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(b)(6)
U.S. Citizenship
and Immigration
Services
MATTER OF C-M-1-A-
Non-Precedent Decision of the
Administrative Appeals O...
(b)(6)
Matter ofC-M-J-A-
The applicable law for transmitting citizenship to a child born abroad when one parent is a U.S.
...
(b)(6)
Matter ofC-M-J-A-
, Texas, and the Applicant's mother. The Form N-14 and Form I-90, Application by Lawful
Permanent...
Matter ojC-M-J-A-
We further note that the Applicant's older sister was granted a certificate of citizenship on
November 3...
(b)(6)
Date: JUL 14 2014 Office: SAN ANTONIO, TX
INRE: Applicant:
U.S. Department of Homeland Security
U.S. Citizenship an...
(b)(6)
NON-PRECEDENT DECISION
Page 2
DISCUSSION: The Director of the San Antonio District Office (the director) denied the...
U.S. Department of HomelandSecurity
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529-2090
identifying data delet...
DISCUSSION: The application was denied by the District Director, San Antonio, Texas, and is
now before the Administrative ...
indicating that the applicant's mother resided in Texas but frequently traveled to Mexico to visit her
family.
The AAO fin...
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Matter of C-M-J-A-, ID# 15639 (AAO Sept. 28, 2015) inclusive - CITIZENSHIP CASE

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Matter of C-M-J-A-, ID# 15639 (AAO Sept. 28, 2015) inclusive - the two prior AAO decisions are appended. CITIZENSHIP CASE.

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Matter of C-M-J-A-, ID# 15639 (AAO Sept. 28, 2015) inclusive - CITIZENSHIP CASE

  1. 1. (b)(6) U.S. Citizenship and Immigration Services MATTER OF C-M-1-A- Non-Precedent Decision of the Administrative Appeals Office DATE: SEPT. 28, 2015 MOTION OF SAN ANTONIO DISTRICT OFFICE DECISION APPLICATION: FORM N-600, APPLICATION FOR CERTIFICATE OF CITIZENSHIP The Applicant, a native of Mexico, seeks a Certificate of Citizenship. See Immigration and Nationality Act (the Act) § 309(c), 8 U.S.C. § 1409(c). The District Director, San Antonio, Texas, denied the application. The Applicant appealed the decision, which we subsequently dismissed. The Applicant submitted a motion to reopen and reconsider, and we rejected the motion as untimely filed. The matter will be reopened sua sponte. Our previous decision will be withdrawn. The appeal will be sustained and the application approved. The Applicant was born in Mexico on to parents who were not married at the time of her birth. The Applicant's mother was born in the United States on 1965. The Applicant's father was not a citizen of the United States. The Applicant seeks a certificate of citizenship based on the claim that she acquired U.S. citizenship at birth through her mother. In an April 11, 2005, decision, the Director found that the Applicant did not acquire U.S. citizenship at birth under section 309(c) of the Act because she could not establish that her mother was physically present in the United States for a continuous period of one year prior to the Applicant's birth. In our February 11, 2009, decision on appeal, we found that although the record indicated that the Applicant's mother was physically present in the United States prior to the birth ofthe Applicant, the record did not establish that her mother was present for one continuous year. We dismissed the appeal accordingly. The Applicant filed a motion to reopen and reconsider on December 5, 2013. On July 14, 2014, we rejected the motion as being untimely filed. We are now reopening the matter sua sponte. We review these proceedings de novo. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). Because the Applicant was born abroad, she is presumed to be an alien and bears the burden of establishing her claim to U.S. citizenship by a preponderance of credible evidence. See Matter of Baires-Larios, 24 I&N Dec. 467, 468 (BIA 2008). 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)). Matter of C-M-J-A-, ID# 15639 (AAO Sept. 28, 2015) JUL142014_01E2309.pdf Feb112009_03E2309.pdf PLEASE TAKE THE TIME TO SCROLL DOWN. ALL THREE DECISIONS ARE HERE AND THERE ARE IMPORTANT NOTES AT THE END! DOWNLOAD TO USE THE LINKS!
