An N-600 Appeal or Motion:          Should Never Be Rejected as Untimely Filed;             It Should Be Treated as a Moti...
The applicant presents no new facts to be proved or reasons for reconsideration       supported by any pertinent precedent...
The following is a dissection of that same regulation with commentary interspersed.       8 CFR 341.6 Denial of applicatio...
The motion shall be accompanied by the rejected application and the fee specified in 8       CFR 103.7 reduced by the amou...
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Just Say NO to Untimely Rejection of N-600 Appeals

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Just Say NO to Untimely Rejection of N-600 Appeals

  1. 1. An N-600 Appeal or Motion: Should Never Be Rejected as Untimely Filed; It Should Be Treated as a Motion and Issued a Decisions on the Merits In ALL CasesBelow from: a non-precedent AAO Decisions at: Jan132010_01E2309.pdf “DISCUSSION: The Field Office Director, Las Vegas, Nevada, denied the Application for Certificate of Citizenship (Form N-600). The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be rejected as untimely filed. [Emphasis added.] In order to properly file an appeal, the regulation at 8 C.F.R. §103.3(a)(2)(i) provides that the affected party must file the complete appeal within 30 days after service of the unfavorable decision. If the decision was mailed, the appeal must be filed within 33 days. See 8 C.F.R. §103.5a (b). The date of filing is not the date of mailing, but the date of actual receipt. See 8 C.F.R. § 103.2 (a)(7)(i). The record indicates that the director issued the decision on October 23, 2007. See Decision of the Director, dated Oct. 23, 2007. The director properly gave notice to the applicant that he had 33 days to file the appeal. See id. Here, day 33 fell on Sunday, November 25, 2007. Accordingly, the appeal was due on Monday, November 26, 2007. Although the appeal is dated November 19, 2007, it was received by the director on November 27, 2007. Accordingly, the appeal was untimely filed. Because neither the Act nor the pertinent regulations grant the AAO authority to extend the 33-day time limit for filing an appeal, the appeal must be rejected. If an untimely appeal meets the requirements of a motion to reopen or a motion to reconsider, the appeal must be treated as a motion, and a decision must be made on the merits of the case. See 8 C.F.R. §103.3(a)(2)(v)(B)(2). A motion to reopen must state the new facts to be proved in the reopened proceeding and be supported by affidavits or other documentary evidence. 8 C.F.R. §103.5(a)(2). A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or Service policy. 8 C.F.R. §103.5(a)(3). A motion to reconsider a decision on an application or petition must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision. Id. A motion that does not meet applicable requirements shall be dismissed. 8 C.F.R. §103.5(a)(4). 1
  2. 2. The applicant presents no new facts to be proved or reasons for reconsideration supported by any pertinent precedent decisions. On the Form I-290B, Notice of Appeal, counsel indicated that he would file a brief or evidence within 30 days. To date, over two years later, the AAO has received nothing further from counsel or the applicant. The untimely appeal does not meet the requirements of a motion to reopen or to reconsider, and will be rejected.”The controlling regulation is NOT the one cited in the decision. The regulation specific tothe form and benefit sought overrides a generally applicable regulation. 8 CFR 341.6 Denial of application. If it is the decision of the district director to deny the application for a Certificate of Citizenship, the applicant shall be furnished the reasons for denial and advised of the right to appeal in accordance with the provisions of 8 CFR 103.3(a). After an application for a Certificate of Citizenship has been denied and the appeal time has run, a second application submitted by the same individual shall be rejected and the applicant 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 reduced by the amount of the fee paid with the rejected application. 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. [50 FR 39649, Sept. 30, 1985]Certain concepts stated in that regulation are of paramount importance to this processingissue. This is buttressed by the supplementary information in the Federal Register Noticewhen this regulation was promulgated in 1985. This regulation was promulgated at 50 FR39649 (9/30/1985) for the express purpose of clarifying and affirming "the requirementthat a decision be issued and the applicant be notified in all cases involving aCertificate of Citizenship, and specifically include cases closed administratively. ..."In other words, every case must be issued a decision based on the merits. There arepractical reasons for this.The AAO Dismissal exhausts the normal administrative review which makes the caseripe for filing in the U.S. District Court of jurisdiction. AAO routinely fails to informdenied citizenship claimants of this right. From the USCIS side, it is in the agency’s bestinterest to only allow fully legally supported and well-reasoned Dismissals to bechallenged in District or Circuit Courts. 2
