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Tracking changes in N-600 11-25-2011

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Positive changes have been made in the handling of these cases.

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Tracking changes in N-600 11-25-2011

  1. 1. Tracking Changes to N-600 Adjudications, Processing, Regulations, and Decisions: A Case In Point -- “Untimely Rejections” by AAOOn August 25, 2010, AAO was treating late-filed, meritless N-600 appeal cases inthe following routine manner and simply rejecting them as untimely.Aug252010_02E2309.pdf “DISCUSSION: The application was denied by the Field Office Director, Oakland Park, Florida, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be rejected as untimely filed. In order to properly file an appeal, the regulation at 8 C.F.R. § 103.3(a)(2)(i) provides that the affected party must file the complete appeal within 30 days after service of the unfavorable decision. If the decision was mailed, the appeal must be filed within 33 days. See 8 C.F.R. §103.5a(b). 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). The record indicates that the field office director issued the decision on June 16, 2009. It is noted that the field office director properly gave notice to the applicant that he had 33 days to file the appeal. See Decision of the Field Office Director. The Form I-290B, Notice of Appeal, was received on July 29, 2009, which was more than 33 days after the decision was issued. Accordingly, the appeal was untimely filed and must be rejected. ORDER: The appeal is rejected.”Beginning with the most recent round of decision postings on www.uscis.gov inlate October 2011, AAO issued some improved formulaic rejections of untimelyfiled Appeals that did not warrant treatment as Motions to Reopen and/orReconsider.They basically look like this: “DISCUSSION: The application was denied by the Field Office Director, [Office Name] and the matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be rejected as untimely filed. Page 1 of 7
  2. 2. In order to properly file an appeal, the regulation at 8 C.F.R. § 103.3(a)(2)(i) provides that the affected party must file the complete appeal within 30 days after service of the unfavorable decision. If the decision was mailed, the appeal must be filed within 33 days. See 8 C.F.R. § 103.5a(b). 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). The record indicates that the director issued the decision on [Date], and properly gave notice to the applicant that he had 33 days to file the appeal. The directors decision specifically informed the applicant that the appeal may not be filed directly with the AAO, but that it had to be filed with the [Named] Field Office. The Form I-290B, Notice of Appeal, was received by the [Named] Field Office on [Date], more than 33 days after the decision was issued. Accordingly, the appeal was untimely filed and must be rejected.FN1 ORDER: The appeal is rejected.”In each of these cases (older and recent), AAO did actually review the Record ofProceeding (ROP) de novo in order to determine if the case met the requirementsto be treated as a Motion. This action is no different than what AAO was routinelydoing for a very long time. AAO found that these cases did not meet either primafacie evidentiary threshold for a Motion.The new development is that AAO has added a footnote in order to clear up thebasis for disposition and make practical use of the effort spent performing that denovo review. This is similar to what would be done for a summary dismissal,except via a footnote rather than in the body of the decision text. This simple stepproperly prepares the record as an administratively final agency decision suitablefor judicial review.The following decisions were located online in late October 2011. No decisionsdated after August 2010, had been posted in over a year and then one additionalDecember 2010, decision (sustained) and the several more dated in 2011, wereadded. Several more 2011 “sustains” or other dispositions are posted along withthe following untimely rejections. Page 2 of 7
  3. 3. The footnote contents are presented below, preceded by a link to that decision.Apr072011_01E2309.pdf 1. Neither the Immigration and Nationality Act nor the regulations grant the AAO authority to extend the 33-day time limit for filing an appeal. The application was denied for failure to establish eligibility for U.S. citizenship under sections 320 or 322 of the Act, 8 U.S.C. § 1431 and 1433. The applicant submitted additional documentary evidence subsequent to his appeal, but no argument or explanation as to how they pertain to the applicants claim of citizenship under the provisions cited or any other section of the Act. The appeal therefore does not meet the requirements of a motion to reopen or reconsider under the regulations at 8 C.F.R. § 103.5(a)(2) and (3) and therefore need not he treated as such. See 8 C.F.R. § 103.3(a)(2)(v)(B)(2).Apr072011_02E2309.pdf 