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N 400 denial regulations need revision


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  • 1. Can the following USCIS and/or Legacy INS Regulations Be Reconciled?Anybody? Bueller? Bueller? Bueller? If you can, speak up, please.The mechanics of the denial of an N-400, Application for Naturalization are inneed of some revision. The statutory naturalization authority shifted away from theU.S. District Courts to the Attorney General (A.G.) through the Immigration Act of1990 (IMMACT). The authority shifted again upon the creation of the Departmentof Homeland Security (DHS) to the new Secretary of Homeland Security and wasthen delegated to U.S. Citizenship and Immigration Services (USCIS), headed by aDirector rather than a Commissioner as was the case with the former agency. Theformer Immigration and Naturalizations Service (Legacy INS) administered thenaturalization process for both the Courts and then the A.G. until it was replacedby USCIS (one of the DHS immigration agencies) on March 1, 2003. Regulationsthat were already long overdue for revision have only gotten more out of touchwith the statute and the practical realities of its proper administration. Whilecertain aspects are prescribed in the Immigration and Nationality Act (INA), 8CFR, Chapter I belongs to DHS and this portion is under the control of USCIS.8 CFR § 336.1 Denial after section 335 examination.(a) After completing all examination procedures contained in part 335 of thischapter and determining to deny an application for naturalization, the Service shallserve a written notice of denial upon an applicant for naturalization no later than120 days after the date of the applicants first examination on the application.(b) A notice of denial shall be prepared in a written, narrative format, and shallrecite, in clear concise language, the pertinent facts upon which the determinationwas based, the specific legal section or sections applicable to the finding ofineligibility, and the conclusions of law reached by the examining officer inrendering the decision. Such notice of denial shall also contain a specific statementof the applicants right either to accept the determination of the examining officer,or request a hearing before an immigration officer.(c) Service of the notice of denial may be made in person or by certified mail to theapplicants last known address, or upon the attorney or representative of record asprovided in part 292 of this chapter.
  • 2. 8 CFR § 335.12 Recommendations on petitions for naturalization of thedesignated examiner and regional administrator; notice.As soon as practicable after conclusion of the preliminary examination on apetition for naturalization filed prior to October 1, 1991, the designated examinershall prepare an appropriate recommendation to the court. If the recommendationis for denial, or for granting with the facts to be presented to the court, thedesignated examiner shall prepare a memorandum summarizing the evidence, andsetting forth findings of fact and conclusions of law, and his or herrecommendation. No evidence dehors1 the record or evidence not admissible injudicial proceedings under recognized rules of evidence shall be considered in thepreparation of the memorandum. The memorandum shall be submitted before finalhearing to the regional operations liaison officer, in those cases or classes of casesdesignated by him or her, for review and recommendation. If the regionaloperations liaison officer does not agree with the recommendation of thedesignated examiner, he or she shall prepare an appropriate memorandum, withfindings of fact, conclusions of law, and the recommendation of the Service,subject to review and approval by the Commissioner in those cases or classes ofcases designated by him or her, for presentation to the court with the designatedexaminers memorandum. In the preparation of memoranda, designated examinersand regional operations liaison officers shall be bound by the interpretations andrulings by the Attorney General or the Commissioner on Questions of law.[38 FR 29878, Oct. 30, 1973, as amended at 56 FR 50498, Oct. 7, 1991]8 CFR § 335.13 Notice of recommendation on petitions for naturalization ofdesignated examiner.(a) Recommendation that petition be denied. When the designated examinerproposes to recommend denial of the petition filed prior to October 1, 1991, thepetitioner or his or her attorney or representative shall be notified thereof andfurnished a copy of the designated examiners memorandum. The notice shall begiven in conjunction with notification of the date, place, and time of holding the1 De`hors´ [French in origin]prep. 1. (Law) Out of; without; foreign to; out of the agreement, record, will, or other instrument.Websters Revised Unabridged Dictionary, published 1913 by C. & G. Merriam Co.
