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(b)(6)
Date: DEC 1 1 2014 Office: SANTA ANA, CA
IN RE: Applicant:
U.S. Department of Homeland Security
U.S. Citizenship an...
(b)(6)
NON-PRECEDENT DECISION
Page 2
DISCUSSION: The Director of the Santa Ana,California Field Office (the director) deni...
(b)(6)
Page 3
NON-PRECEDENT DECISION
(3) The child is residing in the United States in the legal and physical
custody of t...
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(AAO DEC112014 01 E2309) significant N-600 sustained appeal

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At the time of adjudication, this kid was and still is a U.S. Citizen but his parents filed the N-600 slightly before they got sworn-in as naturalized citizens. Some parents get confused and file the kids' N-600s at the same time that they file their own N-400s. It is a common misconception that this is the way to do it. There is always the possibility that USCIS will get to the N-600 BEFORE they get to the N-400s AND then at least one parent has to be approved and sworn-in for the kid to "automatically acquire" (derive) citizenship.

The director in Santa Ana, CA relied on what I have condemned as a badly written regulation. AAO seems to have gotten the hint that if they dismissed the appeal and allowed this travesty to find its way into a courtroom that it would be a resounding finding of the decision being, inter alia, "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with applicable law".

The standard under the INA is a factual finding "to the satisfaction of" the deciding official, which means "at time of adjudication" rather than "at time of filing"--just like for the final decision regarding adjustment of status.

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(AAO DEC112014 01 E2309) significant N-600 sustained appeal