1. Neither the Immigration and Nationality Act nor the regulations grant the AAO authority to extend the 33-day time limit for filing an appeal. The application was denied for failure to submit evidence to demonstrate the applicant was in his fathers legal and physical custody prior to the applicants eighteenth birthday. The appeal is not accompanied by any additional evidence and there is no evidence in the record to establish that the applicant was in his fathers custody. The appeal therefore does not meet the requirements of a motion to reopen or reconsider under the regulations at 8 C.F.R. § 103.5(a)(2) and (3) and therefore need not he treated as such. See 8 C.F.R. § 103.3(a)(2)(v)(B)(2).Apr072011_03E2309.pdf 1. Neither the Immigration and Nationality Act nor the regulations grant the AAO authority to extend the 33-day time limit for filing an appeal. The application was denied, in part, because the applicant was over the age of 18 years when he obtained lawful permanent residence and therefore could not derive U.S. citizenship under former section 321 of the Act. The appeal is not accompanied by any evidence or argument overcoming the applicants statutory disqualification or otherwise indicating that he is eligible for U.S. citizenship under this or any other provision of the Act. The appeal therefore does not meet the requirements of a motion to reopen or reconsider under the Page 3 of 7
  4. 4. regulations at 8 C.F.R. § 103.5(a)(2) and (3) and therefore need not he treated as such. See 8 C.F.R. § 103.3(a)(2)(v)(B)(2).It is noted that on March 1, 2011, an article appeared in Immigration Daily, arespected immigration trade publication found online and sent via e-mail by freesubscription from ILW.com entitled: "Eligibility at the time of filing"Misapplication of Very Specific I&N Decision Holdings and Principles to TooMany Circumstances found at: http://www.ilw.com/articles/2011,0301-whalen.shtmAnother article appeared on September 6, 2011, entitled: Has the Well Run Dry?2011 Seemed Like a Knowledge and Guidance Vacuum So Far With MinimalPostings to USCIS Administrative Decisions on www.uscis.gov BUT Change is inthe Air in Other Matters at USCIS found at:http://www.ilw.com/articles/2011,0906-whalen.shtmIn my July 12, 2011, article entitled: Badly Bungled N-600 Still Did Not WarrantEquitable Estoppel Or Nunc Pro Tunc Approval And a Review Of Division OfStatutory Authority Under the Immigration and Nationality Act and found at:http://www.ilw.com/articles/2011,0712-whalen.shtm I addressed a recent sloppilyprocessed N-600 case. On July 8, 2011, the 5th Circuit Court of Appeals issued apublished decision in Robertson-Dewar v. Holder, No. 09-60847 (5th Cir. July 8,20111). This case involves an individual who was born out-of-wedlock in Jamaicaon June 28, 1980. He was petitioned by his father and immigrated to the U.S. inFebruary 1993. His father naturalized in October 1993. Robertson-Dewar was 13years old at the time that his father naturalized. On January 10, 1996, the fatherfiled a form N-600, Application for Certificate of Citizenship on behalf of his sonwith INS. Robertson-Dewar was around 15 ½ at that time. In Robertson-Dewarscase, his application was not completed before he turned 18 and he lost eligibilityunder that provision of law. This is unfortunate but not at all, unusual. Anyway, thefact is that the father waited 2 ½ years after naturalizing to file an N-600 and thenINS did not reach it for another 2 ½ years.The 5th Circuit stated that... "[i]f estoppel against the government is available, the party seeking estoppel must establish five things: (1) affirmative misconduct by the government, (2) that the government was aware of the relevant facts and (3) intended its act1 http://www.ca5.uscourts.gov/opinions/pub/09/09-60847-CV0.wpd.pdf Page 4 of 7
  5. 5. or omission to be acted upon, (4) that the party seeking estoppel had no knowledge of the relevant facts and (5) reasonably relied on the governments conduct and as a result of his reliance, suffered substantial injury. United States v. Bloom, 112 F.3d 200, 205 (5th Cir. 1997)." At p. 5 Robertson-DewarThe 5th Circuit noted that Robertson-Dewar was told in 1999, that he was NOT acitizen. This applicant knew that he had aged-out when he was an LPR for overfive years, having immigrated in 1993, and when he was just barely over the ageof 18 and therefore fully eligible to seek naturalization by filing an N-400 at thatpoint. He did not do that. Instead, he engaged in the criminal dissemination of childpornography in violation of Pennsylvania law. He was convicted for that in 2002.On December 14, 2006, ICE served Robertson-Dewar with a notice to appear inremoval proceedings. Several days later, on December 18, 2006, the U. S.Citizenship and Immigration Services (USCIS) denied his 1996 application for acertificate of citizenship. Admittedly, and quite obviously, DHS was sloppy at thispoint. Prior to issuing the NTA, ICE should have combed through the A-file anddiscovered