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AAO Decisions on Citizenship Claims in 2011 Compiled and posted by Joseph P. Whalen (April 16, 2012)

The latest N-600 non-precedent AAO decisions have been posted by USCIS and are worth reading. I found and posted the first two on or about February 22, 2012. Aug222011_01E2309.pdf This one involves a claim under INA § 322 by an applicant over age 18. It was a waste of time to file in the first place. The Appeal was DISMISSED. Aug232011_01E2309.pdf Appeal SUSTAINED, Application APPROVED, Case REMANDED for issuance of a Certificate of Citizenship. This one involves old Section 201 of the Nationality Act of 1940; 8 U.S.C. § 601. This one hinged on a proper assessment of the evidence in the record under the proper standard of proof. AAO appears to have merely reassessed the evidence less harshly that they did in Los Angeles. I ran across more cases that were posted at some later date. I found the additional posted cases on April 15, 2012. Jan072011_03E2309.pdf Appeal DISMISSED Applicant was adopted by USC parents who did not follow through with the “expedited naturalization for a child” afforded under former § 322. Other INA provisions were not then and are not now applicable. Jan132011_01E2309.pdf Appeal DISMISSED [AAO found harmless error.]

FN Although the director erroneously considered the applicant's citizenship claim under section 301 of the Act, the error was harmless because the evidentiary requirements of section 301 of the Act and section 201 or the Nationality Act are sufficiently similar as applied to this case. The AAO notes that the applicant has previously indicated that there is no additional evidence of his father's residence in the United States available. See Response to Form N-14. Therefore, a remand to the director for consideration of this matter under the applicable law is not required.

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Feb022011_05E2309.pdf Appeal DISMISSED USC parent resides in U.S. but child resides abroad, therefore the case fails to meet requirements of § 322 of the Act. Feb102011_01E2309.pdf Appeal DISMISSED

“[T]he applicant is not eligible for citizenship as an out-of-wedlock child under sections 205 and 201 of the 1940 Act.”

Feb142011_03E2309.pdf Appeal DISMISSED Applicant did not derive under former § 321 in any manner. He did not derive through the naturalization of his unwed father. The natural parents finally married when the applicant was already 18 years old and divorced a few years later so, there was no derivation based on the parents divorced and the mother did naturalize until far too late to have any impact on her adult son’s status. The naturalized father had custody for a time but did not pursue “expedited naturalization of a child” under former § 322.

FN Because the instant application is the applicant's second Form N-600, the director should have rejected the application and instructed the applicant to submit a motion to reopen or reconsider pursuant to 8 C.F.R. § 341.6. For purposes of administrative efficiency, however, the AAO will adjudicate this pending appeal. “The AAO notes that an Immigration Judge terminated the applicant's removal proceedings on August 26, 2005, finding that the applicant showed prima-facie eligibility for U.S. citizenship. See Order of the Immigration Judge, dated Aug. 26, 2005. However, the immigration judge's finding regarding the applicant's citizenship is not binding on these proceedings. Specifically, 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). U.S. Citizenship and Immigration Services, on the other hand, retains sole jurisdiction to issue a certificate of citizenship, and the agency's decision is reviewable only by the federal courts, not the immigration courts.

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Sections 341(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). Additionally, it appears that the Immigration Judge determined that the applicant derived U.S. citizenship under former section 322 of the Act, 8 U.S.C. § 1433. Because the applicant did not apply and take the naturalization oath before his eighteenth birthday, he does not meet the age limitation set forth in former section 322(a)(3) of the Act, and therefore did not derive U.S. citizenship under that provision.” At p. 4

Feb242011_01E2309.pdf Appeal SUSTAINED This is an interesting case involving retention requirements, retroactive amendments that repealed them, and ultimately remedied the situation in the applicant’s favor. Additionally, there was an error in the information in the record which was partially dispositive in light of the amendments.

“ORDER: The matter is returned to the Houston Field Office for issuance of a certificate of citizenship.”