  1. 1. (b)(6) Date: DEC 1 1 2014 Office: SANTA ANA, CA IN RE: Applicant: U.S. Department of Homeland Security U.S. Citizenship and Immigration Service Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington. DC 20529-2090 U.S. Citizenship and Immigration Services FILE: APPLICATION: Application for Certificate of Citizenship under Section 320 of the Immigration and Nationality Act; 8 U.S.C. § 1431 ON BEHALF OF APPLICANT: SELF-REPRESENTED INSTRUCTIONS: Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. "Thank you, n Rosenberg hief, Administrative Appeals Office www.uscis.gov This Decision reverses an erroneous and ultra virus procedural mistake. The proper consideration here was the facts as they were "at time of adjudication" rather than "at time of filing". In this case, the "critical event" was actually "time of adjudication". The burden is described in INA 341(a) [8 USC 1452(a)] instead of INA 291. It entailed demonstrating "proof to the satisfaction of" the deciding official in order to obtain a certificate of citizenship.
  2. 2. (b)(6) NON-PRECEDENT DECISION Page 2 DISCUSSION: The Director of the Santa Ana,California Field Office (the director) denied the Form N-600, Application for Certificate of Citizenship (Form N-600), and the matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained and the matter returned for issuance of a certificate of citizenship to the applicant. Pertinent Facts and Procedural History The applicant was born in Egypt on May 20,1996,and he was admitted into the United States as a lawful permanent resident on May 30, 2007, when he was 11 years old. The applicant presently seeks a certificate of citizenship pursuant to section 320 of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1431, based on the claim that he derived citizenship through his U.S. citizen mother and father. The director determined,in a decision dated March 26,2013,that the applicant was ineligible for a certificate of citizenship under section 320 of the Act because neither his mother, nor his father was a U.S. citizen when his Form N-600 application was filed on May 8, 2012. The Form N-600 was denied accordingly. On appeal the applicant submits copies of his parents' naturalization certificates reflecting that they became naturalized U.S. citizens on September 21,2012,and he indicates that he therefore qualifies for a certificate of citizenship under section 320 of the Act. We conduct appellate review on a de novo basis. Applicable Law The applicable law for derivative citizenship purposes is "the law in effect at the time the critical events giving rise to eligibility occurred." See Minasyan v. Gonzales, 401 F.3d 1069,1075 (91h Cir. 2005). Section 320 of the Act,as amended by the Child Citizenship Act of 2000 (the CCA),Pub. L. No. 106-395,114 Stat. 1631 (Oct. 30,2000),took effect on February 27,2001, and provides for automatic derivation of U.S. citizenship upon the fulfillment of certain conditions prior to a child's 18th birthday. See Matter of Rodriguez-Tejedor, 23 I&N Dec. 153 (BIA 2001). The provisions contained in section 320 of the Act apply to the applicant's U.S. citizenship claim. Section 320(a) of the Act provides that: A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled: (1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization. (2) The child is under the age of eighteen years.
  3. 3. (b)(6) Page 3 NON-PRECEDENT DECISION (3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence. The regulation at 8 C.F.R. § 103.2(b)(1) provides, in pertinent part, that and applicant must "establish that he or she is eligible for the requested benefit at the time of filing the benefit request and must continue to be eligible through adjudication," and that "any evidence submitted in connection with a benefit request is incorporated into and considered part of the request." Under 8 C.F.R. § 320.3(b)(1)(iv),an applicant applying for citizenship under section 320 of the Act must submit evidence of U.S. citizenship of his or her parent. The burden of proof is on the claimant to establish his or her claimed citizenship by a preponderance of the evidence. 8 C.F.R. § 341.2(c). The "preponderance of the evidence" standard requires that the record demonstrate that the applicant's claim is "probably true," based on the specific facts of each case. See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) (citing Matter ofE-M-, 20 I&N Dec. 77,79-80 (Comm'r. 1989)). Analysis In the present matter, evidence in the record establishes that the applicant has resided in the United States with his mother and father pursuant to a lawful admission for permanent residence since 2007, when he was 11 years old. Moreover, although the record reflects that the applicant's parents became naturalized U.S. citizens after the applicant's Form N-600 was filed, the record also reflects that their naturalization occurred prior to the director's issuance of a final decision in the applicant's case. Because the applicant had automatically derived U.S. citizenship from his parents pursuant to section 320 of the Act at the time of the director's decision, the director's decision shall be withdrawn. Conclusion In application proceedings, it is the applicant's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has been met. ORDER: The appeal is sustained and the matter returned to the director for issuance of a certificate of citizenship to the applicant. INA 341 [8 USC §1452]. Certificates of citizenship or U.S. non-citizen national status; procedure . (a) Application to [Secretary of Homeland Security (USCIS)] Attorney General for certificate of citizenship; proof; oath of allegiance A person who claims to have derived United States citizenship through the naturalization of a parent or through the naturalization or citizenship of a husband, or who is a citizen of the United States by virtue of the provisions of section 1993 of the United States Revised Statutes, or of section 1993 of the United States Revised Statutes, as amended by section 1 of the Act of May 24, 1934 (48 Stat. 797), or who is a citizen of the United States by virtue of the provisions of subsection (c), (d), (e), (g), or (i) of section 201 of the Nationality Act of 1940, as amended (54 Stat. 1138), or of the Act of May 7, 1934 (48 Stat. 667), or of paragraph (c), (d), (e), or (g) of section 1401 of this title, or under the provisions of the Act of August 4, 1937 (50 Stat. 558), or under the provisions of section 203 or 205 of the Nationality Act of 1940 (54 Stat. 1139), or under the provisions of section 1403 of this title, may apply to the [Secretary of Homeland Security (USCIS)] Attorney General for a certificate of citizenship. Upon proof to the satisfaction of the [Secretary of Homeland Security (USCIS)] Attorney General that the applicant is a citizen, and that the applicant's alleged citizenship was derived as claimed, or acquired, as the case may be, and upon taking and subscribing before a member of the Service within the United States to the oath of allegiance required by this chapter of an applicant for naturalization, such individual shall be furnished by the [Secretary of Homeland Security (USCIS)] Attorney General with a certificate of citizenship, but only if such individual is at the time within the United States. §1361. Burden of proof upon alien. . The successful N-600 Applicant is a Citizen.

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