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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

by Joseph P. Whalen

On July 8, 2011, the 5th Circuit Court of Appeals issued a published decision in Robertson-Dewar v. Holder, No. 09-60847 (5th Cir. July 8, 2011[1]). This case involves an individual who was born out-of-wedlock in Jamaica on June 28, 1980. He was petitioned by his father and immigrated to the U.S. in February 1993. His father naturalized in October 1993. Robertson-Dewar was 13 years old at the time that his father naturalized. On January 10, 1996, the father filed a form N-600, Application for Certificate of Citizenship on behalf of his son with INS. Robertson-Dewar was around 15 at that time. At the time that the N-600 was filed, the law was different that it is today. The controlling section of law at that time was INA 322 [8 USC 1433] or in the alternative, INA 321 [8 USC 1432]. For the sake of clarity, both sections are reviewed. At the applicable time for consideration of Robertson-Dewar's eligibility, former INA 321 read as follows:


SEC. 321. [8 U.S.C. 1432]

(a) A child born outside of the United States of alien parents, or of an alien parent and a citizen parent who has subsequently lost citizenship of the United States, becomes a citizen of the United States upon fulfillment of the following conditions:
(1) The naturalization of both parents; or
(2) The naturalization of the surviving parent if one of the parents is deceased; or
(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if
(4) Such naturalization takes place while such child is under the age of eighteen years [2]; and
(5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent last naturalized under clause (1) of this subsection, or the parent naturalized under clause (2) or (3) of this subsection, or thereafter begins to reside permanently in the United States while under the age of eighteen years.

(b) Subsection (a) of this section shall apply to an adopted child only if the child is residing in the United States at the time of naturalization of such adoptive parent or parents, in the custody of his adoptive parent or parents, pursuant to a lawful admission for permanent residence.

Robertson-Dewar was an out-of-wedlock child who was apparently legitimated by his unwed father. It was the unwed father who naturalized. In the grand scheme of things, it was immaterial whether he was legally legitimated by his father because his mother did not naturalize, thus the question of legitimation as a basis to deprive a child of derivation via the unwed mother became moot in this case.

In addition, as the birth parents never married each other, there is no way that they could have been legally separated. The son was a biological child and was never adopted by anyone. An unwed father, whether he legitimated his child or not, could never facilitate derivative citizenship under that section of law (except as a sole surviving parent). The father was able to establish at the very least, a bona fide parent-child relationship which was good enough to secure an immigrant visa. As Robertson-Dewar never qualified under INA 321(a) or (b) he was then left with a possibility of a form of "expedited naturalization" via former INA 322. The applicable section of law at that time read as follows:


SEC. 322. [8 U.S.C. 1433]

(a) A parent who is a citizen of the United States may apply to the Attorney General for a certificate of citizenship on behalf of a child born outside the United States. The Attorney General shall issue such a certificate of citizenship upon proof to the satisfaction of the Attorney General that the following conditions have been fulfilled:
(1) At least one parent is a citizen of the United States, whether by birth or naturalization.
(2) The child is physically present in the United States pursuant to a lawful admission.
(3) The child is under the age of 18 years and in the legal custody of the citizen parent.
(4) If the citizen parent is an adoptive parent of the child, the child was adopted by the citizen parent before the child reached the age of 16 years and the child meets the requirements for being a child under subparagraph (E) or (F) of section 101(b)(1).
(5) If the citizen parent has not been physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years-
(A) the child is residing permanently in the United States with the citizen parent, pursuant to a lawful admission for permanent residence, or

(B) a citizen parent of the citizen parent has been physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two which were after attaining the age of fourteen years.

(b) Upon approval of the application (which may be filed abroad) and, except as provided in the last sentence of section 337(a), upon taking and subscribing before an officer of the Service within the United States to the oath of allegiance required by this Act of an applicant for naturalization, the child shall become a citizen of the United States and shall be furnished by the Attorney General with a certificate of citizenship.

(c) Subsection (a) of this section shall apply to the adopted child of a United States citizen adoptive parent if the conditions specified in such subsection have been fulfilled.

