Your SlideShare is downloading. ×
Transformation rule comment 4 re n 565
Transformation rule comment 4 re n 565
Transformation rule comment 4 re n 565
Transformation rule comment 4 re n 565
Transformation rule comment 4 re n 565
Transformation rule comment 4 re n 565
Transformation rule comment 4 re n 565
Transformation rule comment 4 re n 565
Transformation rule comment 4 re n 565
Transformation rule comment 4 re n 565
Upcoming SlideShare
Loading in...5
×

Thanks for flagging this SlideShare!

Oops! An error has occurred.

×
Saving this for later? Get the SlideShare app to save on your phone or tablet. Read anywhere, anytime – even offline.
Text the download link to your phone
Standard text messaging rates apply

Transformation rule comment 4 re n 565

767

Published on

Published in: Devices & Hardware
0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total Views
767
On Slideshare
0
From Embeds
0
Number of Embeds
0
Actions
Shares
0
Downloads
3
Comments
0
Likes
0
Embeds 0
No embeds

Report content
Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
No notes for slide

Transcript

  • 1. Transformation Rule Comment 4; regarding N-565■ 254. The authority citation for part 343a is revised to read as follows:Authority: 8 U.S.C. 1101 note, 1103, 1435, 1443, 1454, and 1455.■ 255. Section 343a.1 is amended by:■ a. Revising the phrase ‗‗shall apply on Form N–565 for a new paper in lieuthereof‘‘ to read ‗‗must apply on the form designated by USCIS with the feespecified in 8 CFR 103.7(b)(1) and in accordance with the form instructions‘‘ inparagraph (a);■ b. Revising the phrase ‗‗shall apply on Form N–565‘‘ to read ‗‗must apply‘‘ inparagraph (b); and■ c. Revising paragraph (c).The revision reads as follows:§ 343a.1 Application for replacement of or new papers relating tonaturalization, citizenship, or repatriation.*****(c) Adjudication and disposition.(1) Interview. The applicant shall only be required to appear in person forinterview under oath or affirmation in specific cases. Those cases whichnecessitate an interview enabling an officer to properly adjudicate the applicationat the office having jurisdiction will be determined by USCIS.(2) Approval. If an application for a new certificate of naturalization, citizenship,or repatriation or a new declaration of intention is approved, the new certificate ordeclaration will be issued and delivered by personal service in accordance with 8CFR 103.8(a)(2). If an application for a new certified copy of the proceedingsunder the Act of June 25, 1936, as amended, or under section 317(b) of theNationality Act of 1940, or under section 324(c) of the Immigration andNationality Act, or under the provisions of any private law is approved, a certifiedphotocopy of the record of the proceedings will be issued. If, subsequent tonaturalization or repatriation, the applicant‘s name was changed by marriage, thecertification of the photocopy will show both the name in which the proceedingswere conducted and the changed name. The new certified copy will be delivered tothe applicant in accordance with 8 CFR 103.8(a)(2).(3) Denial. If the application is denied, the applicant shall be notified of thereasons for the denial and of the right to appeal in accordance with 8 CFR 103.3. Page 1 of 10
  • 2. Prior to this change, the controlling N-565 regulation read:8 CFR § 343a.1 Application for replacement of or new papers relating tonaturalization, citizenship, or repatriation.(a) Lost, mutilated, or destroyed naturalization papers. A person whose declarationof intention, certificate of naturalization, citizenship, or repatriation, or whosecertified copy of proceedings under the act of June 25, 1936, as amended, or undersection 317(b) of the Nationality Act of 1940, or under section 324(c) of theImmigration and Nationality Act, or under the provisions of any private law, hasbeen lost, mutilated, or destroyed, shall apply on Form N–565 for a new paper inlieu thereof.(b) New certificate in changed name. A naturalized citizen whose name has beenchanged after naturalization by order of court or by marriage shall apply on FormN–565 for a new certificate of naturalization, or of citizenship, in the changedname.(c) Disposition. The applicant shall only be required to appear in person before anofficer for interview under oath or affirmation in specific cases. Those cases whichnecessitate an interview enabling an officer to properly adjudicate the applicationat the office having jurisdiction will be determined by a supervising officer. If anapplication for a new certificate of naturalization, citizenship, or repatriation or anew declaration of intention is approved, the new certificate or declaration shall beissued and delivered by personal service in accordance with §103.5a(a)(2) of thischapter. If an application for a new certified copy of the proceedings under the Actof June 25, 1936, as amended, or under section 317(b) of the Nationality Act of1940, or under section 324(c) of the Immigration and Nationality Act, or under theprovisions of any private law is approved, a certified positive photocopy of therecord of the proceedings filed with the Service shall be issued. If, subsequent tonaturalization or repatriation, the applicants name was changed by marriage, thecertification of the positive photocopy shall show both the name in which theproceedings were conducted and the changed name. The new certified copy shallbe personally delivered to the applicant upon his or her signed receipt therefor. Ifthe application is denied, the applicant shall be notified of the reasons therefor andof the right to appeal in accordance with the provisions of part 103 of this chapter.[23 FR 9125, Nov. 26, 1958, as amended at 32 FR 9635, July 7, 1967; 51 FR35629, Oct. 7, 1986] Page 2 of 10