  2. 2. (b)(6) Matter ofC-M-J-A- The applicable law for transmitting citizenship to a child born abroad when one parent is a U.S. citizen is the statute that was in effect at the time of the child's birth. See Chau v. Immigration and Naturalization Service, 247 F.3d 1026, 1028 n.3 (91 h Cir. 2001) (internal citation omitted). The Applicant in the present matter was born in 1980. Section 309(c) of the Act is therefore applicable to her case. Section 309(c) of the Act states, in pertinent part: [A] person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person's birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year. Accordingly, the Applicant must establish that her mother is a U.S. citizen who was physically present in the United States for a continuous period of one year before the Applicant's birth on 1980. The record includes a copy of the Applicant's birth certificate indicating that she was born on 1980 at Mexico. This birth certificate establishes the relationship between the Applicant and her mother. The record also includes a copy of the birth certificate for the Applicant's mother, demonstrating that she was born on 1965 in , Texas. The record therefore reflects that her mother was a U.S. citizen at birth. As such, in order for the Applicant to acquire U.S. citizenship from her mother under section 309(c) of the Act, she must establish that her mother was physical present in the United States for a continuous period of one year between , 1965, the date of the mother's birth, and 1980, the date of the Applicant's birth. In addition to the birth certificates of the Applicant and her mother, the record includes, but is not limited to, the following documentation: school documents for the Applicant's mother and the mother's older sister in Illinois, and in Texas; an affidavit from the father of the Applicant's mother; an affidavit from the older sister of the Applicant's mother; and evidence that the Applicant's older sister was granted a Certificate of Citizenship on November 30, 1992, on the basis that she acquired U.S. citizenship through her mother. We note that the Applicant's mother died on 1992. U.S. Citizenship and Immigration Services (USCIS) records indicate at the time the Applicant's mother was born in 1965 in Texas, the father of the Applicant's mother was working in Illinois, and that the mother of the Applicant's mother was traveling frequently between Texas and Mexico. USCIS records indicate that the mother of the Applicant's mother was admitted to the United States as a lawful permanent resident on October 30, 1967, and resettled with her husband in together with the older sister of the Applicant's mother, who was born in 1963 in 2
  3. 3. (b)(6) Matter ofC-M-J-A- , Texas, and the Applicant's mother. The Form N-14 and Form I-90, Application by Lawful Permanent Resident Alien for Alien Registration Receipt Card, dated between January and March 1968, indicate that the mother ofthe Applicant's mother was residing in Illinois. The sister of the Applicant's mother filed an affidavit in which she states that she and the Applicant's mother lived in with their father for ten years, from 1967 to 1977. She adds that her father and the Applicant's mother made several trips to Texas to visit her paternal grandfather during the year 1971 prior to his death in June, 1971. The record includes a copy of the Public Schools registration card for the Applicant's mother, which indicates that she entered public school in on September 9, 1970. Another Public Schools document demonstrates that, during the 1970-1971 school year, she was in school for 34 3/5 weeks, and present a total of 139 days. The school records initially indicate that the Applicant's mother transferred to a school in Mexico on May 18, 1971. However, they further indicate that she did not transfer, but rather, she reentered public schools on September 8, 1971. The documentation from public schools indicate that she attended first grade during the 1971-1972 school year, and was present for 39 weeks, 147Y2 days; she attended second grade during the 1972-1973 school year, and was present for 38 weeks, 164Y2 days; she attended third grade during the 1973-1974 school year, and was present for 139 weeks, 180Y2 days; and that she attended fourth grade during the 1974-1975 school year, and was present for 21 weeks, 78 days. The affidavit from the sister of the Applicant's mother indicates that she and the Applicant's mother attended public schools until 1974, that they then attended Catholic school for two years, and that they returned to public school in 1977. Evidence in the record includes school documentation for a Catholic school in Illinois indicating that the Applicant's mother attended sixth grade at that school, and documentation from Public Schools indicating that she transferred back to public school from the Catholic school on January 17, 1977, verifying the statements in the affidavit ofthe sister ofthe Applicant's mother. The affidavit of the sister of the Applicant's mother states that she and the Applicant's mother returned to Texas in 1977. The record indicates that the Applicant's mother returned to Mexico in 1978, where she gave birth to the Applicant's older sister. As such, the record reflects that the Applicant has established by a preponderance of the evidence that her mother had at least one year of continuous physical presence in the United States prior to the Applicant's birth. The documentation of the mother of the Applicant's mother, school records, and the affidavit from the sister of the Applicant's mother, all consistently demonstrate that the Applicant's mother was present in the United States in . Illinois from November 1967 until at least December 31, 1970, a period of over three years. In addition, through the affidavit of the sister of the Applicant's mother and school documentation, the Applicant has established by a preponderance of the evidence that her mother resided in the United States in Illinois, from September 1971 until 1977, a period of six years. 3
