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Why make such a big deal about citizenship claims rev 9 15-2011 jpw

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Processing needs work top to bottom and across agencies: DHS, DOS, & DOJ. From initial assertion of a claim through administrative appellate review and on to judicial review.

REVISED: added link to overturned AAO decision.

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Why make such a big deal about citizenship claims rev 9 15-2011 jpw

  1. 1. Why Do I Make Such A Big Deal About Citizenship Claims?People may wonder why I make such a big deal about citizenship claims andespecially the proper initial processing, proper appellate review, and judicial review ofthose claims. Well, here’s why. I care about due process rights.My stance does not mean that due process should ever equate to endless process. Ibelieve in finality and I fully advocate for procedural reforms such that decisions oncitizenship claims will always be geared towards reaching finality but only on themerits. As things have been working through the present time, finality is sometimeshard to come by. AAO does not routinely (or ever in my experience) advise deniedclaimants of their right to judicial review of their citizenship claim. Instead, AAOroutinely tells them that they can file further Motions or sometimes has actually, quiteincorrectly, told people to file a new N-600, which is not allowed under theregulations, at least since 1985.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 process2 or through theremoval process evinces Congresss concern that individuals be able to settle,definitively, the issue of citizenship.”..... “As we have discussed in some detail, 8C.F.R. § 341.6 requires that any subsequent application for citizenship [should] befiled as a motion to reconsider or to reopen. ...” [§ 341.6 has been repealed, this issueis now covered by § 341.5(e) per 76 FR 53764, 53805 (8/29/11), effective Nov. 28,2011.] The regulation is still clunky. However, the court stated it in a moreworkable manner.In light of the above as well as numerous other cases, the following is offered forconsideration. Some simple basic rules would help:  Always issue a decision based on the merits of the case presented.1 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=FCLOW2 The Court is referring to the N-600 filed with USCIS. AAO dismissed: http://www.uscis.gov/err/E2%20-%20Applications%20for%20Certification%20of%20Citizenship/Decisions_Issued_in_2007/Aug172007_05E2309.pdf
  2. 2.  Never dismiss a citizenship claim for lack of prosecution or deny due to abandonment.  Always explain what course lies ahead in the process based on the current record in the case at that stage of the process: appeal, motion, one or the other path to judicial review or, any combination thereof. (If AAO denies or dismisses and the claimant winds up back in Removal Proceedings but those Proceedings ultimately end in something other than removal, ... What then?)  All initial agency decisions should have a mandatory supervisory review whether that decision is to approve or deny.  If an initial agency decision is to deny the case based on (a) complex or novel question(s) of fact or law, or presents a matter of first impression; certify the case to AAO. (The Director or designee has the authority to require certification in any class of case that he chooses to define for such purpose.)  If an initial agency decision is to deny the case based on a solid legal foundation, the local office should issue the denial and notify of administrative appeal rights and potential motion possibilities at a future date. (Remember that a change in the law may be reason enough to file a Motion.) Matter of G-D-, 22 I&N Dec. 1132 (BIA 1999)3 held: “In order for a change in the law to qualify as an exceptional situation that merits the exercise of discretion by the Board of Immigration Appeals to reopen or reconsider a case sua sponte, the change must be fundamental in nature and not merely an incremental development in the state of the law.”  If the initial agency decision is based on a lack of evidence, advise of appeal and motion rights.  The local office should not advise of judicial review options, only AAO should so advise. Even if the claimant is in Removal Proceedings, AAO should have a chance to render a decision as this could either serve as the official administrative decision on behalf of the government OR lead to the affirmative end of the Removal Proceedings. Upon communication of USCIS’ recognition of citizenship to the IJ, the IJ can then confidently terminate proceedings, with prejudice for all time.3 The whole decision is 13 pages long and found at: http://www.justice.gov/eoir/vll/intdec/vol22/3418.pdf
  3. 3.  Any administrative Appeal should first be reviewed at the local office to see if it meets the requirements of a Motion and whether favorable action is warranted4. o If favorable action is warranted, great, end of story. o If favorable action is not warranted in the opinion of the local officials, routinely/automatically send an Appeal (with recommendations) or, certify the Dismissal of a Motion, to AAO.  AAO should always have a complete record of proceeding.  If AAO upholds a denial or dismissal, advise of judicial review rights via the two potential pathways. o INA § 360(a) provides for U.S. District Court review and declaratory judgment from an N-600 denial that does not involve an actively concurrent Removal Proceeding. o INA § 242(b)(5) allows for one to pursue a nationality/citizenship claim in a Petition for Review of an Order of Removal in a Circuit Court of Appeals.  