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Citizenship Claim Jurisdictional Considerations Since Passage of the Homeland Security Act Shifted Cabinet Level Authorities

by Joseph P. Whalen

In an "as yet" non-precedential AAO Decision at: Dec022010_01E2309.pdf, AAO has affirmatively stated its position on the jurisdictional question of citizenship claims at least between itself and EOIR. AAO has also pointed out the potential value of testimony before an IJ on certain questions of fact. While the findings of fact made through testimony will be given significant weight, it appears that AAO may review such findings for substantial evidence and/or clear errors. Perhaps this will be reflected in the upcoming AAO Rulemaking (more on that in the conclusion).

"U.S. Citizenship and Immigration Services (USCIS) is not bound by a determination of the Executive Office for Immigration Review (EOIR) that an applicant is a U.S. citizen. An immigration judge may credit an individual's citizenship claim in the course of terminating removal proceedings for lack of jurisdiction because the government has not established the individual's alienage by clear and convincing evidence. See 8 C.F.R. 1240.8(a), (c) (prescribing that the government bears the burden of proof to establish alienage and removability or deportability by clear and convincing evidence). The immigration judge's decision regarding citizenship, however, is not binding on USCIS. USCIS retains sole jurisdiction to issue a certificate of citizenship and the agency's decision is reviewable only by the federal courts, not EOIR. Sections 34l(a) and 360 of the Act, 8 U.S.C. 1452(a), 1503; 8 C.F.R. 341.1; see also Minasyan v. Gonzalez, 401 F.3d at 1074 n.7 (noting that the immigration court had no jurisdiction to review the agency's denial of Minasyan's citizenship claim). In addition, while the government bears the burden of proof to establish an individual's alienage in removal proceedings before EOIR; in certificate of citizenship proceedings before USCIS, the applicant bears the burden of proof to establish the claimed citizenship by a preponderance of the evidence. Section 34l(a) of the Act, 8 U.S.C. 1452(a); 8 C.F.R. 341.2(c).

Although the immigration judge's finding regarding the applicant's citizenship is not binding on these proceedings, the record established before the immigration judge provides probative evidence relevant to the N-600 application. Here, the immigration judge credited the testimony provided by the applicant's paternal aunt as generally reliable, detailed, cohesive, and supported by the documentary evidence in the record. See Written Decision of the Immigration Judge, at 10. Specifically, the applicant's paternal aunt testified that the applicant's father was born in El Paso, where he lived with his family until 1924 when the children moved to Mexico with their mother. Id. at 4-5. The applicant's father returned to the United States with his brother and mother in 1927, and his brother was killed in a farming accident. Id. at 5. The applicant's father again returned to the United States around 1936, and he lived with the applicant's paternal aunt in El Paso beginning in or around 1939. Id. at 5-6." At p. 3

As for the value of an erroneously issued passport, AAO addressed that issue in two related "as yet" non-precedential decisions at:Aug182011_01E2309.pdf. Jul172009_12E2309.pdf. AAO explained that USCIS will not be bound by the mere presence of a passport when clear and convincing evidence in the applicant's case file supports a conclusion that the applicant has NOT attained U.S. citizenship.

AAO definitively addressed the legal basis for the Director's Decision to deny the N-600. AAO specifically noted that the Ninth Circuit case relied upon by counsel was not controlling in the instant citizenship claim case which arose in the Third Circuit and that it was distinguishable from it. Additionally, the New York law applicable to the parents' marital status also refuted the claim to a legally cognizable separation by the claimant's parents. The applicable New York Domestic Relations Law had already been addressed by the Second Circuit within the citizenship claim context in Lewis v. Gonzales, 481 F.3d 125 (2nd Cir. 2007).

As for the value of the passport, the 2009 AAO Decision noted the following:

"The AAO nevertheless notes that the record contains a copy of the applicant's U.S. passport. In Matter of Villanueva, 19 I&N Dec. 101 (BIA 1984), the Board held that a valid U.S. passport is conclusive proof of U.S. citizenship. Specifically, the Board held in Matter of Villanueva that:

unless void on its face, a valid United States passport issued to an individual as a citizen of the United States is not subject to collateral attack in administrative immigration proceedings but constitutes conclusive proof of such person's United States citizenship.