  4. 4. Matter ojC-M-J-A- We further note that the Applicant's older sister was granted a certificate of citizenship on November 30, 1992 based on her acquiring U.S. citizenship through her mother. Although the fact that the Applicant's older sister obtained a certificate of citizenship is not determinative in the present case, as each case must be evaluated on the basis of the facts and evidence presented, the record indicates that the former U.S. Immigration and Naturalization Service interviewed the Applicant's mother and made an informed decision regarding the mother's physical presence in approving the Applicant's sister's certificate of citizenship. It is the Applicant's burden to establish the claimed citizenship by a preponderance of the evidence. Section 341(a) ofthe Act, 8 U.S.C. § 1452(a); 8 C.P.R.§ 341.2(c). Here that burden has been met. ORDER: The appeal is sustained. Cite as Matter ofC-M-J-A-, ID# 15639 (AAO Sept. 28, 2015) 4
  5. 5. (b)(6) Date: JUL 14 2014 Office: SAN ANTONIO, TX INRE: Applicant: U.S. Department of Homeland Security U.S. Citizenship and Immigration Servi.ce Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washin!!ton. DC 20529-2090 U.S. Citizenship and Immigration Services FILE: APPLICATION: Application for Certificate of Citizenship under Section 309(c) of the Immigration and Nationality Act; 8 U.S.C. § 1409(c). ON BEHALF OF APPLICANT: 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 osenberg hief, Administrative Appeals Office www.uscis.gov This decision is just flat out WRONG on so many levels! Please see my article from August 2011: Just Say NO to Untimely Rejection of N-600 Appeals at: http://www.slideshare.net/BigJoe5/just-aay-no-to-untimely-rejection-of-n600-appeals
  6. 6. (b)(6) NON-PRECEDENT DECISION Page 2 DISCUSSION: The Director of the San Antonio District Office (the director) denied the Application for Certificate of Citizenship (Form N-600) and the matter came before the Administrative Appeals Office (AAO) on appeal. The AAO dismissed the appeal and the applicant has filed a joint motion to reopen and reconsider the AAO's decision. The motion will be dismissed as untimely. The regulation at 8 C.F.R. § 103.5(a)(l)(i) provides that a motion to reopen or reconsider must be filed by the affected party within 30 days of the adverse decision. If the decision was mailed, the motion must be filed within 33 days. The date of filing is not the date of mailing, but the date of actual receipt. See 8 C.F.R. § 103.2(a)(7)(i). Neither the Act nor the pertinent regulations grant the AAO authority to extend this time limit with respect to motions to reconsider. Failure to file a timely motion to reopen "may be excused ... where it is demonstrated that the delay was reasonable and was beyond the control of the applicant ...." 8 C.F.R. § 103.5(a)(l)(i). We issued our decision in this case was issued on February 11, 2009, at which time we properly gave notice to the applicant that she had 30 days to file a motion. The instant joint motion was filed on December 5, 2013, almost four years after issuance of our decision dismissing the appeal. Accordingly, the motion was untimely filed. As noted above, we may not excuse the late filing of a motion to reconsider; however, a filing delay for a motion to reopen may be excused at our discretion if the applicant demonstrates that the delay was reasonable and beyond her control. Here, neither counsel nor the applicant explains why the motion is being filed almost four years after our last decision. Accordingly, as the joint motion to reopen and reconsider was untimely filed, we must dismiss it for failing to meet applicable requirements. 8 C.F.R. § 103.5(a)(4). ORDER: The joint motion to reopen and reconsider is dismissed. Our prior decision dismissing the appeal, dated February 11, 2009, is affirmed. The Form N-600 remains denied. This entire decision was erroneous because it relied on the wrong regulations and is ultra vires to the statute. . 8 U.S.C. §1452. Certificates of citizenship or U.S. non-citizen national status; procedure . (a) Application to 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 Attorney General for a certificate of citizenship. Upon proof to the satisfaction of the 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 Attorney General with a certificate of citizenship, but only if such individual is at the time within the United States.
  7. 7. U.S. Department of HomelandSecurity 20 Massachusetts Ave., N.W., Rm. 3000 Washington, DC 20529-2090 identifying data deletedto prevent c!ea.ly unwel-i-anted invzsion of pc~oxaIprivacy U.S. Citizenship and Immigration Services IN RE: APPLICATION: Application for Certificate of Citizenship under Sections 309(c) of the Immigration and Nationality Act; 8 U.S.C. !j 1409(c). ON BEHALF OF APPLICANT: INSTRUCTIONS: This is the decision of the Administrative Appeals Office in your case. All documents have been returned to the office that originally decided your case. Any further inquiry must be made to that office. If you believe the law was inappropriately applied or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for the specific requirements. All motions must be submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 days of the decision that the motion seeks to reconsider $ 103.5(a)(l)(i). Administrative Appeals Office 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] <<<---- This poorly written regulation attempted to codify clerical processing procedures. It was a mistake but it was an attempt to push citizenship claim cases to the point of being decided on the merits as much as humanly possible.It is pointless to make them file new N-600s just so they can be rejected and told to file a motion. Late Appeals MUST always be treated as untimely motions in citizenship claim cases and it is better to do away with any time limit on motions in citizenship claim cases. WRONG REGULATIONS!