One last point, there are justifiable reasons to dismiss or reject a claim quickly and without substantial consideration. Untimely filing, however, is not one of them. I don’t think anyone would argue with rejections for: o Lack of proper jurisdiction. o Wrong filing fee amount enclosed. o No fee enclosed and no fee waiver application submitted. o Application is not signed or signed by a party without legal standing. o Application is filed by someone without legal standing (including a disbarred attorney or disciplined attorney or accredited representative).I feel that overly rigid and inapplicable concepts have invaded the psyche ofadjudicators and citizenship claim processing. These and other problems have resultedin some rather ridiculous decisions. I believe that inappropriate rigidity and clingingto outdated and/or just plain bad regulations has overwhelmed sound judgment insome cases. Certain nonsensical procedures have trampled some very substantiveclaims. I also fear that the “Culture of NO!” is still rearing its ugly head at times.Fraud is still sometimes sought and found where none exists. There are plenty of N-600s filed by individuals who have no real claim to pursue. There are plenty of4 This is longstanding standard operating procedure.
  4. 4. appropriate denials. Therefore, there is no need to frivolously deny any case based onsome nonsensical procedural stance.Since the passage of the Child Citizenship Act of 2000 (CCA), far too many newlynaturalized parents have bypassed USCIS and the N-600. Many feel that they needonly spend the lesser amount of money on a passport or worse yet, do nothing at all todocument their child’s true status. I point out that this attitude is not completely new.Many of the more widely known cases came to light because undocumented citizensgot placed in Removal Proceedings. The number of such cases is growing becausethere is a much larger pool of undocumented citizens. They are growing up andcontinuing to get into trouble with law enforcement in the same proportion as anyprevious immigrant population in history (which is less than the native bornpopulation). I do not want to be misquoted as saying that there has been anypercentage change in who commits crimes, just the opposite, I don’t think therenecessarily is any change one way or the other.The troublesome situation is that a larger number of children have automaticallyacquired citizenship but a disproportionately larger percentage of them have neverbothered to document their true citizenship status. Some do get a U.S. Passport buthow many burglars, shoplifters, drug runners, or pornographers etc... carry proof ofcitizenship on them? These folks get run through databases that check the immigrationagencies’ records. They show up as aliens who have now been arrested and they getICE detainers placed on them. Suddenly they try to assert their citizenship claim butuntil it gets settled they may be stuck behind bars. Some of the most difficultsituations will be when someone who began their immigration journey as a refugee orasylee has no birth certificate and their only identity documents are in their A-file inthe possession of DHS (perhaps with ICE since they are in Removal Proceedings).This situation can drag out during a long and uncomfortable stay behind bars. USCISis partly to blame for the larger undocumented citizen population. USCISencouraged folks to file for their child’s passport first. Now it must be understood thatUSCIS and INS before it did specifically tell people that they could go ahead and filefor the passport first and then file an N-600. Many parents got lazy or just actedlike cheapskates and did not follow up with INS or USCIS with an N-600. Then thekid grew up not knowing anything about it. Because no N-600 was filed, the DHSdatabases never got changed to reflect the actual citizenship status of a huge numberof “children”. As those “children” grow up and get in trouble, they find out the hard
  5. 5. way that they do not have sufficient “proof” to get themselves out of RemovalProceedings. The growing population is also somewhat hampered in other contextscompletely outside the criminal justice system. Some states offer Real ID compliantdrivers’ licenses and IDs that may be issued as additional proof of citizenship. NewYork offers an “enhanced DL or ID” but you have to show proof of citizenship andthey check with the USCIS SAVE Program. Save would only reflect lawfulpermanent resident (LPR) status but not citizenship. When the young undocumentedcitizens get hired and run through E-Verify, they might be presenting a greencard andit will be verified, but if they show a passport, they might get a tentative non-confirmation and may require more of an effort. On the other hand, the new hiremight know that they are a citizen and indicate it on the I-9 but have no proof ofcitizenship. A school might check a new student’s eligibility for certain financial aid.If the student indicates that she is a citizen but SAVE may say she is an LPR. Some ofthese less drastic situations that do not involve looming Removal Proceedings may bethe impetus for the now grown derivative citizen “child” to file their own N-600, ithappens all the time.The potential modification of certain cross-agency and cross-department proceduralissues relating to citizenship claims is one of the items that DHS has identified onpage 26 of its Final Plan for Retrospective Review of Existing Regulations5. Unlikethe Preliminary Plan, DHS has not published a Notice about it but has only posted theFinal Plan as a supporting document within the earlier docket DHS-2011-0015 onwww.regulations.gov and the White House has also posted all the plans it hasreceived that can be publicly released.So there is the basis of my interest in the subject. I favor due process and finality byUSCIS and due diligence by naturalized parents and their derivative children.Joseph P. Whalen (9-13-2011)5 See: http://www.regulations.gov/#!documentDetail;D=DHS-2011-0015-0066

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