Mar102011_05E2309.pdf Appeal DISMISSED

FN Section 301(a)(7) of the former Act was re-designated as section 301(g) upon enactment of the Act of October 10, 1978, Pub. L. 95-432, 92 Stat. 1046. The substantive requirements of this provision remained the same until the enactment of the Act of November 14, 1986, Pub. L. 99-653, 100 Stat. 3655.

“The applicant must therefore establish that his mother was physically present in the United States for 10 years prior to 1978, five of which were after the age of 14 (after 1969).

The record contains a social security earnings statement pertaining to the applicant's mother indicating that she had employment income in the United States, in relevant part, from 1969 until 1978. The record also contains the correspondence between the applicant's grandfather and his attorney, and immigration appointment notices, dated in 1967 to 1969. The AAO notes that the documents dated in 1967 are addressed to the applicant's father in Mexico. The AAO further notes that the applicant's mother stated in her application for a certificate of citizenship, which was submitted in 1967, that

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she was residing in Mexico even after her arrival in the United States on November 9,1967. The record contains affidavits executed by some of the applicant's mother's relatives and friends. The affidavits generally state that the applicant's mother began residing in the United States in 1967, about the time that her citizenship application was submitted. The affidavits, however, contain several important discrepancies. For example, Mrs. [REDACTED #1]states that the applicant's mother's family resided in Los Banos, California in 1967 whereas Mrs. [REDACTED #2] states that they resided in Yolo, California. The affiants also do not clearly state how many or which months the applicant's mother was present in the United States in 1967. Most importantly, the affidavits contradict the applicant's mother's own application for a Certificate of Citizenship.”

Mar212011_01E2309.pdf Appeal DISMISSED

“The applicant's father was admitted to the United States as a lawful permanent resident in 1955, and naturalized in 1965. The applicant was born in 1974. The record contains evidence that the applicant's father served in "foreign" or "coastwise" merchant marine vessels from 1960 through 1974. As noted by the District Director, the U.S. Department of State's Foreign Affairs Manual, at 7 FAM 1133.3-3(b )(7), states, in pertinent part:

Time spent on voyages defined by the Coast Guard as "foreign" or "coastwise" (those from one U.S. port to another in a non-adjacent State in which the vessel travels outside U.S. territorial waters) are not considered physical presence in the United States.

The record also contains a copy of a letter confirming the applicant's father's membership in the AFL-CIO since 1957 and an Affidavit of Support stating that he has maintained a savings account at the Whitney National Bank since 1957. In light of the time spent by the applicant's father as a seaman in "foreign" or "coastwise" vessels, the record does not establish that the applicant's father was physically present in the United States for 10 years prior to 1974.” At p. 3

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Apr012011_01E2309.pdf Appeal SUSTAINED

The Board of Immigration Appeals held in Matter of Tijerina-Villarreal, 13 I&N Dec. 327, 331 (BIA 1969), that:

[W]here a claim of derivative citizenship has reasonable support, it cannot be rejected arbitrarily. However, when good reasons appear for rejecting such a claim such as the interest of witnesses and important discrepancies, then the special inquiry officer need not accept the evidence proffered by the claimant. (Citations omitted.)

The applicant's claim has reasonable support and, although the affidavits submitted were executed by his family members, they are detailed and consistent. The evidence in the record establishes that the applicant's father was physically present in the United States for 10 years prior to [YEAR], five of which were after the age of 14.” At p. 3

Apr012011_02E2309.pdf Appeal SUSTAINED This is an interesting case involving a discussion of “common-law marriage” in Texas and whether a child born to parents in such a marriage but who subsequently “formally marry” is considered born “out of wedlock” or not. I have to ask: would the subsequent formal legal marriage cure the issues of legitimation status and about “the father (unless deceased) [having] agreed in writing to provide financial support for the person until the person reaches the age of 18 years”

Apr012011_03E2309.pdf Appeal SUSTAINED [N-600K improperly denied: The “Culture of NO!” is alive and well in Baltimore. MD.]