In Robertson-Dewar's case, his application was not completed before he turned 18 and he lost eligibility under that provision of law. This is unfortunate but not at all, unusual. I should not have to remind any longtime immigration practitioners about the significance of the time period in which this N-600 was filed but will explain for the young pups out there.

In fiscal year 1996 (Oct. 1, 1995-Sept. 30, 1996), INS began to implement an initiative to combat its giant backlog of naturalization applications. That initiative was known as Citizenship USA[3] or simply, CUSA[4] . CUSA had been in the formative stage since at least 1993. CUSA was a mad rush to plow through the N-400 backlog as quickly as possible. A consequence of that effort was placing certain other applications on hold or "on the back burner". N-600s and many other applications and petitions fell by the wayside, were ignored or "set aside" thus creating backlogs of their own. On top of CUSA, INS was also inundated with the first round of applications for INA 245(i) adjustments. In fact, it was the penalty fees gained from 245(i) that funded much of CUSA. Congress had envisioned and INS had "promised" that it would have a dual focus on both N-400s and I-485s (esp. under 245(i) which initially had to be fully adjudicated and approved by the "sunset" date). INS did not live up to the promise and CUSA cut into the adjustment processing and various other programs' delivery[5] quite significantly. Background checks on naturalization applicants suffered and many convicted felons and other ineligible applicants were naturalized in error. That unfortunate situation led to even greater focus on N-400 processing. Naturalization Quality Procedures (NQP) was born and it too evolved over the years, it settled into its "current" form after about a decade or so of revisions. There was also a round of denaturalization cases. The "administrative denaturalization" or "revocation" regulations at 8 CFR 340.1 were invalidated on July 20, 2000, by the Ninth Circuit Court of Appeals in the class action lawsuit Gorbach v. Reno, 219 F.3d 1087 (9th Cir. 2000), and resulted in a final injunction prohibiting the use of these regulations on February 14, 2001. So, it is no wonder that resources were stretched so thin that Robertson-Dewar aged-out before anyone could look at his N-600 citizenship application case. Had the father[6] filed earlier he could perhaps have avoided the CUSA-caused delay. Anyway, the fact is that the father waited 2 years after naturalizing to file an N-600 and then INS did not reach it for another 2 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 act 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 government's 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-Dewar

The 5th Circuit noted that Robertson-Dewar was told in 1999, that he was NOT a citizen. This applicant knew that he had aged-out when he was an LPR for over five years, having immigrated in 1993, and when he was just barely over the age of 18 and therefore fully eligible to seek naturalization by filing an N-400 at that point. He did not do that. Instead, he engaged in the criminal dissemination of child pornography 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 in removal proceedings. Several days later, on December 18, 2006, the U. S. Citizenship and Immigration Services (USCIS) denied his 1996 application for a certificate of citizenship. Admittedly, and quite obviously, DHS was sloppy at this point. Prior to issuing the NTA, ICE should have combed through the A-file and discovered 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, I doubt 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. 6

Prior to major changes in processing procedures, formal written decisions in N-600 cases and indeed, even N-400 cases were not always issued well into the late 1990s. In the old days, INS took care of the "examinations" for such applicants for naturalization and in the majority of cases, which did actually get approved, a formal order was issued as a pre-formatted Court Order by a District Court Judge. The newly minted citizen got a certificate and walked away happy. That "Court Order" was prepared by INS on form N-481, Naturalization Petitions Recommended to be Granted (on behalf of children) (and) Order of Court Granting Petitions for Naturalization, or form N-480, Naturalization Petitions Recommended to be Granted (and) Order of Court Granting Petitions for Naturalization (for adult applicants). On the other hand, many denials were handled via the form N-484, Naturalization Petitions Recommended to be Denied (and) Order of Court Denying Petitions for Naturalization, which were also simply prepared and submitted by INS to the Judge. Most folks were verbally told of ineligibility and if they could re-apply in the future were encouraged to withdraw their petitions for naturalization as opposed to having a formal denial go on record. Most did just that. On the other hand, if someone was deportable then things took another path. A simple verbal advisory and withdrawal was easier for the INS Examiner and the naturalization aspirant to just end it quickly, end of story, come back another day. This was probably the case when he was told that he did not qualify back in 1999. I would hazard a guess that there is most likely a hand-written notation on that N-600 either simply saying something like: "denied", "denied, aged-out", or "withdrawn" plus a date and either initials, a signature, or officer ID#. Depending on the version of the form, it could also have an attestation or stipulation section that an officer may have completed as well in order to record the applicant's ineligibility.

