Commentary added by Joseph P. Whalen (June 6, 2012). U.S. Department of Homeland Security e-mail: email@example.com U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) identifying data deleted to 20 Massachusetts Ave., N.W., MS 2090 prevent clearly unwarranted Washington, DC 20529-2090 invasion of personal privacy PUBLlCCOPY DATE: AUG 2 3 2011 Office: LOS ANGELES, CA FILE: IN RE: Applicant: APPLICATION: Application for Certificate of Citizenship under Section 201 of the Nationality Act of 1940; 8 u.s.c. § 601. ON BEHALF OF APPLICANT: This Decision succinctly lists the evidence and explains what it indicates in order to meet the "preponderance of the evidence standard". _____________________________________________ Does the contrary result below indicate (1) a training issue, (2) a poor ability to assess evidence, (3) or is it a INSTRUCTIONS: manifestation of the "Culture of NO!"? Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents related to this matter have been returned to the office that originally decided your case. Please be advised that any further inquiry that you might have concerning your case must be made to that office. ·rry Rhew hief, Administrative Appeals Officehttp://www.uscis.gov/err/E2%20-%20Applications%20for%20Certification%20of%20Citizenship/Decisions_Issued_in_2011/Aug232011_01E2309.pdf www.uscis.gov
Page 2DISCUSSION: The application was denied by the Field Office Director, Los Angeles, California,and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will besustained.The record indicates that the applicant was born on March 20, 1945 in Mexico. The applicants m o t h e r , - was born in California on May 18, 1909. The applicants f a t h e r , -- is not a U.S. citizen. The applicants parents were married in California in 1926. The applicant seeks a certificate of citizenship claiming that she acquired U.S. citizenship at birth through her U.S. citizen mother.The field office director denied the application upon finding that the applicant had failed to establishthat her mother had the required period of residence in the United States. On appeal, the applicant,through counsel, maintains that her mother resided in the United States from birth until December1931. See Appeal Brief at 2. There is no mention of additional evidence being submitted on appeal. There was only a Brief mentioned.The AAO reviews these proceedings de novo. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir.2004). The applicable law for transmitting citizenship to a child born abroad when one parent is aU.S. citizen is the statute that was in effect at the time of the childs birth. See Chau v. Immigrationand Naturalization Service, 247 F.3d 1026, 1028 n.3 (9th Cir. 2001) (internal citation omitted). Theapplicant in the present matter was born in 1945. Section 201 (g) of the Nationality Act of 1940 (theNationality Act), 8 U.S.C. § 601(g), therefore applies to the present case. 1Section 201(g) of the Nationality Act states, in pertinent part, that: A person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who, prior to the birth of such person, has had ten years residence in the United States or one of its outlying possessions, at least five of which were after attaining the age of sixteen years, the other being an alien.The applicant must thus establish that her mother resided in the United States for ten years prior toMarch 20, 1945, five of which were after May 18, 1925 (her sixteenth birthday). The record in thiscase includes, in relevant part, the applicants birth certificate, the applicants mothers birth andbaptismal certificates, the applicants parents marriage certificate, the applicants siblings birth andbaptismal certificates, the applicants mothers returning U.S. citizen manifest, and census records.The applicants mothers birth and baptismal certificates indicate that she was born in California in1909. The 1920 census information indicates that she was residing in California. Her marriage1 The field office director cited section 301 of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1401,as the applicable law. The Act was not in effect at the time of the applicants birth and is thereforeinapplicable.
Page 3 certificate indicates that she was married in California in 1926. Her older children were born in the United States in 1927 and 1930. Finally, her returning U.S. citizen manifest indicates that she resided in the United States until December 1931. The AAO finds that the evidence in the record establishes that the applicants mother resided in the United States for ten years, five of which were after her sixteenth birthday. Section 104 of the Nationality Act of 1940 defined the term "residence" as a place of general abode, the principal dwelling place. There is no indication that the applicants mother departed the United States prior to December 1931. The evidence, including the applicants mothers birth and marriage records, as well as census records and her childrens birth and baptism certificates, consistently indicates that she resided in the United States as required by section 201(g) of the Nationality Act. The applicant has thus established, by a preponderance of the evidence, that her mother resided in the United States for ten years prior to 1945, five of which were after 1925. Thus, the applicant acquired U.S. citizenship at birth through her mother. "There must be strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship." Fedorenko v United States, 449 U.S. 490, 506 (1981). The applicant bears the burden of proof in these proceedings to establish the claimed citizenship by a preponderance of the evidence. Section 341 of the Act, 8 U.S.C. § 1452; 8 CFR § 341.2(c). The applicant has met her burden of proof, and her appeal will be sustained. ORDER: The appeal is sustained.A de novo review of the same record under the correct standard resulted in approval ofthe request. AAO appears simply to have substituted its own judgment for that of theadjudicator below. This is the proper course of action in a de novo review.__________________________________________________________________________Matter of V-K-, 24 I&N Dec. 500 (BIA 2008) held:The Board of Immigration Appeals reviews de novo an Immigration Judge’s prediction or finding regarding the likelihood that an alienwill be tortured, because it relates to whether the ultimate statutory requirement for establishing eligibility for relief from removal has beenmet and is therefore a mixed question of law and fact, or a question of judgment.________________________________________________________________________________________________________________Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008) held, in pertinent part:(2) In determining whether established facts are sufficient to meet a legal standard, such as "well-founded fear," the Board has theauthority to weigh the evidence in a manner different from that accorded by the Immigration Judge, or to conclude that the foundationfor the Immigration Judges legal conclusions was insufficient or otherwise not supported by the evidence of record.________________________________________________________________________________________________________________The AAO reviews de novo the Directors (adjudicators) findings-of-fact regarding theUSC parents residence, because it relates to whether the ultimate statutory requirement forestablishing eligibility has been met, especially as to the USC parents ability to transmitU.S. citizenship to their foreign born child and is therefore a mixed question of law and fact,or a question of judgment. In determining whether established facts are sufficient tomeet a legal standard, the AAO retains the authority to weigh the evidence in amanner different from that accorded by the Director (adjudicator).