  3. 3. The following is a dissection of that same regulation with commentary interspersed. 8 CFR 341.6 Denial of application. If it is the decision of the district director to deny the application for a Certificate of Citizenship, the applicant shall be furnished the reasons for denial and advised of the right to appeal in accordance with the provisions of 8 CFR 103.3(a).The first sentence addresses the initial agency decision at the local office level. The termdistrict director now officially refers to and fully embraces the Service Center, NationalBenefits Center, District, and Filed Office Directors. The cited regulation describes thegenerally applicable appeals procedures for filing the request for a further review by theAAO. In practical terms, the I-290B is submitted to the original decision-maker for asecond look with whatever arguments and evidence the applicant offers, if any. Onlywhen the original decision-maker is standing by their original decisions or reconsidersbut still denies the claim will the case be forwarded to AAO. If an Appeal is rejected asuntimely by AAO, then whatever the local Director stated is what the Court wouldreview in a Petition filed by the claimant and only peripherally review the AAOdismissal. Does USCIS want this? After an application for a Certificate of Citizenship has been denied and the appeal time has run, a second application submitted by the same individual shall be rejected and the applicant instructed to submit a motion for reopening or reconsideration in accordance with 8 CFR 103.5.After the appeal time has run out, only a Motion may be submitted. Under the generallyapplicable regulation at 8 CFR § 103.5, an untimely appeal only meets the requirementsof a Motion if supported by argument or evidence. However, the reality of an N-600 isjust not that simple. Often, the same evidence will support the claim if weighed properly.This is the key factor in most AAO Sustained Appeals. Also, USCIS should be clearlytelling applicants that they may not file a second N-600 in the Denial Decision issued inrelation to the first N-600. Any I-290B filed for a denied N-600 should be accepted anddecided on the merits. If not approved, the applicant should be told to file in Court butafforded the option to file another Motion at anytime in the future if there is a change inthe law or truly new evidence can be offered for review. 3
  4. 4. The motion shall be accompanied by the rejected application and the fee specified in 8 CFR 103.7 reduced by the amount of the fee paid with the rejected application.The same form (I-290B) is used in order to file either an Appeal or Motion and the fee isthe same. It seems irrational to reject an appeal as untimely when the same form can thento be used to file the legally allowed Motion after that. The only difference being whichbox is checked on the form. It is as irrational as allowing (as in not preempting) the filingof a second N-600 just so that it can be rejected with instructions to file a Motion. Thisreinforces the need to clarify the actual Appeal and Motion rights that follow the initialdenial by the district director and any AAO dismissals. 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.An N-600 cannot be Administratively Closed as there is no statute or regulation allowingfor it, and even if Denied Due to Failure to Prosecute (or Abandonment), the citizenshipclaimant STILL has Appeal Rights. This is true at both the initial and final agencyreview stages. When an unsupported, frivolous, or just plain ineligible N-600 denialchallenge, whether as an Appeal or Motion, is dismissed by AAO, the claimant has afurther right of appeal to the District Court. The citizenship claimant may seek judicialreview of the final agency decision on their case, by filing a Petition for DeclaratoryJudgment of U.S. Nationality (or Citizenship) in a U.S. District Court under INA § 360(a)[8 U.S.C. § 1503(a)] and pursuant to 28 U.S.C. § 2201.By dismissing out of hand, and without fully addressing the merits itself or incorporatingthe prior decision with or without clarifications or modifications, AAO will turn theinitial agency decision into the final agency decision for all practical purposes in theDistrict or Circuit Court review of the matter. This may not be a wise move. After all, inorder to come to the conclusion that an untimely appeal does not meet the requirementsof a motion, AAO has to review the record of proceeding first. Since AAO is going to thetrouble of doing the review, why not state something substantive? AAO retains theplenary power of de novo review and uses it in all cases anyway. Why not adopt someprocedures to make use of that de novo review?Things get even more complicated if the claimant is involved in Removal Proceedings.The existence of concurrent Removal Proceedings would preclude U.S. District Courtjudicial review under the above section of law and restrict review to a Petition for Reviewin a U.S. Circuit Court of Appeals of any Removal Order following a BIA Dismissal ofan Appeal and/or Motion in relation to the Removal Order under 8 U.S.C. § 1252(b)[INA § 242(b)]. 4

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