“On appeal, the applicant, through counsel, maintains that she is eligible for a certificate of citizenship because she was in lawful status when the Form N-600K, Application for Certificate of Citizenship under section 322, was filed on her behalf. See Appeal Brief. Counsel further maintains that the applicant was at all times residing abroad in her IJ.S. citizen parent's custody. Id. Counsel explains that the applicant was admitted to the United States, with her parents, as a non-immigrant visitor in May 2010 and authorized to remain until November 2010. Id. In July 2010, the applicant was admitted to Children's National Medical Center in Washington, D.C. Id The Form N-600K, Application for Certificate of Citizenship under Section 322, was filed on her behalf in October 2010. Id. She departed the United States in December 2010.”

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* * * * * “The director denied the application finding that the applicant was not maintaining lawful nonimmigrant status or residing abroad with her U.S. citizen parent. These issues are moot now that the applicant has returned abroad from her brief visit to the United States. The AAO notes nonetheless that the applicant was in lawful non-immigrant status when the Form N-600K, Application for Certificate of Citizenship under Section 322, was filed on her behalf. See 8 C.F.R. § 322.3; see also Matter of Katighak, 14 I&N Dec. 45, 49 (Comm. 1971) (finding that a petitioner must establish eligibility at the time of filing). The AAO further notes that the applicant was residing and continues to reside outside the United States in her mother's legal and physical custody. The family's visit to the United States in May 2010 was temporary and did not impact the applicant's residence in Paraguay or her mother's custody.”

Apr062011_01E2309.pdf Appeal SUSTAINED

“Legal custody vests by virtue of "either a natural right or a court decree". See Matter of Harris,15 I&N Dec. 39, 41 (BIA 1970). The applicant's parents were divorced six months prior to the applicant's birth; therefore, the applicant's parents' divorce decree does not address the issue of custody. Where, as in this case, the parents have legally separated but there is no formal, judicial custody order, the parent having "actual, uncontested custody" is be regarded as having "legal custody" of the child. See Bagot v. Ashcroft, 398 F.3d 252, 266-67 (3d Cir. 2005) (citing Matter of M-, 3 I&N Dec. 850, 856 (BIA 1950)). The applicant, through counsel, claims that he was in his father's "actual, uncontested custody" and, in support of his claim, the applicant submits a number of detailed and credible affidavits, photographs, tax and school records indicating that he was residing with his father between 1989 and 1991. In addition, the applicant's appeal is accompanied by a corrected "Sworn Affidavit" executed by the applicant's mother before two witnesses purporting to transfer custody of the applicant to his father in 1988.”

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I previously commented on April 7, 2011 Decisions #1-3 back in October 2011 as follows:

AAO is Improving Its Treatment of N-600 Untimely Rejections Observations of October 20, 2011

The AAO issued some improved formulaic rejections of untimely filed Appeals that did not warrant treatment as Motions to Reopen and/or Reconsider.

They look like this:

DISCUSSION: The application was denied by the Field Office Director, [Office Name] and the matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be rejected as untimely filed. In order to properly file an appeal, the regulation at 8 C.F.R. § 103.3(a)(2)(i) provides that the affected party must file the complete appeal within 30 days after service of the unfavorable decision. If the decision was mailed, the appeal must be filed within 33 days. See 8 C.F.R. § 103.5a(b). The date of filing is not the date of mailing, but the date of actual receipt. See 8 C.F.R. § 103.2(a)(7)(i). The record indicates that the director issued the decision on [Date], and properly gave notice to the applicant that he had 33 days to file the appeal. The director's decision specifically informed the applicant that the appeal may not be filed directly with the AAO, but that it had to be filed with the [Named] Field Office. The Form I-290B, Notice of Appeal, was received by the [Named] Field Office on [Date], more than 33 days after the decision was issued. Accordingly, the appeal was untimely filed and must be rejected.FN1 ORDER: The appeal is rejected.

In each of these cases, AAO did actually review the Record of Proceeding (ROP) de novo in order to determine if the case met the requirements to be treated as a Motion. It found that these cases did not meet that threshold and added a footnote in order to clear up the basis for disposition and make practical use of the effort spent performing that de novo review. This simple step properly prepares the record as an administratively final agency decision suitable for judicial review.

