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AAO N-600 Dismissal JUN022014 04-E2309


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Very interesting case!

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AAO N-600 Dismissal JUN022014 04-E2309

  1. 1. (b)(6) Date: JUN 022014 Office: COLUMBUS, OH INRE: Applicant: U.S. Department of Homeland Security U.S. Citizenship and Immigration Service Admini.strative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washimrton. 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. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at for the latest information on fee, filing location, and other requirements. See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. Thank you, on R senberg hief, Administrative Appeals Office 20Applications%20for%20Certification%20of% 20Citizenship/Decisions_Issued_in_2014/ JUN022014_04E2309.pdf Please see the regulation and comment on the last page!
  2. 2. (b)(6) NON-PRECEDENT DECISION Page 2 DISCUSSION: The Application for Certificate of Citizenship (Form N-600) was denied by the Field Office Director, Columbus, Ohio (the director), and the matter came before the Administrative Appeals Office (AAO) on appeal. On March 7, 2014, the AAO sustained the appeal. The AAO reopened the proceedings, withdrew its prior decision, and provided the applicant with an opportunity to supplement the record. The applicant failed to respond within the time specified. The appeal will be dismissed. Pertinent Facts and Procedural History The applicant was born on May 19, 2004 in Kenya. The applicant's claimed parents are and . The applicant's alleged father became a U.S. citizen upon his naturalization on June 1, 2012, when the applicant was eight years old. The applicant's alleged mother is not a U.S. citizen. The applicant, a Somali refugee, was admitted to the United States as a lawful permanent resident as of October 19, 2006, when he was two years old. The applicant seeks a certificate of citizenship pursuant to section 320 of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1431, as amended by the Child Citizenship Act of 2000 (the CCA), Pub. L. No. 106-395, 114 Stat. 1631 (Oct. 30, 2000). The director denied the application finding that the applicant had failed to provide a birth certificate to establish that he was the child of a U.S. citizen. The AAO sustained the appeal. The AAO reopened the proceedings, withdrew its prior decision, and provided the applicant with an opportunity to submit a valid birth certificate and evidence that he was in the physical and legal custody of his alleged father. The applicant was afforded 33 days in which to provide the requested evidence. The applicant has failed to respond. Applicable Law The AAO reviews these proceedings de novo. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 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 (91 h Cir. 2005). The applicant was under 18 years of age on the effective date of the CCA, February 27, 2001. Thus, section 320 of the Act, as amended by the CCA, is applicable to his case. Section 320 of the Act provides, in pertinent part, that: (a) 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. I would ask for DNA testing even with a birth certificate!
  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 regulations, 8 C.P.R. § 320.3(b)(1)(i), require that the applicant submit a birth certificate when applying for a certificate of citizenship. The regulation at 8 C.P.R. § 320.1 defines "legal custody" as "the responsibility for and authority over a child." Legal custody is presumed in the case of a "biological child who currently resides with both natural parents (who are married to each other, living in marital union, and not separated)." See 8 C.P.R.§ 320.1(1)(i). Analysis The applicant is seeking to derive U.S. citizenship from his purported father. The applicant's file contains a copy of a birth certificate issued by the Republic of Kenya. The birth certificate indicates that the applicant's father is However, the applicant indicates on his Form N-600 that his father's name is , and he submits a copy of 's naturalization certificate. Thus, the birth certificate does not establish the applicant's relationship to his alleged U.S. citizen father. Further, the applicant's birth certificate indicates that his birth was registered on August 3, 2004, and that his certificate was issued on August 1, 2005. However, there is a notation on the certificate ("CA. NO. of 4/7/2005"), dating both the record number of the document ) and the date of registration as July 4, 2005, not August 3, 2004 as in the body of the certificate. The exact same notation, "CA. NO. of 4/7/2005," also appears on the applicant's brother's birth certificate, who was allegedly born in 2002 and, therefore, would not share the same record number as his brother. Additionally, according to the U.S. Department of State, Kenyan birth certificates may be obtained from the Department of Civil Registration.1 The birth certificate in the record was obtained from the District Registrar and not from the Department of Civil Registration. The applicant did not respond to the AAO's request to submit a new birth certificate or otherwise provide any evidence or explanation to overcome the inconsistencies and deficiencies noted in the record. The record also does not contain evidence that the applicant was in his alleged father's legal and physical custody when the alleged father naturalized in 2012. The applicant has submitted no evidence to demonstrate this eligibility criterion. 1 See
  4. 4. (b)(6) NON-PRECEDENT DECISION Page 4 Conclusion In application proceedings, it is the applicant's burden to establish eligibility for the immigration benefit sought. See Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met. ORDER: The appeal is dismissed. 8 C.F.R. § 341.5 Decision. (a) Adjudication. USCIS may adjudicate the application only after the appropriate approving official has reviewed the report, findings, recommendation, and endorsement of the USCIS officer assigned to adjudicate the application. (b) Approval. If the application is granted, USCIS will prepare a certificate of citizenship and, unless the claimant is unable by reason of mental incapacity or young age to understand the meaning of the oath, he or she must take and subscribe to the oath of renunciation and allegiance prescribed by 8 CFR 337 before 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 CFR 103.8 must be made in the United States to the claimant or the acting parent or guardian. (c) Approval pursuant to section 322(d) of the Act. Persons eligible for naturalization pursuant to section 322(d) of the Act may subscribe to the oath of renunciation and allegiance and may be issued a certificate of citizenship outside of the United States, in accordance with 8 U.S.C. 1443a. (d) Denial. If USCIS denies the application, the applicant will be furnished the reasons for denial and advised of the right to appeal in accordance with 8 CFR 103.3. (e) Subsequent application. After an application for a certificate of citizenship has been denied and the time for appeal has expired, USCIS will reject a subsequent application submitted by the same individual and the applicant will be instructed to submit a motion to reopen or reconsider in accordance with 8 CFR 103.5. The motion must be accompanied by the rejected application and the fee specified in 8 CFR 103.7. [76 FR 53804, Aug. 29, 2011] * * * * * * According to paragraph (e), there is no "time limit" on filing a subsequent Motion because a subsequent N-600 may NOT be filed. The difference between the filing of an Appeal rather than an authorized late Motion is a mere matter of semantics and is of no real consequence. To dismiss or reject any I-290B, because of which box is checked on the form, in connection with any N-600 that has been denied, is the most unjust outcome possible and a foolish example of placing form over function or style over substance.