Why Do I Make Such A Big Deal About Citizenship Claims?

People may wonder why I make such a big deal about citizenship claims and

especially the proper initial processing, proper appellate review, and judicial review of

those 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. I

believe in finality and I fully advocate for procedural reforms such that decisions on

citizenship claims will always be geared towards reaching finality but only on the

merits. As things have been working through the present time, finality is sometimes

hard to come by. AAO does not routinely (or ever in my experience) advise denied

claimants of their right to judicial review of their citizenship claim. Instead, AAO

routinely tells them that they can file further Motions or sometimes has actually, quite

incorrectly, told people to file a new N-600, which is not allowed under the

regulations, at least since 1985.

Ortega v. Holder, et. al, 592 F.3d 738; 2010 U.S. App (7th Cir. 2010)1 provides:

“.... Congress's solicitude in providing all others with a means of obtaining a

certificate of citizenship either through the general application process2 or through the

removal process evinces Congress's 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. ...” [§ 341.6 has been repealed, this issue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 regulation is still clunky. However, the court stated it in a more

workable manner.

In light of the above as well as numerous other cases, the following is offered for

consideration. 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 or

http://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=gdjb&sea

rchTerm=hYKL.gLja.ZCaW.LabT&searchFlag=y&l1loc=FCLOW 2 The Court is referring to the N-600 filed with USCIS.

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

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 of

adjudicators and citizenship claim processing. These and other problems have resulted

in some rather ridiculous decisions. I believe that inappropriate rigidity and clinging

to outdated and/or just plain bad regulations has overwhelmed sound judgment in

some cases. Certain nonsensical procedures have trampled some very substantive

claims. 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 of

4 This is longstanding standard operating procedure.

appropriate denials. Therefore, there is no need to frivolously deny any case based on

some nonsensical procedural stance.

Since the passage of the Child Citizenship Act of 2000 (CCA), far too many newly

naturalized parents have bypassed USCIS and the N-600. Many feel that they need

only spend the lesser amount of money on a passport or worse yet, do nothing at all to

document 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 citizens

got placed in Removal Proceedings. The number of such cases is growing because

there is a much larger pool of undocumented citizens. They are growing up and

continuing to get into trouble with law enforcement in the same proportion as any

previous immigrant population in history (which is less than the native born

population). I do not want to be misquoted as saying that there has been any

percentage change in who commits crimes, just the opposite, I don’t think there

necessarily is any change one way or the other.

The troublesome situation is that a larger number of children have automatically

acquired citizenship but a disproportionately larger percentage of them have never

bothered to document their true citizenship status. Some do get a U.S. Passport but

how many burglars, shoplifters, drug runners, or pornographers etc... carry proof of

citizenship on them? These folks get run through databases that check the immigration

agencies’ records. They show up as aliens who have now been arrested and they get

ICE detainers placed on them. Suddenly they try to assert their citizenship claim but

until it gets settled they may be stuck behind bars. Some of the most difficult

situations will be when someone who began their immigration journey as a refugee or

asylee has no birth certificate and their only identity documents are in their A-file in

the 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. USCIS

is partly to blame for the larger undocumented citizen population. USCIS

encouraged folks to file for their child’s passport first. Now it must be understood that

USCIS and INS before it did specifically tell people that they could go ahead and file

for the passport first and then file an N-600. Many parents got lazy or just acted

like cheapskates and did not follow up with INS or USCIS with an N-600. Then the

kid grew up not knowing anything about it. Because no N-600 was filed, the DHS

databases never got changed to reflect the actual citizenship status of a huge number

of “children”. As those “children” grow up and get in trouble, they find out the hard

way that they do not have sufficient “proof” to get themselves out of Removal

Proceedings. The growing population is also somewhat hampered in other contexts

completely outside the criminal justice system. Some states offer Real ID compliant

drivers’ licenses and IDs that may be issued as additional proof of citizenship. New

York offers an “enhanced DL or ID” but you have to show proof of citizenship and

they check with the USCIS SAVE Program. Save would only reflect lawful

permanent resident (LPR) status but not citizenship. When the young undocumented

citizens get hired and run through E-Verify, they might be presenting a greencard and

it 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 hire

might know that they are a citizen and indicate it on the I-9 but have no proof of

citizenship. 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 of

these less drastic situations that do not involve looming Removal Proceedings may be

the impetus for the now grown derivative citizen “child” to file their own N-600, it

happens all the time.

The potential modification of certain cross-agency and cross-department procedural

issues relating to citizenship claims is one of the items that DHS has identified on

page 26 of its Final Plan for Retrospective Review of Existing Regulations5. Unlike

the Preliminary Plan, DHS has not published a Notice about it but has only posted the

Final Plan as a supporting document within the earlier docket DHS-2011-0015 on

www.regulations.gov and the White House has also posted all the plans it has

received that can be publicly released.

So there is the basis of my interest in the subject. I favor due process and finality by

USCIS 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