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MUSINGS ON THE APPLICATION FOR REPLACEMENT CERTIFICATES

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MUSINGS ON THE APPLICATION FOR REPLACEMENT CERTIFICATES

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MUSINGS ON THE APPLICATION FOR REPLACEMENT CERTIFICATES

  1. 1. Page 1 of 5 MUSINGS ON THE APPLICATION FOR REPLACEMENT CERTIFICATES By Joseph Patrick Whalen (Tuesday, January 19, 2016) The USCIS Form N-565, Application for Replacement Naturalization/Citizenship Document is normally a simple form for USCIS to process. With that said, there is no shortage of folks trying to abuse that process. Inappropriate requests are frequently made in an attempt to commit a fraud. Some folks want to make themselves appear older than they really are so that they can start collecting social security benefits sooner than they are entitled to collect. Some folks seek to make their genuine certificate match someone else’s genuine identity and/or birth documents in order to aid improper entry into the United States, i.e. obtain a passport or just be able to use one lawfully obtained. Perhaps a sibling or cousin wants to “pass” as the real citizen relative. Maybe some want to use another person’s medical benefits to which they are not entitled. I cannot imagine all the possibilities. The reason I decided to write this missive is that I noticed that the AAO non-precedent administrative decisions I was reviewing seemed to be off a little bit. The N-565 decisions cite to INA § 338, [8 U.S.C. § 1449]. See Matter of D-V-M-, ID# 14496 (AAO Nov. 25, 2015).1 That section, § 1449 Certificate of naturalization; contents, states: A person admitted to citizenship in conformity with the provisions of this subchapter shall be entitled upon such admission to receive from the Attorney General2 a certificate of naturalization, which shall contain substantially the following information: Number of application for naturalization; number of certificate of naturalization; date of naturalization; name, signature, place of residence, autographed photograph, and personal description of the naturalized person, including age, sex, marital status, and country of former nationality; location of the district office of the Service in which the application was filed and 1 http://www.uscis.gov/sites/default/files/err/E3%20- %20Application%20for%20Replacement%20of%20Certificate%20of%20Naturalization%20or%20Citizenship%20Pa pers/Decisions_Issued_in_2015/NOV252015_01E3343.pdf 2 The statutory naturalization authority has passed from the Attorney General to the Secretary of Homeland Security. Not all references have been updated yet.
  2. 2. Page 2 of 5 the title, authority, and location of the official or court administering the oath of allegiance; statement that the Attorney General, having found that the applicant had complied in all respects with all of the applicable provisions of the naturalization laws of the United States, and was entitled to be admitted a citizen of the United States of America, thereupon ordered that the applicant be admitted as a citizen of the United States of America; attestation of an immigration officer; and the seal of the Department of Justice. The cited section is helpful as far as it goes but it is not all that need be considered; INA§ 343, [8 U.S.C. § 1454] is more pertinent to the N-565. While § 338 generally describes content, § 343 authorizes replacements. I think that § 343 is often overlooked because the regulation relied upon in the adjudication of the form, or more specifically, denial of the form is 8 C.F.R. § 338.5(a) & (e). First, however, let us look at the overlooked INA section, especially (a) & (c). INA: ACT 343 - DOCUMENTS AND COPIES ISSUED BY THE ATTORNEY GENERAL INA§ 343. [8 U.S.C. § 1454] (a) If any certificate of naturalization or citizenship issued to any citizen or any declaration of intention furnished to any declarant is lost, mutilated, or destroyed, the citizen or declarant may make application to the Attorney General for a new certificate or declaration. If the Attorney General finds that the certificate or declaration is lost, mutilated, or destroyed, he shall issue to the applicant a new certificate or declaration. If the certificate or declaration has been mutilated, it shall be surrendered to the Attorney General before the applicant may receive such new certificate or declaration. If the certificate or declaration has been lost, the applicant or any other person who shall have, or may come into possession of it is hereby required to surrender it to the Attorney General. (b) The Attorney General shall issue for any naturalized citizen, on such citizen's application therefor, a special certificate of naturalization for use by such citizen only for the purpose of obtaining recognition as a citizen of the United States by a foreign state. Such certificate when issued shall be furnished to the Secretary of State for transmission to the proper authority in such foreign state. (c) If the name of any naturalized citizen has, subsequent to naturalization, been changed by order of any court of competent jurisdiction, or by marriage, the citizen may make application for a new certificate of naturalization in the new name of such citizen. If the Attorney General finds the name of the applicant to have been changed as claimed, the Attorney General shall issue to the applicant a new certificate and shall notify the naturalization court of such action.
