Catch-22 In Action:                 An N-600 Appeal or Motion         Should Never Be Rejected as Untimely Filed;         ...
WOW! Can anybody say “Catch-22”? Do you see what happens when AAO doesnot enter a decision on the merits of the case? This...
The controlling regulation is NOT the one cited in the decision. The regulationspecific to the form and benefit sought ove...
The following is a dissection of that same regulation with commentaryinterspersed.      8 CFR 341.6 Denial of application....
The motion shall be accompanied by the rejected application and the fee specified in 8      CFR 103.7 reduced by the amoun...
Things get even more complicated if the claimant is involved in RemovalProceedings. The existence of concurrent Removal Pr...
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Catch 22 of N-600 Appeals

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Catch 22 of N-600 Appeals

  1. 1. Catch-22 In Action: An N-600 Appeal or Motion Should Never Be Rejected as Untimely Filed; It Should Be Treated as a Motion and Issued a Decisions on the Merits In ALL CasesBelow from: a non-precedent AAO Decisions at: Mar062010_01E2309.pdf DISCUSSION: The application was denied by the Field Office Director, El Paso, Texas. The Administrative Appeals Office (AAO) rejected the subsequent appeal as untimely filed. The applicant has submitted a motion to reconsider. The motion will be rejected. The field office director denied the application on December 11, 2008. On January 14, 2009, applicants counsel filed an appeal seeking review of the directors decision. The AAO rejected the appeal as untimely because it was filed more than 33 days after the issuance of the directors decision. Pursuant to the regulations, any appeal that is not filed within the time allowed must be rejected as improperly filed. 8 C.F.R. § 103.3 (a)(2)(v) (B)(l). The applicant, through counsel, has now submitted a motion seeking reconsideration. As the appeal was rejected by the AAO, there is no decision on the part of the AAO that may be reconsidered in this proceeding. According to 8 C.F.R. § 103.5 (a)(l)(ii), jurisdiction over a motion resides in the official who made the latest decision in the proceeding. The AAO did not enter a decision on the merits in this matter. Because the disputed decision was rendered by the director, the AAO has no jurisdiction over the applicants motion and the motion must be rejected. ORDER: The motion to reconsider is rejected.” 1
  2. 2. WOW! Can anybody say “Catch-22”? Do you see what happens when AAO doesnot enter a decision on the merits of the case? This is an erroneous application ofthe incorrect regulations and AAO did not explain the applicant‟s legal AppealRights at any stage in the processing of this case. “Catch-221 is a satirical, historical novel by the American author Joseph Heller,first published in 1961. The novel, set during World War II in 1943, is frequentlycited as one of the great literary works of the twentieth century. It has a distinctivenon-chronological style where events are described from different characterspoints of view and out of sequence so that the time line develops along with theplot.The novel follows Yossarian, a U.S. Army Air Forces B-25 bombardier, and anumber of other characters. Most events occur while the Airmen of the fictional256th squadron are based on the island of Pianosa, in the Mediterranean Sea westof Italy.Among other things, Catch-22 is a general critique of bureaucratic operation andreasoning. Resulting from its specific use in the book, the phrase "Catch-22" iscommon idiomatic usage meaning "a no-win situation" or "a double bind" of anytype. Within the book, "Catch-22" is a military rule, the self-contradictory circularlogic that, for example, prevents anyone from avoiding combat missions. InHellers own words: „There was only one catch and that was Catch-22, which specified that a concern for ones safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didnt, but if he were sane he had to fly them. If he flew them he was crazy and didnt have to; but if he didnt want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.‟”1 http://en.wikipedia.org/wiki/Catch-22 2
  3. 3. The controlling regulation is NOT the one cited in the decision. The regulationspecific to the form and benefit sought overrides a generally applicable regulation. 8 CFR 341.6 Denial of application. If it is the decision of the district director to deny the application for a Certificate of Citizenship, the applicant shall be furnished the reasons for denial and advised of the right to appeal in accordance with the provisions of 8 CFR 103.3(a). After an application for a Certificate of Citizenship has been denied and the appeal time has run, a second application submitted by the same individual shall be rejected and the applicant instructed to submit a motion for reopening or reconsideration in accordance 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. [50 FR 39649, Sept. 30, 1985]Certain concepts stated in that regulation are of paramount importance to thisprocessing issue. This is buttressed by the supplementary information in theFederal Register Notice when this regulation was promulgated in 1985. Thisregulation was promulgated at 50 FR 39649 (9/30/1985) for the express purpose ofclarifying and affirming "the requirement that a decision be issued and theapplicant be notified in all cases involving a Certificate of Citizenship, andspecifically include cases closed administratively. ..." In other words, every casemust be issued a decision based on the merits. There are practical reasons for this.The AAO Dismissal exhausts the normal administrative review which makes thecase ripe for filing in the U.S. District Court of jurisdiction. AAO routinely fails toinform denied citizenship claimants of this right. From the USCIS side, it is in theagency‟s best interest to only allow fully legally supported and well-reasonedDismissals to be challenged in District or Circuit Courts. I would love to see this case go to court! 3