I for one, have no doubt that Circuit Court Judges, Immigration Judges, BIA Board Members, and especially, ICE Counsel would not even know what to look for on an immigration or naturalization form, especially and old obsolete version of one. These old INS forms might have still been used until IMMACT90 shifted naturalization authority from the Courts to the Attorney General in 1990, and perhaps for a bit longer. Some of these old "INS and Court" form numbers could still be the actual legal form designations for the computer-generated lists that exist today. I have never asked or looked to find out.

The 5th Circuit discussed the BIA's determination that it had no jurisdiction to decide as to Robertson-Dewar's "eligibility for naturalization" and relied on Matter of Hidalgo, 24 I&N Dec. 103 (BIA 2007). While I agree on the outcome and with the "procedural requirement" in that case where the BIA ruled that it has jurisdiction to terminate removal proceedings only where it has received "some form of affirmative communication from the DHS" regarding the alien's prima facie eligibility for naturalization. I disagree with the 5th Circuit's and the BIA's legal analysis as to Robertson-Dewar's case.

The primary statutory authority to make the determination as to a claim to U.S. Citizenship by an individual who was born abroad but is first asserting the citizenship claim inside the United States is vested solely in the Secretary of Homeland Security. The Secretary has delegated her authority to USCIS and the first stage of appellate review of that USCIS decision is vested in AAO. The IJ and BIA have no authority to make a citizenship claim determination in the first instance. The Attorney General only has a role to provide opinions and interpretations on questions of law in these matters and then only after there has been an initial determination by DHS and any available internal agency reviews have been completed. The type of determination involved in a citizenship claim (N-600) is usually very evidence intensive and the experts in sorting through that evidence need to complete that review in the first instance. It is noted that a citizenship claim may be made as part of a Petition for Review of an Order of Removal. It is well within the authority of ICE to cancel an NTA or join a Motion to Terminate, without prejudice, in order to allow a putative derivative citizen to pursue that claim through USCIS. USCIS does have the authority to issue an NTA and can do so upon a final administrative decision, preferably an AAO Dismissal.

This is a perfect example of the type of case that ICE should request USCIS to expedite. ICE Counsel in 2007, actually stated that the 27 year old Robertson-Dewar appeared to be "facially eligible" under INA 322. I am shocked at the thought of that statement actually having been made. ICE Counsel had no business to do any such thing. At most, (s)he should have joined a Motion for (temporary) Termination, without prejudice, to allow USCIS' AAO to review the case on Motion under 8 CFR 322.5(b) (which is little more than a reiteration of 341.6) and then re-issue the NTA upon Dismissal just to properly prepare the record for review by the Circuit Court of Appeals. This is the end of the main article, as it pertains to the 5th Circuit case. The remainder is a general review of the basic underlying statutory authorities involved.

On Jurisdiction


INA 103 [8 USC 1103] [The INA was substantially altered by the Homeland Security Act (HSA 2002), and the functions of the former INS under the authority of the Attorney General (A.G.) were transferred to the Secretary of Homeland Security. EOIR (IJ's and the BIA) was kept in DOJ under the A.G.]

(a) Secretary of Homeland Security
(1) The Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, except insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the President, Attorney General, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers: Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling.

The Secretary of Homeland Security has delegated matters pertaining to determinations of U.S. citizenship and applications for naturalization among other duties to USCIS via Department of Homeland Security Delegation Memos 0150 and 0150.1, Delegation to the Bureau of Citizenship and Immigration Services [now USCIS]. The Administrative Appeals Office (AAO) resides within USCIS and is the "other" major Immigration Appellate Body.

