Practical approach to pursuing Citizenship Claims via I-290B 9-5-2011
 

Practical approach to pursuing Citizenship Claims via I-290B 9-5-2011

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Practical approach to pursuing Citizenship Claims via I-290B 9-5-2011 Practical approach to pursuing Citizenship Claims via I-290B 9-5-2011 Document Transcript

  • A Practical Approach to Pursuing a Citizenship Claim before USCIS viaForm I-290B after N-600 Denial: Request Certification of MotionThe controlling regulations pertaining to the request for recognition of one’sUnited States Citizenship and issuance of a Certificate of Citizenship from USCISare not well understood. The controlling regulations specific to the request areseemingly in conflict with the more generally applicable motion and appealregulation in 8 CFR Part 103. If not deemed in conflict, they are simplymisapplied.Owing to this unfortunate circumstance, it would seem to be in the best interest ofthe citizenship claimant to be proactive in reasserting their claim. Once an initialN-600 has been denied, an I-290B may be filed in order to challenge that denial.In order to properly file an I-290B, make certain of the basics:  Before you mail it, go online and check the fee and filing address (if there is a lawyer in the U.S. in 2011, without a computer and internet access, retire);  Get out a calendar and count the days from the date of the Denial Decision and make sure that the paperwork will reach the correct address by the deadline;  Make sure that only a package that will reach USCIS on time is marked as an Appeal;  If the package will arrive AFTER the appeal deadline, mark it as a Motion AND state that it is filed in lieu of a second N-600 which is prohibited from being filed by USCIS regulation;  Any Appeal or Motion should have new evidence and/or make an argument of some sort (new law, misinterpretation of law or fact); give the Director or AAO something to address in order to avoid Summary Dismissal;  For any Motion to a Director, specifically request in writing that any unfavorable decision be certified to AAO (the Director is NOT required to oblige but it does not hurt to ask because IF the Director Dismisses a Non- Frivolous1 Motion; the claimant has renewed Appeal Rights directly to the AAO anyway and the Director won’t look like a jerk).1 A frivolous Motion will be dismissed and any new I-290B will require a new fee.
  • Once an N-600 has been denied by the Service Center, District or Field OfficeDirector, an administrative appeal is allowed but must be filed within 30 days, 33days when the denial is served by mail.An untimely Appeal that meets the requirements of a Motion must be treated as aMotion and a Decision must be issued on the merits.Once the appeal period has expired, a second N-600 may not be filed. If one isfiled, it is supposed to be rejected and the applicant instructed to file a Motioninstead.A Motion to Reopen must have new evidence. Reopening may be supported by anaffirmative change in the law.A Motion to Reconsider must identify an error in fact or law. Reconsideration maybe requested based on a change in the interpretation of the law or an argumentsupporting a reinterpretation in the current proceeding. In that a Motion toreconsider may also be based on an error in fact, a case may be made in theinterpretation of the facts in the case. Numerous AAO Decisions that reverse thedecision below have NO NEW EVIDENCE and offer NO NEW LAWS nor arethey supported by PRECEDENT DECISIONS. Many reversals simple re-evaluatethe SAME evidence under the CORRECT STANDARD OF PROOF.In any event, once an N-600 has been denied initially, the matter may be pursuedfurther. The regulations provide for an administrative review. The regulation wasdesigned to assure that a substantive final agency decision be issued on the meritsprior to seeking judicial review.All citizenship claims have a judicial review path. There are two paths to judicialreview. One is simply from an administrative denial of recognition of a citizenshipissued by USCIS in connection with an N-600 (or N-600K). The “alien” may file aPetition for Declaratory Judgment of United States Nationality (Citizenship) in theappropriate U.S. District Court.The other path is when an “alien” has been issued an Oder of Removal and the BIAhas Dismissed an Appeal OR when ICE has issued an administrative Final Orderof Removal. The “alien” may file a Petition for Review of the Removal Order in theappropriate U.S. Circuit Court of Appeals.
  • The Administrative Final Action in either situation (the N-600 Denial or within thecontext of a Removal Order) is subject to a particular judicial review pathcontained within the INA. It would seem to be simple common sense that USCISwould prefer that the Final Agency Action or Decision that is subject to thatjudicial review be the a Decision issued by its Administrative Appeals Office(AAO) rather than the initial agency decision issued below. However, some ofAAO’s procedures have left the agency in the position of paving the way forjudicial challenge of initial decisions of the various Directors.AAO has been known to Reject N-600 Appeals as Untimely thus making theunderlying decision the Final Agency Decision that becomes subject to judicialreview. Other times AAO will properly Summarily Dismiss an unsupported oroutright frivolous Appeal or Motion. Sometimes AAO incorporates by reference orsummarizes the underlying decision with or without modification or clarification.Whatever it does as to the case before it, AAO routinely fails to inform of theAppeal Rights that lie from that substantive Dismissal, Summary Dismissal, orRejection. The only proper Rejection without Appeal Rights notification thatseems reasonable is an appeal or motion filed by a party without standing to file inthe first place.For Easy Reference (Discussion Follows):5 USC, Part I, Ch. 7§ 704. Actions reviewable Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 392.)