  4. 4. The following is a dissection of that same regulation with commentaryinterspersed. 8 CFR 341.6 Denial of application. If it is the decision of the district director to deny the application for a Certificate of Citizenship, the applicant shall be furnished the reasons for denial and advised of the right to appeal in accordance with the provisions of 8 CFR 103.3(a).The first sentence addresses the initial agency decision at the local office level.The term district director now officially refers to and fully embraces the ServiceCenter, National Benefits Center, District, and Filed Office Directors. The citedregulation describes the generally applicable appeals procedures for filing therequest for a further review by the AAO. In practical terms, the I-290B issubmitted to the original decision-maker for a second look with whateverarguments and evidence the applicant offers, if any. Only when the originaldecision-maker is standing by their original decisions or reconsiders but still deniesthe claim will the case be forwarded to AAO. If an Appeal is rejected as untimelyby AAO, then whatever the local Director stated is what the Court would review ina Petition filed by the claimant and only peripherally review the AAO dismissal.Does USCIS want this? After an application for a Certificate of Citizenship has been denied and the appeal time has run, a second application submitted by the same individual shall be rejected and the applicant instructed to submit a motion for reopening or reconsideration in accordance with 8 CFR 103.5.After the appeal time has run out, only a Motion may be submitted. Under thegenerally applicable regulation at 8 CFR § 103.5, an untimely appeal only meetsthe requirements of a Motion if supported by argument or evidence. However, thereality of an N-600 is just not that simple. Often, the same evidence will supportthe claim if weighed properly. This is the key factor in most AAO SustainedAppeals. Also, USCIS should be clearly telling applicants that they may not file asecond N-600 in the Denial Decision issued in relation to the first N-600. Any I-290B filed for a denied N-600 should be accepted and decided on the merits. If notapproved, the applicant should be told to file in Court but afforded the option tofile another Motion at anytime in the future if there is a change in the law or trulynew evidence can be offered for review. 4
  5. 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.The same form (I-290B) is used in order to file either an Appeal or Motion and thefee is the same. It seems irrational to reject an appeal as untimely when the sameform can then to be used to file the legally allowed Motion after that. The onlydifference being which box is checked on the form. It is as irrational as allowing(as in not preempting) the filing of a second N-600 just so that it can be rejectedwith instructions to file a Motion. This reinforces the need to clarify the actualAppeal and Motion rights that follow the initial denial by the district director andany AAO dismissals. 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.An N-600 cannot be Administratively Closed as there is no statute or regulationallowing for it, and even if Denied Due to Failure to Prosecute (or Abandonment),the citizenship claimant STILL has Appeal Rights. This is true at both the initialand final agency review stages. When an unsupported, frivolous, or just plainineligible N-600 denial challenge, whether as an Appeal or Motion, is dismissedby AAO, the claimant has a further right of appeal to the District Court. Thecitizenship claimant may seek judicial review of the final agency decision on theircase, by filing a Petition for Declaratory Judgment of U.S. Nationality (orCitizenship) in a U.S. District Court under INA § 360(a) [8 U.S.C. § 1503(a)] andpursuant to 28 U.S.C. § 2201.By dismissing out of hand, and without fully addressing the merits itself orincorporating the prior decision with or without clarifications or modifications,AAO will turn the initial agency decision into the final agency decision for allpractical purposes in the District or Circuit Court review of the matter. This maynot be a wise move. After all, in order to come to the conclusion that an untimelyappeal does not meet the requirements of a motion, AAO has to review the recordof proceeding first. Since AAO is going to the trouble of doing the review, why notstate something substantive? AAO retains the plenary power of de novo review anduses it in all cases anyway. Why not adopt some procedures to make use of that denovo review? 5
  6. 6. Things get even more complicated if the claimant is involved in RemovalProceedings. The existence of concurrent Removal Proceedings would precludeU.S. District Court judicial review under the above section of law and restrictreview to a Petition for Review in a U.S. Circuit Court of Appeals of any RemovalOrder following a BIA Dismissal of an Appeal and/or Motion in relation to theRemoval Order under 8 U.S.C. § 1252(b) [INA § 242(b)]. 6

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