The jurisdiction of the AAO is limited to that authority specifically granted to it by the Secretary of the United States Department of Homeland Security. See DHS Delegation Number 0150.1 (effective March 1, 2003). Delegations that pertain to the Secretary's powers under the INA are hard tom find. Although the Secretary has the authority to publish her delegations in the Federal Register or more easily on her website, this has not been done. Information about what is in those Delegation Memos is only found 2nd hand in other documents such as AAO Decisions, GAO Reports, the CIS Ombudsman's reports and in Court Decisions.

The AAO exercises appellate jurisdiction over the matters described in 8 CFR 103.1(f)(3)(iii) (as in effect on February 28, 2003), with two exceptions: (1) petitions for approval of schools and the appeals of denials of such petitions are the responsibility of Immigration and Customs Enforcement (ICE); and (2) applications for S nonimmigrant status are the responsibility of the Office of Fraud Detection and National Security (FDNS) of U.S. Citizenship and Immigration Services.

Attorney General-EOIR-BIA-IJ's INA 103 [In addition to the specific authority in the proviso in (a) as the final arbiter of questions of law, the A.G. remains the boss over EOIR and directly over BIA Decisions. Even where the BIA is restricted on standard or level of review, such as: "for substantial evidence" or when it "may not be the fact-finder", the A.G. retains plenary power to perform a full de novo review of any immigration case before him, where he has authority in the first instance. When he is reviewing DHS determinations, he must let DHS have first crack at the case where DHS has the statutory authority in the first instance before he can review its decision and then only as to matters of legal interpretation, i.e. "questions of law".]

(g) Attorney General
(1) In general

The Attorney General shall have such authorities and functions under this chapter and all other laws relating to the immigration and naturalization of aliens as were exercised by the Executive Office for Immigration Review, or by the Attorney General with respect to the Executive Office for Immigration Review, on the day before the effective date of the Immigration Reform, Accountability and Security Enhancement Act of 2002.

(2) Powers

The Attorney General shall establish such regulations, prescribe such forms of bond, reports, entries, and other papers, issue such instructions, review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary for carrying out this section.

[Editor's note: The first sentence of the following paragraph was accidently deleted in the article production process. This mistake has been corrected]. An Immigration Judge, as one of the current delegated officials under the authority of the A.G. has no statutory authority to make a determination of a claim to U.S. Citizenship in the first instance. With the passage of the Homeland Security Act (HSA 2002), the A.G. lost certain statutory authority under INA 103 [8 USC 1103]. The statutory authority to make determinations in claims to U.S. Citizenship of persons born abroad, but who make the citizenship claim from within the United States is in the sole purview of the Secretary of Homeland Security in the first instance and then subject to judicial review.

State Department-Passport Agency

INA 104 [8 USC 1104] Powers and Duties of the Secretary of State

(a) Powers and duties

The Secretary of State shall be charged with the administration and the enforcement of the provisions of this chapter and all other immigration and nationality laws relating to (1) the powers, duties, and functions of diplomatic and consular officers of the United States, except those powers, duties, and functions conferred upon the consular officers relating to the granting or refusal of visas; (2) the powers, duties, and functions of the Administrator; and (3) the determination of nationality of a person not in the United States.

The Secretary of State is also without authority to make a determination as to U.S. Citizenship in the first instance for an individual inside the United States, in all but the most obscure of cases where secondary evidence of birth in the United States is deemed sufficient. The power of the Secretary of State to issue passports, is based in the general availability of primary evidence being submitted by most passport applicants who were born in the United States or have already obtained either a Certificate of Citizenship or Certificate of Naturalization from the former INS or currently USCIS, or to have obtained a Consular Report of Birth Abroad [of a United States Citizen] (FS-240) from a Consular Officer and/or a passport before entering the U.S.

