N 600 Standard of Review REVISED 1-3-12


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N 600 Standard of Review REVISED 1-3-12

  1. 1. So, an N-600 gets denied, what’s next?Following the denial of a form N-600, Application for Certificate of Citizenship one has the rightto appeal the decision. USCIS might not currently explain that fully in its decisions.8 CFR 103.3 Denials, appeals, and precedent decisions.(a) Denials and appeals —(1) General —(i) Denial of application or petition. When a Serviceofficer denies an application or petition filed under §103.2 of this part, the officer shall explain inwriting the specific reasons for denial. If Form I–292 (a denial form including notification ofthe right of appeal) is used to notify the applicant or petitioner, the duplicate of Form I–292constitutes the denial order.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 inaccordance with the provisions of 8 CFR 103.3(a). After an application for a Certificate ofCitizenship has been denied and the appeal time has run, a second application submitted by thesame individual shall be rejected and the applicant instructed to submit a motion for reopening orreconsideration in accordance with 8 CFR 103.5. The motion shall be accompanied by therejected application and the fee specified in 8 CFR 103.7 reduced by the amount of the fee paidwith the rejected application. A decision shall be issued with notification of appeal rights in allCertificate of Citizenship cases, including any case denied due to the applicants failure toprosecute the application. {This last sentence does not limit appeal rights to those described in8 CFR § 103.3(a), it is void of any legal reference. The first sentence addresses denials issuedby the district director thus implying that administrative appeals must be exhausted first as isthoroughly recognized by the courts and supported by the APA [5 USC]. The last sentencedoes not absolve the AAO from further explaining legal appeal rights available from that pointonward rather, it instructs them to do so. Following the Dismissal of an Appeal or Motion bythe AAO, an applicant is afforded further rights to judicial review by one of two means. First,if the applicant is merely seeking a determination of United States Nationality (Citizenship)then they may file a "Petition for a Judicial Declaration of United States Nationality" inaccordance with INA § 360(a) [8 USC § 1503(a)] pursuant to 28 USC § 2201, with the U.S.District Court of jurisdiction. Secondly, if the claim to U.S. nationality/citizenship arose whilein ,or as an issue in, Removal Proceedings, the applicant may seek a review of that claim as apart of their "Petition for Review of a Removal Order" under INA § 242(b)(5) [8 USC §1252(b)(5)] before the U.S. Circuit Court of Appeals of jurisdiction. The concept of advisingapplicants of their judicial appeal rights by AAO is not unprecedented, they routinely do sowhen denying certain forms N-565, Application for Replacement Naturalization/CitizenshipDocument.}{Emphasis and commentary liberally added throughout.}[50 FR 39649, Sept. 30, 1985] 1
  2. 2. If one disagrees with the N-600 Denial decision they may file an appeal on Form I-290B, withfee, and with any additional evidence to be considered and/or a brief identifying specifically anyerroneous conclusion of law or statement of fact along with legal references and/or specifyingthe evidence that they believe was misinterpreted with an explanation of the facts and evidenceas they interpret them.An appeal to the AAO must be filed with the office that made the decision within 30 days of thedate of the Denial Notice for personal service, 33 days if received by mail. The AAO does nothave the capacity to accept payments and they do not have the file in question. Also, anysubmission will be returned to the original Officer that decided the case (or another one if thatone is unavailable or no longer there) to see if the case can be readily approved without anymajor legal interpretation involved.If an appeal is not filed within the time allowed, a new N-600 may not be filed see 8 CFR §341.6. Instead, if at a later date the applicant wishes to pursue the citizenship claim anew, theymay file, pursuant to 8 CFR § 341.6, a form I-290B, with the current fee as of the date of thatfiling, for:1.) a late Motion to Reopen with additional evidence and/or,2.) a late Motion to Reconsider along with a brief identifying specifically any erroneousconclusion of law or statement of fact, along with legal references, and/or identifying theevidence that they believe was misinterpreted with an explanation of the facts as they interpretthem.The applicant must exhaust the administrative appeal process afforded under the law by firstappealing to the AAO (USCIS Administrative Appeals Office) before they may seek judicialreview of the agency decision in the case, which would be to file a lawsuit in a U.S. DistrictCourt under INA § 360(a) [8 U.S.C. § 1503(a)] and pursuant to 28 U.S.C. § 2201.The existence of concurrent Removal Proceedings would preclude U.S. District Court judicialreview under the above cited section and restrict review to a Petition for Review in a U.S. CircuitCourt of Appeals of any Removal Order following a BIA Dismissal of a Removal Order under 8USC § 1252(b) [INA § 242(b)].N-600 Standard of Review for the Initial Decision and before the AAOClaim to USC At Birth Abroad:―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 childs birth.