  8. 8. DISCUSSION: The application was denied by the District Director, San Antonio, Texas, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The record reflects that the applicant was born on February 6, 1980 in Mexico. The applicant birth certificate indicates that her parents were a n d . The applicant's parents were married in Texas in July 1980. The applicant's mother was born in Texas on October 29, 1965. The applicant seeks a certificate of citizenship based on the claim that she acquired U.S. citizenship at birth through her late mother. The district director denied the applicant's citizenship claim upon finding that the applicant had failed to establish that her mother had the required continuous physical presence in the United States. The applicationwas accordingly denied. On appeal, the applicant states, in relevant part, that the director's denial "is based on erroneous facts and misleading testimony." See Statement of Applicant on Form I-290B, Notice of Appeal to the AAO. The applicant indicates, through counsel, that additional evidence or a brief will be submitted within 60 days, on or about July 12, 2005. The record does not contain any appellate brief or additional evidence. The record does indicate, however, that the director attempted to obtain additional evidence from the applicant but that the applicant, throug appeal proceed on the basis of the record "as is." See E-mail from dated February 8,2008. "The applicable law for transmitting citizenship to a child born abroad when one parent is a U.S. citizen is the statute that was in effect at the time of the child's birth." Chau v. Immigration and Naturalization Service, 247 F.3d 1026, 1029(9thCir. 2000) (citations omitted). The applicant in this case was born in 1980. Because the applicant was born out of wedlock, section 309(c) of the Immigrationand Nationality Act (the Act), 8 U.S.C. 3 1409(c),applies to her case. Section309(c) of the Act, 8 U.S.C. 3 1409(c),provides, in relevant part, a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person's birth, and if the other had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year. The record contain the following documentary evidence relating to the applicant's mother physical presence in the United States prior to February 1980: 1) her birth certificate, 2) a copy of her social security earnings statement indicating income for the year 1979, 3) a statement from the applicant's maternal grandfather indicating that the applicant's mother "was living with [him] since she was born," 4) her junior high school identification card and a letter verifying that she attended during the 1978-79 school year, 5) her social securit card 6) undated employee identification cards from . and a n d 7) the applicant's father's sworn statement
  9. 9. indicating that the applicant's mother resided in Texas but frequently traveled to Mexico to visit her family. The AAO finds that the applicant has not met her burden to establish the one year of continuous physical presence in the United States required by section 309(c) of the Act, 8 U.S.C. § 1409(c). Although the record suggests that the applicant's mother was physically present in the United States prior to the applicant's birth in 1980, there is no evidence that she was present for one continuous year. In fact, the record indicates that the applicant's mother traveled to Mexico every two weeks while she lived with her father in Texas. Her attendance at a Texas school during the 1978-79 school year does not demonstrate that she was present in the United States for one continuous year. A person may only obtain citizenship in strict compliance with the statutory requirements imposed by Congress. INS v. Pangilinan, 486 U.S. 875, 885 (1988). Even courts may not use their equitable powers to grant citizenship, and any doubts concerning citizenship are to be resolved in favor of the United States. Id. at 883-84; see also United States v. Manzi, 276 U.S. 463, 467 (1928) (stating that "citizenship is a high privilege, and when doubts exist concerning a grant of it ... they should be resolved in favor of the United States and against the claimant"). Moreover, "it has been universally accepted that the burden is on the alien applicant to show his eligibility for citizenship in every respect." Berenyi v. District Director, INS, 385 U.S. 630,637 (1967). 8 C.F.R. tj 341.2(c) provides that the burden of proof shall be on the claimant to establish the claimed citizenship by a preponderance of the evidence. In order to meet this burden, the applicant must submit relevant, probative and credible evidence to establish that the claim is "probably true" or "more likely than not." Matter of E-M-,20 I&N Dec. 77,79-80 (Comm. 1989). Section 309(c) of the Act, 8 U.S.C. tj 1409(c), requires that the applicant establish that she was born out-of-wedlock to a U.S. citizen mother who had been physically present in the United States for a continuous period of one year. The AAO concludes that the applicant has failed to meet her burden to establish eligibility for citizenship under this or any other provision of the Act.' The appeal will therefore be dismissed. ORDER: The appeal is dismissed. I The director properly noted that the applicant is also ineligible for citizenship under section 301 of the Act, 8 U.S.C. 5 1401,because her mother was 14years old when the applicant was born (and therefore cannot establish that she had the required physical presence in the United States after the age of 14, but prior to the applicant's birth).

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