  • 3. In an N-565 comment submitted on December 23, 2010, and expanded uponlater in a comment on the Retrospective Review1 on June 6, 2011, several issueswere pointed out with regard to the N-565 regulations. Among them were:N-565 Common Denial Reasons.The most common reasons for denial of a form N-565 are the requests forunsupported name changes and, usually, ridiculous requests to change a date ofbirth. Often, name change requests can be resolved through a request for evidence(RFE). Requests for a change to the date of birth are routinely denied because suchchanges are prohibited unless proven to be a typo (USCIS clerical error in thepreparation of the original certificate for the initial delivery to the applicant).Genuine Errors as to Date of Birth.Even in a case where it is later shown, upon close examination of evidence in therecord of proceeding, that an error occurred at some point in the immigrationprocess, such as a transposition of numbers, erroneously using a registration datelisted on a birth certificate instead of the birth date, or when the I-181,memorandum of creation of record, or the ―greencard‖ is issued with an incorrectdate of birth, once a naturalization applicant swears to the date of birth as writtenon their N-400, and signs under penalty of perjury, USCIS is powerless to correctit absent a court order. [8 CFR 334.16(b)]Changed Statutory Roles.The controlling regulations concerning the N-565 were written at a time whennaturalization authority was vested exclusively in the courts. The INA haschanged since the regulations were written but those implementing regulationshave sorely lagged behind the times. The U.S. District Court still retains exclusiveauthority to: 1.) administer the oath (if it exercises that authority) and, 2.) de novoreview of denials of naturalization after exhaustion of administrative review, or 3.)preside over matters arising after naturalization, such as the amendment sought inthe N-565 context, 4.) presiding over revocation/denaturalization proceedings, or5.) reviewing nationality/citizenship claims under INA § 360. The vast majority ofnaturalization authority, however, is now vested in the Secretary of HomelandSecurity. When the current regulations were written, the Clerk of the Court had agreater role in maintaining naturalization records, that role has shifted to USCIS.1 Found at: http://www.regulations.gov/#!documentDetail;D=DHS-2011-0015-0053 Page 3 of 10
  • 4. Valid Current Roles Regarding Amendments to Naturalization Records.The procedures required in the circumstances surrounding the adjudication of theN-565 have needed revision for years. USCIS would be well within its rights tostill require an N-565 applicant to obtain a court order to change a date of birthwhen there is evidence or no evidence of an error at some point in the immigrationrecord. A court can readily and easily order the change to correct an omission oroversight or a minor regulatory change could authorize USCIS to do it whenjustified. The preceding point could be addressed in a regulatory change one wayor the other. In order to recognize a substantive/material change, whether bygenuine error on the part of an applicant for naturalization, or his/her parent orguardian, a court could and should exercise its de novo review authority toreconsider naturalization qualifications in light of such change.In carrying out its statutory role in the naturalization process, “[a]representative of [USCIS] may appear at the hearing upon such application and beheard in favor of or in opposition thereto‖ [8 CFR 334.16(b)] and could, if it isappropriate, move to institute proceedings for revocation of naturalization underINA 340(b) [8 U.S.C. 1451(b)] against the N-565 applicant as having obtainednaturalization by fraud and willful misrepresentation or concealment of a materialfact or; pursuant to INA 340(a) [8 U.S.C. 1451(a)], ―upon affidavit showing goodcause therefor2‖, if the applicant was naturalized in error, as the case may be.Unless waived by the applicant, a government motion to institute proceedingsmust be accompanied by a motion for a continuance for 60 days to allow theapplicant to answer the charge.Information Contained on Certificates.USCIS-issued certificates, by law must contain a “personal description of thenaturalized person, including age, sex, marital status, and country of formernationality‖ [INA 338]. However, ―Legacy INS‖ added additional items describingthe applicant, height in feet and inches, on the Certificate of Naturalization, and onother certificates: weight, eye color, hair color, and complexion, as well as scarsor distinguishing marks (on the face as shown in the photo). The additionalidentifiers are not required by law or regulation. They are merely in the design ofthe certificates. The Adjudicator‘s Field Manual (AFM) does not contain a chapterconcerning the adjudication of the Form N-565 nor does it address the preparation2 This spelling is as it appears in the original. Page 4 of 10