‖ Chau v. Immigration andNaturalization Service, 247 F.3d 1026, 1029 (9th Cir. 2000) (citations omitted).Derivative Citizenship Claim through Parents’ Naturalization:The applicable law for derivative citizenship purposes is "the law in effect at the time the criticalevents giving rise to eligibility occurred." Minasyan v. Gonzales, 401 F.3d 1069, 1075 (9th Cir. 2
  3. 3. 2005); accord Jordon v. Attorney General, 424 F.3d 320, 328 (3rd Cir. 2005).Evidentiary Burden and Burden of Proof:"There must be strict compliance with all the congressionally imposed prerequisites to theacquisition of citizenship." Fedorenko v. United States, 449 U.S. 490, 506 (1981). 8 C.F.R. §341.2(c) provides that the burden of proof shall be on the claimant to establish the claimedcitizenship by a preponderance of the evidence. In order to meet this burden, the applicant mustsubmit 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).A person may only obtain citizenship in strict compliance with the statutory requirementsimposed by Congress. INS v. Pangilinan, 486 U.S. 875, 884 (1988). Moreover, "it has beenuniversally accepted that the burden is on the alien applicant to show his eligibility forcitizenship in every respect" and that any doubts concerning citizenship are to be resolved infavor of the United States. Berenyi v. District Director, INS, 385 U. S. 630, 637 (1 967). Theapplicant must meet this burden by establishing the claimed citizenship by a preponderance ofthe evidence. 8 C.F.R. § 341.2(c).Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010) held, in pertinent part: (3) In most administrative immigration proceedings, the applicant must prove by a preponderance of evidence that he or she is eligible for the benefit sought.1 (4) Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is ―more likely than not‖ or ―probably‖ true, the applicant has satisfied the standard of proof. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm‘r 1989), followed. (5) If the director can articulate a material doubt, it is appropriate for the director to either request additional evidence or, if that doubt leads the director to believe that the claim is probably not true, deny the application or petition.―Going on record without supporting documentary evidence is not sufficient for purposes ofmeeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm.1972)).‖2Unsubstantiated assertions, improbable inferences, and unsupported speculation are notcompetent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert.denied, 513 U.S. 871 (1994).1 Although not footnoted in the Precedent Decision, for the source of that see U.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987) (defining ―morelikely than not‖ as a greater than 50 percent probability of something occurring).2 http://www.uscis.gov/err/D2%20-%20Temporary%20Worker%20in%20a%20Specialty%20Occupation%20or%20Fashion%20Model%20(H-1B)/Decisions_Issued_in_2010/May282010_18D2101.pdf 3
  4. 4. Specific Requirements:Because the applicant was born abroad, she is presumed to be an alien and bears the burden ofestablishing her claim to U.S. citizenship by a preponderance of credible evidence. See Matter ofBaires-Larios, 24 I&N Dec. 467, 468 (BIA 2008).Section 309(c) of the Act, 8 U.S.C. § 1409(c), requires that the applicant establish that he wasborn out of wedlock to a U.S. citizen mother who had been physically present in the UnitedStates for a continuous period of one year.―Both the director and counsel erred by applying the so-called "Fleuti doctrine" to evaluatewhether the applicants departures were interruptive of his physical presence in the United States.As noted above, the field office director and counsel relied on a 1963 Supreme Court decision,Rosenberg v. Fleuti, 374 U.S. at 449, in addressing whether the applicants numerous tripsabroad were "meaningfully interruptive" or "significant." The AAO notes that the Fleutidecision, and the doctrine of "brief, casual, and innocent" departures, was nullified by theenactment of section 301(a) of the Illegal Immigration Reform and Immigrant Responsibility Actof 1996, Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-575 ("IIRIRA"). The Fleuti doctrine,with its origins in the no longer existent statutory definition of "entry," did not survive as ajudicial doctrine beyond the enactment of IIRIRA. Matter of Collado, 21 I&N Dec. 106 1, 1065(BIA 1998). Accordingly, the director erred when he weighed whether the applicants absenceswere meaningful and significant.