due to the submission of the N-600. This would be when the form issubmitted by an applicant whose claim is for derivation or automatic acquisition of citizenshipbut chose to apply for a passport before seeking a Certificate of Citizenship from USCIS. TheAFM already addresses this scenario but could probably use some updating in conjunction withthe current effort.Passport Revocation Request Memo Comments 04-22-2011 Page 1
  • AFM 71.1 Acquisition and Derivation. (e) Filing the Application and Initial Processing. Forms N-600 and N-6431 are filed with the USCIS office in the United States having jurisdiction over the place of residence of the applicant. Overseas applicants2 may file the [N-600K] application with any office of the USCIS within the United States. ………………… (1) Initial Documentation . The documentary evidence in support of the N-600 application is not required if such evidence is available for use in other files. The instructions of the Form N-600 state that if the required documents are available, you should request the file to obtain them before asking the applicant to submit duplicate copies. 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. If the applicant indicates that he or she did apply for some sort of documentation from the State Department, you may send a completed Form N-602 to the Director of the Washington District office. Clearly describe the document requested. Similarly, if documents requested are unusual in nature, they should be described in reasonable detail. Furthermore, if there appears to be a question concerning the legitimacy of the applicant, the validity of his parents’ marriage, or some other matter which may be expected to be resolved upon the basis of the documents requested, this fact should be appropriately stated in Form N-602. If there is some reason to believe that the applicant or parent has expatriated, briefly explain the facts on the form. You may attach supplementary sheets if there is not enough room on the Form N-602. Washington Investigations will verify the information or document requested with the Department of State. You should review the Foreign Affairs Manual Volume 9 Appendix C to determine the availability of documents from the applicant’s country of birth. The manual can be found on the Internet at: http://foia.state.gov/FAMDIR/fam/fam.asp [Dead link.]1 This form [N-643] is obsolete and if encountered at this late date, It is unlikely to be eligible for conversion to anN-600. It is also unlikely to be encountered now because efforts were made to clear them all from the backlog in thewake of passage of CCA 2000, although theoretically, an N-643 could still be convertible as late as February 26,2019. The newer N-600K would never be supported by a suspect passport of the applicant but rather their parent.2 A current form N-600 may not be filed from abroad UNLESS under specific statutory provisions pertaining to U.S.Military members and possibly their children born abroad. An N-600K may be filed from abroad and usually isexpected to be so filed because a basic requirement for such expedited naturalization under INA § 322 is that thechild must be residing abroad with the USC parent (or legal guardian if the parent is deceased) . The former N-643could be filed from abroad.Passport Revocation Request Memo Comments 04-22-2011 Page 2
  • A record of admission on Form I-94 may have been created during the period that retention requirements existed for some U.S. citizen children born abroad. These Forms I-94 are maintained in Headquarters Records for a United States citizen born abroad and entering the United States for the first time. Many are stored on microfiche and microfilm; in 1983, HQ Records started automating the I-94s. To request information about these files, you will need to send a fax to the Office of Records Management Certification Unit at (202) 305-1737. You will need to include the name of the person or applicant, the date of birth, date of entry and the Form I- 94 number or admission number.What is an N-602?Is the effort by DHS to coordinate communication more effectively with DOS regarding suspectpassports confined solely to USCIS at this point? Is USCIS coordinating this effort only for itselfor are ICE and CBP being consulted? Is USCIS just the lead agency on this matter for DHS?It is noted that Adjudications Officers were previously instrumental in matters pertaining to legalresearch back when INS existed, especially in matters involving naturalization and citizenship.Naturalization Officers had a lead role in denaturalization cases and often were among the first inINS to determine which crimes equated to CIMTs or aggravated felonies.AFM 76 Denaturalization. 76.1 General. Denaturalization, or revocation of naturalization, is one of the more complex and time consuming actions provided for under the INA. In addition, unlike most other proceedings conducted under the INA which are handled in administrative settings, denaturalization actions must be filed in federal district court. Because citizenship is such a precious right, it cannot be taken away unless the government is able to meet a high burden of proof, either clear, unequivocal, and convincing evidence that does not leave any issue in doubt (in a civil denaturalization proceeding pursuant to 8 U.S.C. § 1451(a)), or beyond a reasonable doubt (in a criminal proceeding initiated pursuant to 18 U.S.C. § 1425). Accordingly, a case should only be referred for denaturalization where there is objective evidence to establish that the individual was not eligible for naturalization, or procured naturalization by willful concealment or material misrepresentation. A discussion of the legal standards for denaturalization can be found in Chapter 22.3 of the Special Agent’s Field Manual. During the denaturalization proceeding, USCIS’ practices and procedures will be carefully scrutinized by the court. All related documentation from the A-file is subject to discovery and may need to be introduced as evidence. In addition, the USCIS officers who conducted the naturalization interview and approved the application may be called to testify as witnesses. Therefore, it is essential for USCIS officers to follow established procedures throughout the naturalization application process.Passport Revocation Request Memo Comments 04-22-2011 Page 3