  • 5. of replacement certificates. The AFM only briefly touches on the preparation of theoriginal certificates.Scope of Changes to Certificates.The correction or change to these additional characteristics is not addressed bylaw, regulation or policy other than vaguely in 8 CFR 334.16(b) in the singlesentence: “No objection shall be made to the amendment of a petition fornaturalization after the petitioner for naturalization has been admitted tocitizenship if the motion or application is to correct a clerical error arisingfrom oversight or omission‖. This single sentence does not limit corrections toerrors made only by USCIS (or Legacy INS) but rather can and should encompasserrors made by the applicant.In addition, upon the issuance of a replacement certificate after a significant periodof time has passed since initial or last issuance, the current description may have,and usually will have, changed. This is easily seen in the new photographssubmitted. A brown haired 25 year old with a clear complexion who got acertificate 50 years ago may now be a grey haired or bald 75 year old with aprominent scar on his right cheek.Summary and Suggestions.In view of the above discussion and upon a close examination of the varioussections of law and current regulations, only a portion of which are copied herein,a thorough review and revision of the regulations is long overdue. USCIS ispowerless to change the statute but could make suggestions to Congress fortechnical amendments to the INA.Working within the current statutory and regulatory framework, additions to the N-565 Form Instructions would be helpful to the applicants and USCIS adjudicators.I suggest that the form instructions address the justified requests for a change todescriptive personal characteristics to include: height, weight, hair or eye color, ordistinguishing features shown in the photograph on the certificate. The forminstructions should also clearly inform the applicant of the inability of USCIS tochange a name absent a legal document such as a marriage or divorce document(which does afford a name change) or a court ordered name change. The forminstructions should also clearly inform the applicants that a change to the date ofbirth is prohibited, even if there was some error in the immigration record in thepast, if one has completed the naturalization/citizenship process and sworn to the Page 5 of 10
  • 6. facts, including the wrong date of birth, on their form N-400, or the parent or legalguardian on behalf of a minor applicant on the forms: N-602, N-600, N-643, or N-600K; or any other form ever used in the past. *****USCIS initially responded in a supporting statement: All documentation, suggestions and requests provided by the commenter has been reviewed for its logic, judicious, wise, and equitable request. After thorough review, USCIS does not believe they should be incorporated in the form or instructions.Later, USCIS changed its mind and amended its supporting statement byadding: USCIS is amending its form instructions to inform applicants that USCIS does not have legal authority to change names without supporting legal documents (e.g., marriage, divorce, or court-ordered name-change document), nor change dates of birth.Along with that reconsidered supporting statement USCIS posted a Table ofChanges dated June 9, 2011, which included the addition of the followinginformation to the N-565 Form Instructions: NOTE: USCIS has no legal basis to change a name absent a legal document such as a marriage certificate, divorce decree, or a court ordered name change. In addition, USCIS is prohibited from making any changes to an incorrect date of birth if one has completed the naturalization/citizenship process and sworn to the facts, including the wrong date of birth.The August 29, 2011, rule also stated on page 53769: ―In addition, several expired and obsolete naturalization-related regulatory provisions have been removed, including 8 CFR: 312.3(a) (standardized citizenship testing), 329.5 (natives of the Philippines with active duty service during World War II), 332.2 (establishment of photographic studios), 334.16–334.18 (naturalization petitions), 335.11–335.13 (naturalization petitions), 338.11 and 338.12 (naturalization court processes), 339.2(c) (reports relating to petitions filed prior to October 1, 1991), and 340.1 (reopening of a naturalization application by a district director pursuant to section 340(h) of the Act). Page 6 of 10
  • 7. In 8 CFR 312.3, paragraph (a) is removed because the ‗‗standardized citizenship testing‘‘ for applicants for naturalization ended on August 30, 1998. See 63 FR 25080 (May 6, 1998). Section 329.5 is removed because the filing period for submitting an application for naturalization under section 405 of the Immigration Act of 1990, the corresponding statutory naturalization authority, expired on February 3, 1995. See 8 CFR 329.5(e). Sections 334.16–334.18, 335.11–335.13, and 339.2(c) are removed because they relate to any ‗‗petition for naturalization‘‘ filed prior to October 1, 1991. Such petitions were under the jurisdiction of the naturalization court until that date. See 8 CFR 310.4; INA section 310, 8 U.S.C. 1421.‖Some of the removed regulations which related to the N-565:§334.16 Amendment of petition for naturalization.§334.17 Transfer of petition for naturalization. Withdrawal of petition and failure to§334.18 prosecute. Preliminary examinations on petitions for§335.11 naturalization filed prior to October 1, 1991. Recommendations on petitions for§335.12 naturalization of the designated examiner and regional administrator; notice. Notice of recommendation on petitions for§335.13 naturalization of designated examiner. Execution and issuance of certificate of§338.11 naturalization by clerk of court. Endorsement by clerk of court in case name is§338.12 changed. Page 7 of 10