  3. 3. Page 3 of 5 (d) The Attorney General is authorized to make and issue certifications of any part of the naturalization records of any court, or of any certificate of naturalization or citizenship, for use in complying with any statute, State or Federal, or in any judicial proceeding. No such certification shall be made by any clerk of court except upon order of the court. As mentioned above, the section of the regulation that appears in denials, which is shown below, tracks INA § 338. It relates specifically to requests for corrections to mistakes that appear in certificates delivered to the newly naturalized citizens. 8 C.F.R. §338.5 Correction of certificates. (a) Application. Whenever a Certificate of Naturalization has been delivered which does not conform to the facts shown on the application for naturalization, or a clerical error was made in preparing the certificate, an application for issuance of a corrected certificate may be filed, without fee, in accordance with the form instructions. (b) Court-issued certificates. If the certificate was originally issued by a clerk of court under a prior statute and USCIS finds that a correction is justified and can be made without mutilating the certificate, USCIS will authorize the issuing court to make the necessary correction and to place a dated endorsement of the court on the reverse of the certificate explaining the correction. The authorization will be filed with the naturalization record of the court, the corrected certificate will be returned to the naturalized person, and the duplicate will be endorsed to show the date and nature of the correction and endorsement made, and then returned to USCIS. No fee will be charged the naturalized person for the correction. (c) USCIS-issued certificates. If the certificate was originally issued by USCIS (or its predecessor agency), and USCIS finds that a correction was justified, the correction shall be made to the certificate and a dated endorsement made on the reverse of the certificate. (d) Administrative actions. When a correction made pursuant to paragraphs (b) or (c) of this section would or does result in mutilation of a certificate, USCIS will issue a replacement Certificate of Naturalization and destroy the surrendered certificate. (e) Data change. The correction will not be deemed to be justified where the naturalized person later alleges that the name or date of birth which the applicant stated to be his or her correct name or date of birth at the time of naturalization was not in fact his or her name or date of birth at the time of the naturalization. [76 FR 53803, Aug. 29, 2011]
  4. 4. Page 4 of 5 The alternate statutory section that authorizes replacement certificates anticipates certain reasons for such requests. It anticipates replacement requests when the citizen’s certificate has been lost, mutilated, or destroyed; or when there has been a legal name change after naturalization. The principal difference between the two pertinent sections is the authority to replace a certificate based on the need to correct an error made by the agency free of charge. On the other hand, if the need for a replacement is not because of a mistake in preparation then a fee is required. 8 C.F.R. §343a.1 Application for replacement of or new papers relating to naturalization, citizenship, or repatriation. (a) Lost, mutilated, or destroyed naturalization papers. A person whose declaration of intention, certificate of naturalization, citizenship, or repatriation, or whose certified copy of proceedings under the act of June 25, 1936, as amended, or under section 317(b) of the Nationality Act of 1940, or under section 324(c) of the Immigration and Nationality Act, or under the provisions of any private law, has been lost, mutilated, or destroyed, must apply on the form designated by USCIS with the fee specified in 8 CFR 103.7(b)(1) and in accordance with the form instructions. (b) New certificate in changed name. A naturalized citizen whose name has been changed after naturalization by order of court or by marriage must apply for a new certificate of naturalization, or of citizenship, in the changed name. (c) Adjudication and disposition. (1) Interview. The applicant shall only be required to appear in person for interview under oath or affirmation in specific cases. Those cases which necessitate an interview enabling an officer to properly adjudicate the application at the office having jurisdiction will be determined by USCIS. (2) Approval. If an application for a new certificate of naturalization, citizenship, or repatriation or a new declaration of intention is approved, the new certificate or declaration will be issued and delivered by personal service in accordance with 8 CFR 103.8(a)(2). If an application for a new certified copy of the proceedings under the Act of June 25, 1936, as amended, or under section 317(b) of the Nationality Act of 1940, or under section 324(c) of the Immigration and Nationality Act, or under the provisions of any private law is approved, a certified photocopy of the record of the proceedings will be issued. If, subsequent to naturalization or repatriation, the applicant's name was changed by marriage, the certification of the photocopy will show both the name in which the
  5. 5. Page 5 of 5 proceedings were conducted and the changed name. The new certified copy will be delivered to the applicant in accordance with 8 CFR 103.8(a)(2). (3) Denial. If the application is denied, the applicant shall be notified of the reasons for the denial and of the right to appeal in accordance with 8 CFR 103.3. [23 FR 9125, Nov. 26, 1958, as amended at 32 FR 9635, July 7, 1967; 51 FR 35629, Oct. 7, 1986; 76 FR 53805, Aug. 29, 2011] Lastly, although the above regulation says that a name change means that one “must apply for a new certificate”, there is no such requirement in the INA. That one word is ultra vires and should say “may” apply for a new certificate. That is all for now. Please give it some thought. Dated this 19th day of January, 2016 X Joseph P. Whalen Digitally signed by Joseph P. Whalen DN: cn=Joseph P. Whalen, o, ou, email=joseph.whalen774@gmail.com, c=US Date: 2016.01.19 22:13:50 -05'00'

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