  • The district adjudications officer plays a central role in the denaturalization process. First, and foremost, by carefully adjudicating the naturalization application, the DAO can ensure that only individuals eligible for naturalization in fact receive this most important benefit. Second, by ensuring that the naturalization case has been carefully adjudicated, for example, that all applicants are interviewed under oath, and all modifications occurring during the interview are noted clearly and completely on N-400 or processing sheet, the DAO can ensure the Government will meet the high burden of proof if denaturalization is appropriate. Finally, because they are most familiar with the requirements for naturalization and the naturalization process, the DAO serves an important function in identifying potential denaturalization cases, assisting Investigations and Counsel in preparing the case for litigation, and testifying as necessary once the case is in litigation. 76.2 Adjudicator Actions. If you encounter a case that you believe merits denaturalization, you should refer the matter to Investigations for preparation of a revocation report as set forth at Chapter 22.6 of the Special Agent’s Field Manual. If the case involves an individual who is believed to be involved in terrorist activity or particularly serious criminal conduct, or there are other unusual factors favoring expedited treatment, you should directly contact the USCIS Office of the General Counsel for instructions.The above excerpt makes reference to the Special Agent’s Field Manual. In the former INS,Special Agents in Investigations coordinated closely with DAO’s. Those agents becameemployees of ICE and the DAO’s became employees of USCIS. The AFM also has passagesthat make reference to the IFM (Inspector’s Field manual) however, those INS inspectorsbecame employees of CBP. Each of the new DHS agencies has suffered from a terrible drain oninstitutional knowledge in matters that were handled in those components that were separatedfrom the other two. Pity that there is not better inter-agency—intra-departmental communication.Is OGC the proper POC for that issue or is it now OCC? Or are these two separate entities?There is the U.S. Department of Homeland Security’s (DHS) Office of General Counsel (OGC),but would this be within their purview? USCIS has an Office of Chief Counsel (OCC), wouldthey be the legal experts who would take the lead? In any event, if a case went to court wouldDOJ’s Office of Immigration Litigation (OIL) be involved? Officers should be aware of themand what they do. They provide additional legal resources that may be of use to adjudicators in awide range of issue and the latest case-law, condensed and on topic.The DOJ Civil Division lists OIL as one of its components and describes it thus: The Office of Immigration Litigation oversees all civil immigration litigation, both affirmative and defensive, and it is responsible for coordinating national immigration matters before the federal district courts and circuit courts of appeals. It provides support and counsel to all federal agencies involved in alien admission, regulation, and removal under U.S. immigration and nationality statutes. Office of Immigration Litigation attorneys work closely with United States Attorneys Offices on immigration cases. ThePassport Revocation Request Memo Comments 04-22-2011 Page 4
  • Office of Immigration Litigation is divided into two functional sections, an Appellate Section and a District Court Section. http://www.justice.gov/civil/oil/oil_home.htmlOIL is further broken down into two sub-components: ….. District Court Section (OIL-DCS) is a highly active litigation section in the Department of Justice’s Civil Division. OIL-DCS handles immigration matters at the district court level in any of the 94 federal district courts nationwide and provides centralized expertise on district court-related immigration matters. Created in 1983, the Office of Immigration Litigation defends and preserves the Executive Branch’s authority to administer U.S. immigration and nationality matters. The District Court Section was officially created on February 26, 2008. In addition to district court cases, OIL-DCS handles matters in the courts of appeals that arise from its district court cases. The District Court Section is one of the few sections within the Department of Justice in which an attorney might handle a case at both the trial and appellate levels. OIL’s Appellate Section continues to handle petitions for review in the courts of appeals and from the Board of Immigration Appeals. ……. http://www.justice.gov/civil/oil/dcs/oil-dcs.html …..OIL- Appellate Section attorneys hold primary responsibility for civil immigration case litigation before the federal appellate courts. These cases present numerous challenging issues, both legal and factual, relating to whether an individual, pursuant to the Immigration and Nationality Act, 8 U.S.C. § 1101, et seq., is subject to removal from the United States or is eligible for some form of benefit, relief, or protection that would allow him or her to remain in the United States. In Fiscal Year 2009, there were over 7,500 such cases filed, and they comprised approximately thirteen percent of all cases filed in the federal appellate courts. OIL-Appellate Section attorneys write motions and briefs, argue cases, and coordinate with other federal agencies and components of the Department of Justice to ensure that there is uniform application of our immigration laws as these laws evolve to meet the new challenges our country faces. Coordination with other components of the Department of Justice includes working with the Civil Division’s Appellate Staff and the Office of the Solicitor General to assess which appellate court decisions may warrant further review at either a circuit court or the Supreme Court level. OIL-Appellate Section’s coordination with other federal agencies includes working closely with the Department of State, the Department of Homeland Security (DHS) and DHS’s three components – the U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement, and U.S. Customs and Border Protection – to uphold and defend U.S. immigration laws.Passport Revocation Request Memo Comments 04-22-2011 Page 5
  • The Office of Immigration Litigation, Appellate Section publishes the Immigration Litigation Bulletin, available at OIL-APP Documents & Forms. This is a monthly publication intended to keep attorneys within the Departments of Justice and Homeland Security apprised of litigation matters in the immigration field. http://www.justice.gov/civil/oil/as/oil-app.html OIL Immigration Litigation Bulletin: http://www.justice.gov/civil/oil/as/oil-app_links.html#oil_bulletin [Ordinary and Delayed Public Link] OR even better try: http://www.justice.gov/civil/oil/ImmigrationBulletin.htm [Up to date latest issue!!!!] USDOJ, Executive Office for Immigration Review: Immigration Law Advisor http://www.justice.gov/eoir/vll/ILA-Newsleter/lib_ila.htmlPassport Revocation Request Memo Comments 04-22-2011 Page 6