  • 8. VARIOUS COURT PROCEEDINGS:Petitions To Amend Certificates Of Naturalization:Various applicants have taken USCIS to court seeking orders to amend theircertificate of naturalization as to their dates of birth. As examples, see: Hussain v.U.S. Citizenship & Immigration Servs., 541 F. Supp. 2d 1082 (D. Minn. 2008);Kouanchao v. U.S. Citizenship & Immigration Servs., 358 F. Supp. 2d 837, 840 (D.Minn. 2005); In re Yu Hong Ting, 446 F. Supp. 203, 204 (S.D.N.Y. 1978); In reKonsh, 188 F. Supp. 136, 138 (E.D.N.Y. 1960). Hussain in particular is very wellwritten and is appended to this write-up.Court Criticism Of The Regulations:Hussain was decided by United States District Judge Patrick J. Schiltz on March27, 2008, in Minnesota. He performed a painstaking analysis on the topic and wasrather critical of the regulations.In discussing 8 CFR § 334.16(b), the Judge said: “This regulation specifies certain procedural requirements, but it provides virtually no substantive guidance to a court that is asked to order USCIS to issue an amended certificate of naturalization. Indeed, the regulation does not even directly address certificates of naturalization, but instead discusses the process for amending petitions for naturalization, including those petitions that have already been granted. Because amending an already-granted petition for naturalization seems like an oddly indirect way to go about obtaining an amended certificate of naturalization, the Court asked the parties if they had been able to identify any reason for this procedure. Both parties admitted that they had not……‖ “First, the parties agree that Hussain is not seeking a review of USCIS‘s decision to deny his application for an amended certificate. ....‖ ―Thus, both parties agree that USCIS lacks the power to make the change that Hussain seeks — and that, as a result, the Court owes no deference to USCIS‘s decision3 to deny Hussain‘s application for an amended certificate.3 8 CFR § 334.16(b) ―... A representative of the Service may appear at the hearing upon such application and beheard in favor of or in opposition thereto….‖ If USCIS objects, it may institute revocation proceedings per INA §340 before reaching the N-565 Court Proceeding or may request a continuance at this point to begin revocation. Page 8 of 10
  • 9. Second, as noted, the regulation under which Hussain seeks relief — 8 C.F.R. § 334.16(b) —on its face gives courts the power to amend petitions for naturalization, but not the power to amend certificates of naturalization. The government concedes4, however, that § 334.16(b) implicitly gives the Court the power to order USCIS to issue Hussain an amended certificate of naturalization.” [Emphasis added.]Judicial Need For Regulatory Guidance:Following an exhaustive legal and factual analysis of numerous cases from aroundthe country and spanning decades, Judge Schiltz drew some very insightfulconclusions. USCIS would be well served to take advantage of the detailed workdone already.Judge Schiltz concludes his analysis thusly: ―In sum, each of the relevant cases involves unique facts — facts reflecting the unique paths to citizenship taken by the various petitioners. As a result, distilling a set of abstract legal principles from these decisions is difficult. In general, though, it appears that courts have granted petitions to amend when: (1) there is clear and convincing evidence5 that the birth date on the certificate of naturalization is wrong; (2) there is little or no evidence that the petitioner acted fraudulently or in bad faith either when he or she initially provided the incorrect birth date to immigration authorities or when he or she later sought to amend the certificate of naturalization; and (3) there is reliable evidence supporting the birth date that the petitioner now alleges is correct.”4 Such concessions make clear that the Government realizes that the regulations are inadequate and out of date.5 Few courts have actually used the phrase ―clear and convincing evidence,‖ but that, in reality, is the standard ofproof that most courts seem to have applied. In almost every case in which a petition has been granted — whetherthe court purported to apply the unequivocal evidence standard (which seems to be just another name for the clear-and-convincing evidence standard), the good-cause standard, or something else — it appears that the petitioner infact presented clear and convincing evidence that the birth date on his or her certificate was incorrect. Page 9 of 10
  • 10. This N-565 situation was rather strange in that USCIS denied the change requestbased on its strict interpretation of its outdated inherited regulation. Then theapplicant was forced to fight that denial with another outdated inherited regulation.The courts are critical that USCIS and INS before it have not changed theregulations in over two decades after they ceased to reflect changes to thecontrolling statute. INA § 343(d) [8 U.S.C. § 1454(d)] gives some leeway to theexecutive branch authority to make copies or ―certifications‖ of the naturalizationrecords including certificates.Thank you for the opportunity to comment on these issues. I look forward tofurther developments.Joseph P. WhalenAugust 29, 2011 Page 10 of 10

×