  • 3. final hearing. The notice shall be sent by certified mail, with return receiptrequested, after any review made by the regional administrator.(b) Recommendation that petition be granted. When the designated examinerproposes to recommend granting of the petition filed prior to October 1, 1991 andto present the facts and issues to the court, the petitioner or his or her attorney orrepresentative shall be notified of the recommendation and furnished a copy of thedesignated examiners memorandum prior to the date of the hearing, and after anyreview made by the regional administrator.(c) Disagreement between recommendations of designated examiner and theregional administrator. In those cases reviewed by the regional administrator inwhich his or her views and recommendations do not agree with those of thedesignated examiner, the notice required by paragraphs (a) and (b) of this sectionshall also advise the petitioner of the recommendation of the regional administratorand that both recommendations will be presented to the court. There shall also beenclosed with such notice a copy of the regional administrators memorandum.(d) Briefs. If the petitioner intends to file a brief or memorandum at the finalhearing, he or she shall furnish a copy thereof to the Service office from which thenotice on Form N–425 emanated at least 5 days prior to the date of the finalhearing. Failure to do so will result in a motion for a continuance if deemedessential for the proper presentation of the Governments case.[22 FR 9822, Dec. 6, 1957, as amended at 35 FR 17530, Nov. 14, 1970; 56 FR50498, Oct. 7, 1991]8 CFR § 103.4 Certifications.(a) Certification of other than special agricultural worker and legalization cases— (1) General. The Commissioner or the Commissioners delegate may direct that any case or class of cases be certified to another Service official for decision. In addition, regional commissioners, regional service center directors, district directors, officers in charge in districts 33 (Bangkok, Thailand), 35 (Mexico City, Mexico), and 37 (Rome, Italy), and the Director, National Fines Office, may certify their decisions to the appropriate appellate authority (as designated in this chapter) when the case involves an unusually complex or novel issue of law or fact.
  • 4. (2) Notice to affected party. When a case is certified to a Service officer, the official certifying the case shall notify the affected party using a Notice of Certification (Form I–290C). The affected party may submit a brief to the officer to whom the case is certified within 30 days after service of the notice. If the affected party does not wish to submit a brief, the affected party may waive the 30-day period. (3) Favorable action. The Service officer to whom a case is certified may suspend the 30-day period for submission of a brief if that officer takes action favorable to the affected party. (4) Initial decision. A case within the appellate jurisdiction of the Associate Commissioner, Examinations, or for which there is no appeal procedure may be certified only after an initial decision is made. (5) Certification to AAU. A case described in paragraph (a)(4) of this section may be certified to the AAU. (6) Appeal to Board. In a case within the Boards appellate jurisdiction, an unfavorable decision of the Service official to whom the case is certified (whether made initially or upon review) is the decision which may be appealed to the Board under §3.1(b) of this chapter. (7) Other applicable provisions. The provisions of §103.3(a)(2)(x) of this part also apply to decisions on certified cases. The provisions of §103.3(b) of this part also apply to requests for oral argument regarding certified cases considered by the AAU.(b) Certification of denials of special agricultural worker and legalizationapplications. The Regional Processing Facility director or the district director may,in accordance with paragraph (a) of this section, certify a decision to the AssociateCommissioner, Examinations (Administrative Appeals Unit) (the appellateauthority designated in §103.1(f)(2)) of this part, when the case involves anunusually complex or novel question of law or fact.[52 FR 661, Jan. 8, 1987, as amended at 53 FR 43985, Oct. 31, 1988; 55 FR20770, May 21, 1990]
  • 5. 8 CFR § 103.3 Denials, appeals, and precedent decisions.*****(c) Service precedent decisions. The Secretary of Homeland Security, or specificofficials of the Department of Homeland Security designated by the Secretary withthe concurrence of the Attorney General, may file with the Attorney Generaldecisions relating to the administration of the immigration laws of the UnitedStates for publication as precedent in future proceedings, and upon approval of theAttorney General as to the lawfulness of such decision, the Director of theExecutive Office for Immigration Review shall cause such decisions to bepublished in the same manner as decisions of the Board and the Attorney General.In addition to Attorney General and Board decisions referred to in §1003.1(g) ofchapter V, designated Service decisions are to serve as precedents in allproceedings involving the same issue(s). Except as these decisions may bemodified or overruled by later precedent decisions, they are binding on all Serviceemployees in the administration of the Act. Precedent decisions must be publishedand made available to the public as described in §103.9(a) of this part.[31 FR 3062, Feb. 24, 1966, as amended at 37 FR 927, Jan. 21, 1972; 48 FR36441, Aug. 11, 1983; 49 FR 7355, Feb. 29, 1984; 52 FR 16192, May 1, 1987; 54FR 29881, July 17, 1989; 55 FR 20769, 20775, May 21, 1990; 55 FR 23345, June7, 1990; 57 FR 11573, Apr. 6, 1992; 68 FR 9832, Feb. 28, 2003]