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The following decisions were located in October 2011. No decisions dated after August 2010, had been posted in over a year and then one additional December 2010, decision (sustained) and the several more dated in 2011, were added. Several more 2011 “sustains” are posted along with the following untimely rejections. The footnotes of note are presented below, each link with it is associated. Apr072011_01E2309.pdf Neither the Immigration and Nationality Act nor the regulations grant the AAO authority to extend the 33-day time limit for filing an appeal. The application was denied for failure to establish eligibility for U.S. citizenship under sections 320 or 322 of the Act, 8 U.S.C. § 1431 and 1433. The applicant submitted additional documentary evidence subsequent to his appeal, but no argument or explanation as to how they pertain to the applicant's claim of citizenship under the provisions cited or any other section of the Act. The appeal therefore does not meet the requirements of a motion to reopen or reconsider under the regulations at 8 C.F.R. § 103.5(a)(2) and (3) and therefore need not he treated as such. See 8 C.F.R. § 103.3(a)(2)(v)(B)(2). Apr072011_02E2309.pdf Neither the Immigration and Nationality Act nor the regulations grant the AAO authority to extend the 33-day time limit for filing an appeal. The application was denied for failure to submit evidence to demonstrate the applicant was in his father's legal and physical custody prior to the applicant's eighteenth birthday. The appeal is not accompanied by any additional evidence and there is no evidence in the record to establish that the applicant was in his father's custody. The appeal therefore does not meet the requirements of a motion to reopen or reconsider under the regulations at 8 C.F.R. § 103.5(a)(2) and (3) and therefore need not he treated as such. See 8 C.F.R. § 103.3(a)(2)(v)(B)(2). Apr072011_03E2309.pdf Neither the Immigration and Nationality Act nor the regulations grant the AAO authority to extend the 33-day time limit for filing an appeal. The application was denied, in part, because the applicant was over the age of 18 years when he obtained lawful permanent residence and therefore could not derive U.S. citizenship under former section 321 of the Act. The appeal is not accompanied by any evidence or argument overcoming the applicant's statutory disqualification or otherwise indicating that he is eligible for U.S. citizenship under this or any other

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provision of the Act. The appeal therefore does not meet the requirements of a motion to reopen or reconsider under the regulations at 8 C.F.R. § 103.5(a)(2) and (3) and therefore need not he treated as such. See 8 C.F.R. § 103.3(a)(2)(v)(B)(2). Apr072011_04E2309.pdf Appeal SUSTAINED AAO reassessed the evidence and the appeal was accompanied by a brief which aided in its de novo review.

“The applicant's claim has reasonable support and, although the affidavits submitted were executed by his family members, they are detailed and consistent. An inconsistency noted by the field office director was explained in the applicant's brief. 'She lack of employment records or social security information is also explained by the nature of the applicant's father's employment as a migrant farm worker. The evidence in the record establishes that the applicant's father was physically present in the United States for 10 years prior to 1964, five of which were after the age of 14.”

Apr072011_05E2309.pdf Appeal DISMISSED

“The field office director denied the application finding, in relevant part, that the applicant was admitted to the United States as a lawful permanent resident after her eighteenth birthday and therefore did not acquire U.S. citizenship under section 320 of the Act.”

Apr072011_06E2309.pdf Appeal REMANDED for further action and a new decision.

“The record contains a copy of the applicant's parents' divorce judgment. The document is in the Spanish language and a translation has not been provided by the applicant as required by the regulation at 8 C.F.R. 5 103.2(b)(3). It appears to contain a grant of "guardianship and care" to the applicant's mother, but orders the patria potestad to remain with both parents.1 The matter must be remanded to the director to determine, upon receipt from the applicant of the required translation, whether his parents' divorce judgment grants "responsibility for and authority over" him to both parents. The director shall also determine whether physical custody was transferred

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to the applicant's father upon the applicant's immigration to the United states.2 The director shall then issue a new decision which, if adverse to the applicant, shall be certified to the AAO for review. ORDER: The matter is remanded to the Miami Field Office for action consistent with this decision.” FN1 Patria Potestad is the "responsibility to support and maintain family members." Black’s Law Dictionary (8th ed. 2004). FN2 There is evidence in the record suggesting that the applicant resided with his father after his immigration to the United States and before his eighteenth birthday.