  • INA § 360 [8 USC § 1503] Denial of rights and privileges as national (a) Proceedings for declaration of United States nationality If any person who is within the United States claims a right or privilege as a national of the United 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, such person may institute an action under the provisions of section 2201 of title 282 against the head of such department or independent agency for a judgment declaring him to be a national of the United States, except that no such action may be instituted in any case if the issue of such persons status as a national of the United States (1) arose by reason of, or in connection with any removal proceeding under the provisions of this chapter or any other act, or (2) is in issue in any such removal proceeding. An action under this subsection may be instituted only within five years after the final administrative denial of such right or privilege and shall be filed in the district court of the United States for the district in which such person resides or claims a residence, and jurisdiction over such officials in such cases is conferred upon those courts.8 CFR § 103.4 Certifications.[Substitute DHS or the DHS for Service or the Service](a) Certification of other than special agricultural worker and legalization cases-(1) General. The Commissioner3 or the Commissioners delegate may direct thatany case or class of cases be certified to another Service official for decision. Inaddition, regional commissioners, regional service center directors, districtdirectors, officers in charge in districts 33 (Bangkok, Thailand), 35 (Mexico City,Mexico), and 37 (Rome, Italy), and the Director, National Fines Office4, maycertify their decisions to the appropriate appellate authority (as designated in this2 That is the Declaratory Judgment Act.3 INS ceased to exist on March 1, 2003. From then on, the Secretary of Homeland Security is the principle Cabinet-Level authority exercising powers pertaining to immigration and nationality benefits adjudications under the INA,domestically, specifically and primarily as described in INA § 103 [8 USC § 1103]. Any of the DHS agenciesadministering delegated authority under the INA could certify certain decisions to AAO. USCIS Service Center,National Benefits Center, District and Field Office Directors are the most common officials to do so.4 Authority has shifted as to this Official and subject matter. Within DHS, ICE (often working with DOJ/OSC-CRT)issues fines appealable to EOIR/OCAHO.
  • chapter) when the case involves an unusually complex or novel issue of law orfact. [or matters of first impression.](2) Notice to affected party. When a case is certified to a Service officer, theofficial certifying the case shall notify the affected party using a Notice ofCertification (Form I–290C). The affected party may submit a brief to the officerto whom the case is certified within 30 days after service of the notice. If theaffected party does not wish to submit a brief, the affected party may waivethe 30-day period.(3) Favorable action. The Service officer to whom a case is certified maysuspend the 30-day period for submission of a brief if that officer takes actionfavorable to the affected party.(4) Initial decision. A case within the appellate jurisdiction of the AssociateCommissioner, Examinations, or for which there is no appeal procedure may becertified only after an initial decision is made.(5) Certification to AAU5. A case described in paragraph (a)(4) of this section maybe certified to the AAU.(6) Appeal to Board. In a case within the Boards appellate jurisdiction, anunfavorable decision of the Service official to whom the case is certified (whethermade initially or upon review) is the decision which may be appealed to the Boardunder §3.1(b) of this chapter.(7) Other applicable provisions. The provisions of §103.3(a)(2)(x)6 of this part alsoapply to decisions on certified cases. The provisions of §103.3(b)7 of this part alsoapply to requests for oral argument regarding certified cases considered by theAAU.(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 appellate5 Name has changed to Administrative Appeals Office (AAO).6 (x) Decision on appeal. The decision must be in writing. A copy of the decision must be served on the affectedparty and the attorney or representative of record, if any.7 (b) Oral argument regarding appeal....