‖3―The term "legal separation" in the context of derivative citizenship means either a limited orabsolute divorce obtained through judicial proceedings. Matter of H, 3 I&N Dec. 742, 743-44(Cent. Office 1949). See Morgan v. Attorney General, 432 F.3d 226, 233 (3d Cir. 2005) (findingno legal separation absent a judicial decree); Nehme v. INS, 252 F.3d 415,426 (5th Cir. 2001)(finding that "in the United States, the term ‗legal separation‘ is uniformly understood to meanjudicial separation") (emphasis in original).‖4―Legal custody vests by virtue of "either a natural right or a court decree". See Matter ofHarris, 15 I&N Dec. 39, 41 (BIA 1970). The applicants parents divorce document does notaddress the issue of the applicants custody. In the absence of a judicial determination orgrant of custody in a case of a legal separation of the naturalized parent, the parent havingactual, uncontested custody of the child is to be regarded as having "legal custody." SeeMatter of M, 3 I&N Dec. 850,856 (BIA 1950). The record indicates that the applicantimmigrated to the United States to reside with her father. The Board of Immigration Appeals(Board) has held that "[u]nless there is evidence to show that the father of a legitimated childhas been deprived of his natural right to custody, he will be presumed to share custody withthe mother." Matter of Rivers, 17 I&N Dec. 419, 422-23 (BIA 1980) (stating the presumption"that the father has not been divested of his natural right to equal custody in the absence ofaffirmative evidence indicating otherwise."). Here, there is no evidence that the applicantsfather was deprived of his custody of the applicant after she immigrated to the United States.3An N-470 Decision at: http://www.uscis.gov/err/E1%20-%20Application%20to%20Preserve%20Residence%20for%20Naturalization/Decisions_Issued_in_2009/Feb022009_01E1316.pdf4 See: May182010_03E2309.pdf 4
  5. 5. The AAO therefore finds that the applicants father had actual, uncontested custody of theapplicant following the applicants parents divorce. The applicant therefore has fulfilled theconditions for derivative citizenship required in former section 321 (a)(3) of the Act.‖5 ―The legislative history of INA § 321 indicates that ―Congress enacted the provision toensure that only those alien children whose real interests were located in America with theircustodial parent, and not abroad, should be automatically naturalized.‖ Bustamante-Barrera v. Gonzales, 447 F.3d 388, 397 (5th Cir. 2006), cert. denied, 547 U.S. 1205 (2006); see alsoH.R. Rep. No. 82-1365, reprinted in 1952 U.S.C.C.A.N. 1653, 1680. In Bustamante-Barrera, theFifth Circuit construed the section of § 321(a)(3) that stated ―the naturalization of the parenthaving legal custody when there has been a legal separation of the parents ...‖ as requiring thenaturalizing parent to have sole as opposed to joint legal custody. Bustamante-Barrera, 447 F.3dat 396. The Bustamante-Barrera court further reasoned that Congress chose to use the singularform, ―parent,‖ to describe the person having custody, which ―leaves no room to dispute that,when only one of the two legally separated parents is a naturalized U.S. citizen, that parent is theone who must have legal custody.‖ Id. Thus, a petitioner who was in the sole physical custody ofhis mother, but subject to joint legal custody of both parents under the divorce decree, did notderive citizenship at the time of his mother‘s naturalization under INA § 321. Id. at 398-99. The dispute in the instant case centers around the requirement of INA § 321 that thenaturalized parent must have legal custody of the child seeking derivative citizenship. Petitioneris unable to establish that he was in the legal custody of his father, who was the only parent whowas naturalized prior to Garcia‘s eighteenth birthday. The Dominican divorce decree submittedto the Immigration Court provides that personal guardianship of Garcia was granted to hismother. See Divorce Certificate Extract at Ex. F. That decree does not provide that petitioner‘sfather had joint or sole custody of the five minor children (including petitioner) listed on thedivorce decree. According to the decree, the only judicial determination made with respect topetitioner is that guardianship was granted to his mother, but there is no provision that his fatherassumed any rights or responsibilities regarding care and custody of the children. It is apparentfrom the record that Garcia was in the custody of his mother after the divorce.‖6 ―The AAO may, in its discretion, use as advisory opinion statements submitted as experttestimony. However, where an opinion is not in accord with other information or is in any wayquestionable, the AAO is not required to accept or may give less weight to that evidence. Matterof Caron International, 19 I&N Dec. 79 1 (Comm. 1 988).‖7―Neither the statute nor regulations allow for the acceptance of a labor certification obtainedsubsequent to the filing of the petition. The petitioner must establish eligibility at the time offiling the nonimmigrant visa petition. 