Derivative Citizenship Claim through Parents' Naturalization:

The applicable law for derivative citizenship purposes is "the law in effect at the time the critical events giving rise to eligibility occurred." Minasyan v. Gonzales, 401 F.3d 1069, 1075 (9th Cir. 2005); accord Jordon v. Attorney General, 424 F.3d 320, 328 (3rd Cir. 2005).

Evidentiary Burden and Burden of Proof:

"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). 8 C.F.R. 341.2(c) provides that the burden of proof shall be on the claimant to establish the claimed citizenship by a preponderance of the evidence. In order to meet this burden, the applicant must submit relevant, probative and credible evidence to establish that the claim is "probably true" or "more likely than not." Matter of E-M-, 20 I&N Dec. 77,79-80 (Comm. 1989).

A person may only obtain citizenship in strict compliance with the statutory requirements imposed by Congress. INS v. Pangilinan, 486 U.S. 875, 884 (1988). Moreover, "it has been universally accepted that the burden is on the alien applicant to show his eligibility for citizenship in every respect" and that any doubts concerning citizenship are to be resolved in favor of the United States. Berenyi v. District Director, INS, 385 U. S. 630, 637 (1 967). The applicant must meet this burden by establishing the claimed citizenship by a preponderance of the evidence. 8 C.F.R. 341.2(c).

Specific Requirements:

Because the applicant was born abroad, she is presumed to be an alien and bears the burden of establishing her claim to U.S. citizenship by a preponderance of credible evidence. See Matter of Baires-Larios, 24 I&N Dec. 467, 468 (BIA 2008).

"The term "legal separation" in the context of derivative citizenship means either a limited or absolute divorce obtained through judicial proceedings. Matter of H, 3 I&N Dec. 742, 743-44 (Cent. Office 1949). See Morgan v. Attorney General, 432 F.3d 226, 233 (3d Cir. 2005) (finding no legal separation absent a judicial decree); Nehme v. INS, 252 F.3d 415,426 (5th Cir. 2001) (finding that "in the United States, the term 'legal separation' is uniformly understood to mean judicial separation") (emphasis in original)."[7]

Powers Beyond AAO's Authority:

"The AAO, like the Board of Immigration Appeals, is without authority to apply the doctrine of equitable estoppel so as to preclude a component part of USCIS from undertaking a lawful course of action that it is empowered to pursue by statute or regulation. See Matter of Hernandez-Puente, 20 I&N Dec. 335, 338 (BIA 1991). Res judicata and estoppel are equitable forms of relief that are available only through the courts. The jurisdiction of the AAO is limited to that authority specifically granted to it by the Secretary of the United States Department of Homeland Security. See DHS Delegation Number 0150.1 (effective March 1, 2003); see also 8 C.F.R. 103.1 (f)(3)(E)(iii) (as in effect on February 28, 2003) [and subsequent amendments, this includes N-600's]. Accordingly, the AAO has no authority to address the petitioner's equitable estoppel and res judicata claims."[8]

"Even if the applicant's assertions regarding the delays in his father's naturalization and his own application were true, the AAO is without authority to apply the doctrine of equitable estoppel to approve an application for derivative citizenship nunc pro tunc."[9]


1Presently available at:

2See Matter of Fuentes, 21 I&N Dec. 893 (BIA 1997) at: as to the retroactive changes to the law as applied to that case.

3The DOJ OIG Main Report Table of Contents with links is found at:

4The CUSA portion of the DOJ OIG Report at:

5See the "other programs" part of the DOJ OIG Report at:

6Had the father been more responsible and diligent in many aspects of his relationship with his son perhaps he would not have raised a young man who peddled child pornography and the son could have naturalized on his own instead of going to prison and getting deported because of it.

7See: May182010_03E2309.pdf

8A non-precedent AAO Administrative Decision pertaining to an I-140, Immigrant Petition for Alien Worker, as a Member of the Professions Holding an advanced Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration and Nationality Act, 8 U.S.C. 1153(b)(2). See: Apr282009_01B5203.pdf on

9From the most recent non-precedent AAO Decision on an N-600 at: May192010_01E2309.pdf at

About The Author

Joseph P. Whalen Is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.