Where, as here, the applicant has failed to establish statutory eligibility for U.S. citizenship, a Certificate of Citizenship cannot be issued. The USCIS Adjudicator's Field Manual at 71.1 instructs that

An unexpired United States passport issued for 5 or 10 years is now considered prima facie evidence of U.S. citizenship. Because it does not provide the actual basis upon which citizenship was acquired or derived, the submission of additional documentation may be required or the passport file may be requested. If after review there are differences or discrepancies between the USCIS information and the Passport Office records which would indicate that the application should not be approved, no action should be taken until the Passport Office has an opportunity to review and decide whether to revoke the passport.

The AAO notes that on May 29, 2009 the Assistant Field Office Director, Allenwood, Pennsylvania notified the U.S. Department of State that the applicant did not derive U.S. Citizenship from his mother, however, there is no indication in the record that the USCIS and Passport Office records have been compared or that the Passport Office has taken any action. The matter must therefore be remanded to the director to await Passport Office review and determination as to whether to revoke the applicant's passport. The director shall determine the matter once the Passport Office's review is completed and issue a new decision accordingly." At pp. 4-5

The basic facts of the case were laid out the same in both decisions. The following excerpt is from the 2011 AAO Decision. The first paragraph is applicable to the underlying citizenship claim. The second paragraph tells us what eventually happened with the passport and finds a way to discount it.

"The record reflects that the applicant was born on July 29, 1965 in Panama. The applicant's parents are The applicant's parents were married in 1965 and divorced in 1985. The applicant's father became a U.S. citizen upon his naturalization on September 12, 1984. The applicant's mother was naturalized on December 21, 1982. The applicant was admitted to the United States as a lawful permanent resident on August 24, 1977. The applicant's eighteenth birthday was on July 29, 1983. The applicant seeks a certificate of citizenship pursuant to former section 321 of the Immigration and Nationality Act (the Act), 8 U.S.C. 1432 (repealed).

The field office director denied the application upon finding that the applicant could not derive U.S. citizenship solely through his mother because his parents were not legally separated prior to his eighteenth birthday. On appeal, the applicant, citing Minasyan v. Gonzalez, 401 F.3d 1069 (9th Cir. 2005), claimed that his parents were separated on November 13, 1975 and that their separation was legally recognized under New York law. The AAO withdrew the director's decision and remanded the matter to the director to await U.S. Department of State Passport Office review and determination as to whether to revoke the applicant's passport. Upon receiving confirmation from the Passport Office that the applicant's U.S. passport had expired and therefore could not be revoked, the director issued a new decision finding, in relevant part, that the applicant had not established that his parents were legally separated. The director also noted that the applicant no longer held a valid, unexpired U.S. passport and therefore could not establish prima facie eligibility for U.S. citizenship on that basis." At p. 2

On Friday, January 20, 2012, DHS posted its Regulatory Plan - Fall 2011 and Semiannual Regulatory Agenda - Fall 2011at: . This submission is a routine matter that is required twice per year in the "Spring" and "Fall". Last year, due to the issuance of President Obama's Executive Orders pertaining to Open Government and Retrospective Regulatory Review, DHS received much input and has tried to "give the people what they want". One of the items included is RIN: 1615-AB98:

Title: Administrative Appeals Office: Procedural Reforms To Improve Efficiency

Abstract: This proposed rule revises the requirements and procedures for the filing of motions and appeals before the Department's U.S. Citizenship and Immigration Services and its Administrative Appeals Office. The proposed changes are intended to streamline the existing processes for filing motions and appeals and will reduce delays in the review and appellate process. This rule also makes additional changes necessitated by the establishment of the Department of Homeland Security and its components.


Additional Information: Previously 1615-AB29 (CIS 2311-04), which was withdrawn in 2007. DHS has included this rule in its Final Plan for the Retrospective Review of Existing Regulations, which DHS issued on August 22, 2011.

Most significantly, the Agenda indicates a Notice of Proposed Rulemaking (NPRM) is due out in March 2012. Could it be true? I hope so, because it is way overdue. It would be a welcome opportunity for USCIS to address in a significant manner some of the bigger questions and issues such as, but not limited to:

  • jurisdictional issues,
  • standards of review by specific contexts,
  • prima facie evidence,
  • clear and convincing evidence,
  • burdens of proof,
  • standards of proof,
  • weighing evidence,
  • categories of evidence,
  • conclusive proof,
  • findings of fraud, misrepresentation, or concealment of a material facts,
  • and a whole lot more.

Keep on the look-out for progress on these matters. I will.

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.

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