Apr132011_01E2309.pdf Motion GRANTED but Appeal remains DISMISSED

“DISCUSSION: The Application for Certificate of Citizenship (Form N-600) was denied by the director of the [REDACTED] Field Office and the Administrative Appeals Office (AAO) dismissed the subsequent appeal. The matter is again before the AAO on motion. The motion will be granted, the appeal will remain dismissed and the application will remain denied.”

* * * * * “Finally, the record indicates that the applicant was not residing with his stepmother at the time of her naturalization in 1973, as required for him to derive citizenship through her under former section 321(b) of the Act. In these proceedings, the applicant asserts that he was raised and adopted by his stepmother. However, the record contains a Presentence Investigation Report dated March 3, 2004, which conveys the applicant's statement that he moved to the United States when he was five years old with his grandmother, who raised him. . According to the report, the applicant lived with his grandmother and grandfather in [PLACE NAME #1] for three years and then they all moved to [PLACE NAME #2]. The report further states resided with his father and stepmother for a few months when he was in his twenties (after 1982). The applicant's July 19, 1967 immigrant visa application also stated that he was coming to the United States to join his father and his grandmother. A May 27, 1966 letter accompanying the visa application and signed by the applicant's father and grandparents further confirmed that the applicant's grandmother would care for him. The applicant's Presentence Investigation Report and immigrant visa documents contradict the applicant's claim that he was adopted and raised by his

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stepmother as a child. Consequently, even if the applicant had established his relationship to and adoption by his stepmother, he has not shown that he was residing with her at the time of her naturalization in 1973.”

Apr262011_01E2309.pdf Appeal REJECTED as UNTIMELY

“The applicant seeks a certificate of citizenship claiming that he derived citizenship through his mother upon her naturalization. The director determined that the applicant failed to establish his eligibility for derivative citizenship because his parents were married after his birth, his parents had not legally separated and his father did not naturalize prior to the applicant's eighteenth birthday1” FN1 The field office director assessed the applicant's eligibility for derivative citizenship under section 320 of the Act, 8 U.S.C. § 1431, although former section 321 of the Act, as in effect at the time of the applicant's mother's naturalization, is the applicable law. See Minasyan v. Gonzales, 401 F.3d 1069, 1075 (9th Cir. 2005) (the applicable law for derivative citizenship is that in effect at the time the critical events giving rise to eligibility occurred). Nonetheless, the field office director's decision noted the relevant facts of record which rendered the petitioner ineligible to derive citizenship under former section 321 of the Act, 8 U.S.C. § 1432 (1989).

Apr292011_01E2309.pdf Appeal DISMISSED [This is a MUST read!] The applicant did not derive under § 321 because he did not enter the U.S. as an Immigrant until he was 21 years old.

“On appeal, counsel asserts that U.S. Citizenship and Immigration Services (USCIS) should be estopped from denying the application because of the Department of State's delay and misconduct in processing the applicant's immigrant visa, which prevented him from entering the United States prior to his eighteenth birthday. Neither the applicable law nor the facts of this case support counsel's claim.”

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May022011_01E2309.pdf Appeal REJECTED as UNTIMELY

FN Neither the Immigration and Nationality Act nor the regulations grant the AAO authority to extend the 33-day time limit for filing an appeal. The applicant's appeal does not meet the requirements of a motion to reopen or reconsider under the regulation at 8 C.F.R. § 103.5(a)(2) and therefore need not be treated as such. See 8 C.F.R. § 103.3(a)(2)(v)(B)(2). The appeal is not accompanied by any additional evidence or argument to overcome the deficiencies in the applicant's citizenship claim noted in the director's decision.