8 C.F.R. § 103.2(b)(l). A visa petition may not beapproved at a future date after the petitioner or beneficiary becomes eligible under a new set offacts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978).‖ 85 http://www.uscis.gov/err/E2%20-%20Applications%20for%20Certification%20of%20Citizenship/Decisions_Issued_in_2010/Aug312010_02E2309.pdf6 Garcia v. Heron, No. 09-CV-416, 2009 WL 3231924 (W.D.N.Y. Oct. 1, 2009) http://law.justia.com/cases/federal/district-courts/new-york/nywdce/1:2009cv00416/73728/117 http://www.uscis.gov/err/D2%20-%20Temporary%20Worker%20in%20a%20Specialty%20Occupation%20or%20Fashion%20Model%20(H-1B)/Decisions_Issued_in_2010/May282010_18D2101.pdf This same blurb is in multiple decisions.8 http://www.uscis.gov/err/D2%20-%20Temporary%20Worker%20in%20a%20Specialty%20Occupation%20or%20Fashion%20Model%20(H-1B)/Decisions_Issued_in_2010/May112010_01D2101.pdf 5
  6. 6. Powers Beyond AAO’s Authority:―The AAO, like the Board of Immigration Appeals, is without authority to apply the doctrine ofequitable estoppel so as to preclude a component part of USCIS from undertaking a lawfulcourse of action that it is empowered to pursue by statute or regulation. See Matter ofHernandez-Puente, 20 I&N Dec. 335, 338 (BIA 1991). Res judicata and estoppel are equitableforms of relief that are available only through the courts. The jurisdiction of the AAO is limitedto that authority specifically granted to it by the Secretary of the United States Department ofHomeland Security. See DHS Delegation Number 0150.1 (effective March 1, 2003); see also 8C.F.R. § 103.1 (f)(3)(E)(iii) (as in effect on February 28, 2003) [and subsequent amendments,this includes N-600‘s]. Accordingly, the AAO has no authority to address the petitionersequitable estoppel and res judicata claims.‖9―Even if the applicants assertions regarding the delays in his fathers naturalization and his ownapplication were true, the AAO is without authority to apply the doctrine of equitable estoppel toapprove an application for derivative citizenship nunc pro tunc.‖10On JurisdictionThe jurisdiction of the AAO is limited to that authority specifically granted to it by the Secretaryof the United States Department of Homeland Security. See DHS Delegation Number 0150.1(effective March 1, 2003). Delegations that pertain to the Secretary‗s powers under the INA arecovered at least in part by 8 CFR Part 100, but gaps remain to be filled. FOIA submitted 3/14/11.The AAO exercises appellate jurisdiction over the matters described in 8 CFR § 103.1(f)(3)(iii)(as in effect on February 28, 2003), with two exceptions: (1) petitions for approval of schoolsand the appeals of denials of such petitions are the responsibility of Immigration and CustomsEnforcement; and (2) applications for S nonimmigrant status are the responsibility of the Officeof Fraud Detection and National Security of U.S. Citizenship and Immigration Services.―The AAO does not have appellate jurisdiction over an appeal from the denial of an applicationfor adjustment of status under section 245(a) of the Immigration and Nationality Act (the Act). 8C.F.R. § 245.2(a)(5)(ii).‖11―The AAO has jurisdiction to review denials of applications for adjustment of status filed byaliens seeking the bona fide marriage exemption and aliens in U or T nonimmigrant status.Section 245(e), (1) and (m) of the Act, 8 U.S.C. § 1255(e), (I), (m); 8 C.F.R. §§ 245.l(c)(8)(viii),245.23(i), 245.24(0(2). The AAO has no jurisdiction to review denials of applications foradjustment of status under section 245(a) of the Act. 8 C.F.R. § 245.2(a)(5)(ii).‖ 129 A non-precedent AAO Administrative Decision pertaining to an I-140, Immigrant Petition for Alien Worker, as a Member of the ProfessionsHolding an advanced Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration and Nationality Act, 8 U.S.C.§1153(b)(2). See: Apr282009_01B5203.pdf on www.uscis.gov10 From the most recent non-precedent AAO Decision on an N-600 at: May192010_01E2309.pdf at www.uscis.gov11 http://www.uscis.gov/err/A1%20-%20Certification/Decisions_Issued_in_2010/Apr262010_01A1245.pdf12 Id. 6
  7. 7. On Motions to ReconsiderFrom the 11th Circuit on January 3, 2012: ―A motion to reconsider presented to the BIA ―shall state the reasons for the motion byspecifying the errors of fact or law in the prior Board decision and shall be supported bypertinent authority.‖ 8 C.F.R. § 1003.2(b)(1); INA§ 240(c)(6)(C), 8 U.S.C. § 1229a(c)(6)(C). However, we have held that a motion that merely republishes the reasons that had failed to convince the tribunal in the first place gives the tribunal no reason to change its mind. Therefore, merely reiterating arguments previously presented to the BIA does not constitute ‗specifying . . . errors of fact or law‘ as required for a successful motion to reconsider.Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1329 (11th Cir. 2007) (alteration,quotations, and citation omitted).‖1313 Alvarez v. U.S. Att’y Gen., No. 11-11384 (11th Cir., 1/3/12) http://www.ca11.uscourts.gov/unpub/ops/201111384.pdf 7