USCIS Transformation Rule comment 7 on N-600 appeal rights
Comment #7 on Business transformation Rule, Increment I, DHS Docket No.USCIS-2009-0022 Comment Tracking Number: 80f12709 submitted 9/6/11On Aug. 29, 2011, DHS published a Final Rule for USCIS with a request forcomments. In that rule, 8 CFR § 341 was revised as shown below such that § 341.5was expanded and gobbled-up §§ 341.6 and 341.7.§ 341.5 Decision.(a) Adjudication. USCIS may adjudicate the application only after the appropriateapproving official has reviewed the report, findings, recommendation, andendorsement of the USCIS officer assigned to adjudicate the application.[Codification of Supervisory Review. I applaud this change because previously a“review” was not mandated, but rather it merely required the “report andrecommendation” be submitted to the district director for signature as toapproval or disapproval but did not require any actual review of the officer’srecommendation.](b) Approval. If the application is granted, USCIS will prepare a certificate ofcitizenship and, unless the claimant is unable by reason of mental incapacity oryoung age to understand the meaning of the oath, he or she must take andsubscribe to the oath of renunciation and allegiance prescribed by 8 CFR 337before 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 CFR103.8 must be made in the United States to the claimant or the acting parent orguardian. [Incorporates former § 341.7.](c) Approval pursuant to section 322(d) of the Act. Persons eligible fornaturalization pursuant to section 322(d) of the Act may subscribe to the oath ofrenunciation and allegiance and may be issued a certificate of citizenship outsideof the United States, in accordance with 8 U.S.C. 1443a. [Completely new.](d) Denial. If USCIS denies the application, the applicant will be furnished thereasons for denial and advised of the right to appeal in accordance with 8 CFR103.3. [Incorporates former § 341.6. I find this to be lacking as it does notplainly and bluntly preclude a Denial Due to Abandonment.](e) Subsequent application. After an application for a certificate of citizenship hasbeen denied and the time for appeal has expired, USCIS will reject a subsequentapplication 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. Themotion must be accompanied by the rejected application and the fee specified in 8CFR 103.7. [Incorporates former § 341.6. I find this akward and inaqdequate.]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 acertificate of citizenship either through the general application process or throughthe removal process evinces Congresss concern that individuals be able tosettle, definitively, the issue of citizenship.”..... “As we have discussed in somedetail, 8 C.F.R. § 341.6 requires that any subsequent application for citizenship[should] be filed as a motion to reconsider or to reopen. ...” [§ 341.6 has beenrepealed, this issue is now covered by § 341.5(e) per 76 FR 53764, 53805(8/29/11), effective Nov. 28, 2011.] The regulation is still clunky. However, thecourt stated it in a more workable manner.In light of the above as well as other cases, the following is offered forconsideration.(e) Subsequent application. After an application for a certificate of citizenship hasbeen denied and the time for appeal has expired, any subsequent application mustbe submitted in the form of a motion to reopen and/or reconsider. Any such motionmust meet the basic legal requirements for that motion as to new evidence, newfacts to be proven; identify any disputed facts or alleged factual errors or allegedmisinterpretations of fact or law; and be supported by argument and/orprecedent(s) or point to changes in the law. USCIS will reject any subsequent newcertificate of citizenship application form submitted by the same individual and theapplicant will be instructed to submit a motion to reopen or reconsider inaccordance with 8 CFR 103.5. The motion must be accompanied by the rejectedapplication and the fee specified in 8 CFR 103.7. If USCIS mistakenly accepts asubsequent application form, USCIS will consider it as a motion and continue1 Found at: http://caselaw.findlaw.com/us-7th-circuit/1497479.html orhttp://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=gdjb&searchTerm=hYKL.gLja.ZCaW.LabT&searchFlag=y&l1loc=FCLOW
processing the citizenship claim. USCIS may bill the applicant for any differencein fee. However USCIS will not refund any difference in fee.(f) Notification of Right to Judicial Review. Upon any Dismissal by AAO based onthe merits of the applicant’s citizenship claim, the decision will include referenceto legal rights potentially available under INA § 360(a) and/or INA § 242(b)(5), asapplicable to that case at the time of that decision. USCIS will also include theoption to file a further motion if that option should be or become available to theapplicant in the future.The above paragrph (f) is not a balnket notification requirement. It contemplatesrejection of appeals and motions filed improperly. Improper filing wouldencompass filings by someone other than an affected party including an attorney oraccredited representative who cannot submit a proper notification form (G-28) forany reason including BIA discipline. Other inproper filings would be thosesubmitted without the required fee or an acceptable fee waiver or a form (G-28, I-290B, N-600, or N-600K) that has not been signed or signed by the incorrect party.