Jun032011_02E2309.pdf Appeal DISMISSED

“The record does not establish, by a preponderance of the evidence, that the applicant's mother was physically present in the United States for five years between 1957 and 1968. The affidavits submitted suggest that the applicant's mother was in the United States during that time, but not that she was here for five years. The applicant therefore has failed to establish that his mother was physically present in the United States for the period required by former section 301(a)(7) of the Act and did not acquire U.S. citizenship at birth under this or any other provision of the Act.”

Jun032011_04E2309.pdf Appeal DISMISSED Applicant did not derive under § 321 because he did not enter the U.S. as an Immigrant until after age 18 (he was 21). Dad naturalized August 15, 2006. The applicant turned on January 4, 2007. The applicant was admitted to the United States on August 15, 2010. I have to wonder WHY an N-600 was filed in the first place in that he had zero chance of approval. What’s the rush? Was he taken advantage of by an unscrupulous or grossly incompetent practitioner or is he already in Removal Proceedings? IF he is otherwise eligible he can file his own N-400 on or after May 17, 2015.

“The director determined that the applicant was ineligible for a certificate of citizenship because he was over the age of eighteen when he became a lawful permanent resident. See Decision of the Field Office Director. The application was denied accordingly. Id. On appeal, the applicant contends that he should be allowed to become a U.S. citizen because his father and his father's parents are U.S. citizens, and because he wishes to fulfill his American dream. See Form I-290B, Notice of Appeal.”

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Jul122011_02E2309.pdf Appeal DISMISSED

“The record establishes that the applicant was legitimated by his father as a result of his parents' marriage in 2002. See Applicant's Birth Certificate. The applicant's father was born in Louisiana on August 16, 1948. At issue in this case is whether the applicant's father agreed in writing to provide financial support for the applicant until his eighteenth birthday. The affidavits of the applicant's parents and other family members suggest that the applicants' father was involved in the applicant's life and may have indeed provided him financial support, but there is no contemporaneous document in the record whereby the applicant's father agreed to financially provide for the applicant until his eighteenth birthday as is required by section 309(a)(3) of the Act. The applicant cannot fulfill the requirements of section 309(a) of the Act, and therefore did not acquire U.S. citizenship at birth through his father.”

The lesson to be learned from this is that unwed USC fathers can easily take care of these issues by registering the birth abroad in a timely manner. The U.S. State Department has standard forms that address this issue very simply. Jul122011_04E2309.pdf Appeal DISMISSED Applicant did not derive under § 321 because his parents did not have legal separation or divorce prior to his 18th birthday. The applicant’s eighteenth birthday was on February 27, 1985. I have to ask: Is he in Removal Proceedings and this was his only possible defense against removal? It is an all too real fact that many people in Removal Proceedings file these pointless N-600 because of poor legal advice or as a delaying tactic. However this does not really delay anything unless someone (a liberal or naive IJ, or incompetent ICE Counsel) permits administrative closure, termination, or continuance for the meritless N-600 case to be adjudicated. Jul192011_01E2309.pdf Appeal DISMISSED Applicant did not derive via current § 320 (as of CCA’s effective date) because, although she obtained a “greencard” she has been living (“residing”) in Mexico with her mom and other family and merely crosses the border to visit sometimes. Dad was commuting back and forth, spending weekends, vacations, and holidays with the family in Mexico and staying with his brother in the U.S. while working. If they had acted sooner, she could probably have been successful with an N-600K but now she’s too old for that. It’s merely a case of bad planning.

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Jul212011_04E2309.pdf Appeal REJECTED as UNTIMELY This is a piss-poor decision which states zero about the grounds for denial. The underlying Director’s Decision had better be well-written because it is what could end up being reviewed in a Federal Court.

FN Neither the Immigration and Nationality Act nor the regulations grant the AAO authority to extend the 33-day time limit for filing an appeal. This appeal does not meet the requirements of a motion to reopen or reconsider under the regulations at 8 C.F.R. §§ 103.5(a)(2) and (3), and therefore need not be treated as such. See 8 C.F.R. § 103.3(a)(2)(v)(B)(2). Indeed, the appeal is not accompanied by any additional evidence or any argument in support of the applicant's citizenship claim.

