JUN 022014 Office: COLUMBUS, OH
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
APPLICATION: Application for Certificate of Citizenship under Section 320 of the Immigration
and Nationality Act; 8 U.S.C. § 1431.
ON BEHALF OF APPLICANT:
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 http://www.uscis.gov/forms 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.
on R senberg
hief, Administrative Appeals Office
Please see the regulation and comment on the last page!
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.
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,
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
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
(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) The child is residing in the United States in the legal and physical
custody of the citizen parent pursuant to a lawful admission for
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).
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
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 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.
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.