the N-600. Not having seen it myself, I can only guess what was found.There may indeed have been an "unadjudicated" N-600 as the 5th Circuit stated, Idoubt that is correct. Later in the same opinion, the Court stated that ... "[Robertson-Dewar] admit[ted] that he was told in 1999 that he was not a citizen, and neither he nor his father adequately followed up on the naturalization application." At p. 6Of course, prior to those articles a comment in response to the N-600 informationcollection found at: http://www.regulations.gov/#!documentDetail;D=USCIS-2006-0023-0026 was posted on December 7, 2010. That comment includedsuggestions on appeal rights and motions and urged that untimely rejects be treatedin a similar manner as summary dismissals among a variety of suggestions. It’snice to know that USCIS (even AAO) will listen to such suggestions even if onlyafter a fight and a lot of sustained pressure.More recently, USCIS subjected the N-600 to another Information CollectionNotice of Tuesday, September 27, 2011, this time as a Form Revision with requestfor comments. In the accompanying required Supporting Statement, standard itemA.8 states: Page 5 of 7
  6. 6. “USCIS will address any comment it receives as a result of the publication of the 60-day notice when it publishes the 30-day notice in the Federal Register”.Under the heading: “Who Should Not File This Form” on the draft revised forminstructions posted on September 27, 2010, along with the Notice , it is nice to seethe addition of an item which reads: “You should not file this form if: ***** 5. You already filed a Form N-600 and received a decision from USCIS on that previously filed Form N-600. USCIS will reject (not accept) any subsequently filed Form N-600. Please review your Form N-600 denial notice for more information.” [Bold is shown in draft version that was offered for comment.]This was long overdue. Something along these lines was suggested previously inDecember 2010. Id. Further comments could lead to more changes, we shall see.On Aug. 29, 2011, DHS published a Final Rule for USCIS with a request forcomments. In that rule entitled: Immigration Benefits Business Transformation,Increment I, the N-600 regulations and numerous other regulations were updated.The types of changes included modifying by: streamlining, repealing, and/orexpanding various controlling regulations in approximately fifty (50) differentCFR Parts. Regarding the N-600, 8 CFR § 341 was revised such that 8 CFR §341.5 was expanded and gobbled-up §§ 341.6 and 341.7. The combined changesare welcome to this observer and often-harsh critic but I still want to see a little bitmore.Ortega v. Holder, et. al, 592 F.3d 738; 2010 U.S. App (7th Cir. 2010)1 provides: “.... Congresss solicitude in providing all others with a means of obtaining a certificate of citizenship either through the general application process or through the removal process evinces Congresss concern that individuals be able to settle, definitively, the issue of citizenship.”..... “As we have discussed in some detail, 8 C.F.R. § 341.6 requires that any subsequent application for citizenship [should] be filed as a motion to reconsider or to reopen. ...” Page 6 of 7
  7. 7. It is noted that § 341.6 has been repealed, this issue is now covered by § 341.5(e)per 76 FR 53764, 53805 (8/29/11), effective Nov. 28, 2011. The new regulation isstill clunky. The 2010 Ortega court in the Seventh Circuit stated it in a moreworkable manner. Hopefully, USCIS can still do some fine tuning before theymove on to other matters. Now is the appropriate time to straighten out thesematters, and settle hyper-technical matters. Clear expectations lead to better andmore competent filings that allow for easier adjudications decided with fairnessand all appropriate due process.Lastly, I wish to express my gratitude to Immigration Daily and the hardworkingstaff there for making immigration advocacy efforts possible. Other articles that Iam most appreciative to have had published in Immigration Daily that helped mein this N-600 advocacy effort in particular, and additional efforts (EB-5 mostly),include the following: An Increasing Need for Joint DOJ-DHS Immigration Rulemaking Found at: http://www.ilw.com/articles/2011,0425-whalen.shtm Badly Bungled N-600 Still Did Not Warrant Equitable Estoppel Or Nunc Pro Tunc Approval And a Review Of Division Of Statutory Authority Under the Immigration and Nationality Act Found at: http://www.ilw.com/articles/2011,0712 Why Do I Make Such A Big Deal About Citizenship Claims? Found at: http://www.ilw.com/articles/2011,0926-whalen.shtm An Open Letter to USCIS Offering A Suggestion For A Generally Applicable USCIS Policy of Fairness Found at: http://www.ilw.com/articles/2011,1019-whalen.shtm Does Lozada Belong in the Immigration Benefits Context? Found at: http://www.ilw.com/articles/2011,1028-whalen.shtmThank you to Immigration Daily!Joseph P. Whalen November 25, 2011 Page 7 of 7

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