Jul252011_02E2309.pdf Appeal SUSTAINED

“The director determined that the applicant failed to establish eligibility for derivative citizenship because his parents' divorce decree placed him in the legal custody of his mother. See Decision of the Director, dated July 1, 2008; Decision on Motion to Reconsider, dated Mar. 6, 2009. The application was denied accordingly. Id. On appeal, the applicant contends through counsel that the New York state court's child custody determination was facially invalid because the court did not have subject matter Jurisdiction to make a custody determination. See Form I-290B, Notice of Appeal, filed Apr. 8, 2009; Memorandum of Law in Support of Appeal, dated Apr. 7, 2009. The applicant also submits the decision of an immigration judge (IJ) terminating the applicant's removal proceedings based on a finding that the applicant derived U.S. citizenship through his father. See Written Decision and Order of the IJ, dated Dec. 15, 2009.”

While the IJ’s Decision is not binding on USCIS, this time AAO agreed with it.

“Whether a parent has "legal custody of the child" is based on a judicial determination or a judicial or statutory grant of custody. See Matter of M-, 3 I&N Dec. 850,856 (CO 1950) (determining "legal custody" under the derivative citizenship provision set forth in section 314( c) of the Nationality Act of 1940). In the absence of a judicial or statutory decree, "the parent having actual uncontested custody is to be regarded as having 'legal custody' of the person concerned for the purpose of determining that person's status[.]

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... " Id. (concluding that child who came to the United States to live with her father was in his father's legal custody). Here, the New York state court entered a judgment dissolving the applicant's parents' marriage on February 26, 1988. The state court further ordered that all of the children of the marriage, including the applicant, would be under the custody of the applicant's mother. At the time of the divorce, however, the applicant resided in French Guiana, and did not reside in or have sufficient contacts with New York. In a similar case, the U.S. Court of Appeals for the Third Circuit held that the New York state court did not have jurisdiction under the Uniform Child Custody Jurisdiction Act to issue a custody order. See Bagot v. Ashcroft, 398 F.3d 252, 264-65 (3d Cir. 2005) (holding that a nearly identical New York state court determination awarding custody of the applicant to his mother was facially invalid). The facts of this case are indistinguishable from Bagot. Accordingly, the custody order was invalid. Without a valid judicial determination of custody, the parent with actual uncontested custody over the applicant is regarded as having legal custody. See Matter of M-. 3 I&N Dec. at 856. Here, the evidence shows that the applicant was in his father's actual uncontested custody after his parents' divorce, and while he was under the age of 18 years. See Affidavits of the Applicant's Parents and Sisters; School Records; and 1999 Tax Return (showing that the applicant was in his father's physical custody after arrival in the United States in 1996); see also Immigrant Visa (showing applicant's intent to reside at his father's address in New York); Application for Immigrant Visa (same). Accordingly, the applicant's father is regarded as having legal custody over the applicant as required by former section 321(a)(3) of the Act. See id. Because the applicant's father became a U.S. citizen by naturalization and the applicant was admitted to the United States as a lawful permanent resident when he was 13 years old, the applicant satisfied the remaining requirements of former section 321(a)(4), (5) of the Act.”

Aug022011_01E2309.pdf Appeal DISMISSED and N-600K remains denied. The N-600K applies to only one section of the Act (the one in the title of the form). Unlike an N-600 (or N-400, or I-485), where the possibility exists for adjudicator to identify the correct section of law to apply when the applicant was wrong in their selection, the N-600K is too limited for that eventuality. She is a USC!