  • authority 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]8 CFR § 320.5 What happens if the application is approved or denied by theService? [Substitute USCIS for the Service](a) Approval of application. If the application for the certificate of citizenship isgranted, after the applicant takes the oath of allegiance prescribed in 8 CFR part337, unless the oath is waived, the Service will issue a certificate of citizenship.(b) Denial of application. If the decision of the district director is to deny theapplication for a certificate of citizenship under this section, the applicant shall befurnished with the reasons for denial and advised of the right to appeal inaccordance with the provisions of 8 CFR 103.3(a). An applicant may file an appealon Form I–290B, Notice of Appeal to the Administrative Appeals Unit (AAU),with the required fee prescribed in §103.7(b)(1) of this chapter, in accordance withthe instructions therein and with any supporting documentation addressing thereasons for denial. To be timely, an appeal must be filed within 30 days of serviceof the decision. After an application for a certificate of citizenship has been deniedand the time for appeal has expired, a second application submitted by the sameindividual shall be rejected and the applicant will be instructed to submit a motionfor reopening or reconsideration in accordance with 8 CFR 103.5. The motion shallbe accompanied by the rejected application and the fee specified in 8 CFR 103.7.A decision shall be issued with notification of appeal rights in all certificate ofcitizenship cases, including any case denied due to the applicants failure toprosecute the application.8 CFR § 341.6 Denial of application.If it is the decision of the district director to deny the application for a Certificateof Citizenship, the applicant shall be furnished the reasons for denial and advisedof the right to appeal in accordance with the provisions of 8 CFR 103.3(a). Afteran application for a Certificate of Citizenship has been denied and the appeal timehas run, a second application submitted by the same individual shall be rejectedand the applicant instructed to submit a motion for reopening or reconsideration inaccordance 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. [Emphasis added.] [50 FR 39649, Sept. 30, 1985] Further Discussion: 8 CFR § 341.6 was written for a reason. It appears to have been written for the primary purpose of obtaining a definitive conclusion on the question posed. What does that last sentence in this regulation mean in practical terms? Break it down: I. A decision shall be issued in all Certificate of Citizenship cases. II. A decision shall be issued in all Certificate of Citizenship cases, including any case denied due to the applicants failure to prosecute the application. III. All Certificate of Citizenship cases shall be issued with notification of appeal rights. IV. All Certificate of Citizenship cases...denied due to the applicants failure to prosecute the application.... shall be issued with notification of appeal rights V. All Certificate of Citizenship cases denied due to the applicants failure to prosecute.... shall be with appeal rights VI. All Certificate of Citizenship cases shall [have] notification of appeal rights.VII. All Certificate of Citizenship cases shall [have] appeal rights.VIII. A decision shall be issued in all Certificate of Citizenship cases AND shall [have] appeal rights. Joseph P. Whalen Aug. 14, 2011
  • On Aug. 29, 2011, DHS published a Final Rule for USCIS with a request forcomments. In that rule, 8 CFR § 341 was revised as shown below such that § 341.5was expanded and gobbled-up §§ 341.6 and 341.7.§ 341.5 Decision.(a) Adjudication. USCIS may adjudicate the application only after the appropriateapproving official has reviewed the report, findings, recommendation, andendorsement of the USCIS officer assigned to adjudicate the application.[Codification of Supervisory Review.](b) Approval. If the application is granted, USCIS will prepare a certificate ofcitizenship and, unless the claimant is unable by reason of mental incapacity oryoung age to understand the meaning of the oath, he or she must take andsubscribe to the oath of renunciation and allegiance prescribed by 8 CFR 337before USCIS within the United States. Except as provided in paragraph (c),delivery of the certificate in accordance with 8 CFR 103.2(b) (19) and 8 CFR103.8 must be made in the United States to the claimant or the acting parent orguardian. [Incorporates former § 341.7.](c) Approval pursuant to section 322(d) of the Act. Persons eligible fornaturalization pursuant to section 322(d) of the Act may subscribe to the oath ofrenunciation and allegiance and may be issued a certificate of citizenship outsideof the United States, in accordance with 8 U.S.C. 1443a. [Completely new.](d) Denial. If USCIS denies the application, the applicant will be furnished thereasons for denial and advised of the right to appeal in accordance with 8 CFR103.3. [Incorporates former § 341.6.](e) Subsequent application. After an application for a certificate of citizenship hasbeen denied and the time for appeal has expired, USCIS will reject a subsequentapplication submitted by the same individual and the applicant will be instructed tosubmit a motion to reopen or reconsider in accordance with 8 CFR 103.5. Themotion must be accompanied by the rejected application and the fee specified in 8CFR 103.7. [Incorporates former § 341.6.]
  • Ortega v. Holder, et. al, 592 F.3d 738; 2010 U.S. App (7th Cir. 2010)8 provides:“.... Congresss solicitude in providing all others with a means of obtaining acertificate of citizenship either through the general application process or throughthe removal process evinces Congresss concern that individuals be able tosettle, definitively, the issue of citizenship.”..... “As we have discussed in somedetail, 8 C.F.R. § 341.6 requires that any subsequent application for citizenship[should] be filed as a motion to reconsider or to reopen. ...” [§ 341.6 has beenrepealed, this issue is now covered by § 341.5(e) per 76 FR 53764, 53805(8/29/11), effective Nov. 28, 2011.] The regulation is still clunky. However, thecourt stated it in a workable manner.8 Found at: http://caselaw.findlaw.com/us-7th-circuit/1497479.html orhttp://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=gdjb&searchTerm=hYKL.gLja.ZCaW.LabT&searchFlag=y&l1loc=FCLOW