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“The director denied the applicant's Form N-600K, Application for Citizenship and Issuance of Certificate Under Section 322, upon finding that the applicant and her U.S. citizen parent reside in the United States and the applicant is therefore ineligible for a certificate of citizenship under section 322 of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1433. The director also found that the applicant did not acquire U.S. citizenship at birth either under section 320 of the Act, 8 U.S.C. § 1433, because she is not a lawful permanent resident, or under section 301(g) of the Act, 8 U.S.C. §1401(g), because she could not demonstrate that her mother was physically present in the United States for the statutorily required period of time. On appeal, the applicant, through counsel, concedes that she is not eligible for U.S. citizenship under section 322 of the Act, but maintains that she acquired U.S. citizenship at birth through her mother. See Applicant's Brief. The applicant's appeal is accompanied by evidence of the applicant's mother's presence in the United States, namely her kindergarten and first grade school records. The applicant claims that she is eligible for a certificate of citizenship under section 301(g) of the Act.1”

FN1 In order to acquire U.S. citizenship at birth under section 301(g) of the Act, the applicant must establish that her mother was physically present in the United States for five years prior to her birth in 1996, two of which were after she attained the age of 14 (after 1976). The evidence submitted by the applicant, consisting of both documentary evidence and sworn statements, establishes that her mother was physically present in the United States from 1963 until 1969, and from 1991 to 1993. Therefore, the applicant has demonstrated that she acquired U.S. citizenship at birth under section 301(g) of the Act and would need to file a Form N -600, Application for Certificate of Citizenship, to obtain a certificate evidencing her status as a U.S. citizen.

Aug022011_02E2309.pdf Appeal DISMISSED [Seems to be a sibling of above.] Aug022011_03E2309.pdf Appeal DISMISSED

“The record indicates that the applicant obtained lawful permanent residency in 1987 and that his father naturalized in 1990. The applicant's eighteenth birthday was in 1994. The applicant has thus established that his U.S. citizen father naturalized and that he was admitted to the United States as a lawful permanent resident prior to his eighteenth birthday. At issue in this case is

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whether the applicant's father had legal custody of the applicant following his parent's 1978 divorce. Legal custody vests by virtue of "either a natural right or a court decree". See Matter of Harris, 15 I&N Dec. 39, 41 (BIA 1970). The applicant's parents' divorce decree includes a grant of custody to the applicant's mother. The synopsis of divorce decree submitted by the applicant indicates that the divorce was obtained by "mutual consent." The divorce decree itself indicates that both parties were present and mutually petitioned for divorce. Thus, there is no factual basis for counsel's claim that the custody award to the applicant's mother is defective.1 Legal custody of the applicant was awarded to his mother upon the applicant's parents' divorce. The record contains no evidence that the 1978 custody award to the applicant's mother was amended or altered by the court. Therefore, the applicant cannot establish that he was in his father's legal custody as required by former section 321(a)(3) of the Act.”

* * * * * FN1 Counsel's reliance on Bagot v. Ashcroft, 398 F.3d 252, 266-67 (3d Cir. 2005), is misplaced because, inter alia, it was a case arising in the Third Circuit Court of Appeals and not in this jurisdiction.

Aug032011_01E2309.pdf Appeal SUSTAINED, and the matter was returned to the Santa Ana Field Office for issuance of a Certificate of Citizenship.

“The term legal separation means "either a limited or absolute divorce obtained through judicial proceedings." Afeta v. Gonzales, 467 F.3d 402, 406 (4th Cir. 2006) (affirming the Board of Immigration Appeals' construction of the term legal separation as set forth in Matter of H, 3 I&N Dec. 742, 744 (BIA 1949)) (internal quotation marks omitted). A married couple, even when living apart with no plans of reconciliation, is not legally separated. Matter of Mowrer, 17 I&N Dec. 613, 615 (BIA 1981). Nevertheless, in the Ninth Circuit, under Minasyan, Supra at 1079, the date of separation listed on a California divorce judgment is the date of legal separation for immigration purposes. The divorce judgment in this case includes a note stating that the applicant was in his father's legal and physical custody since his parents' date of separation, April 4, 1987. The AAO is bound by Minasyan in this case, which also arises in the Ninth Circuit and involves a State of California divorce proceeding. Therefore, the applicant can establish that his parents were legally separated prior to his

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eighteenth birthday and that he derived citizenship through his custodial parent, his father, under former section 321(a)(3) of the Act.”

Aug092011_01E2309.pdf Appeal DISMISSED Applicant did not acquire citizenship at birth because her father did not meet the residence and presence requirement need for transmission. Derivation was inapplicable to this claim. The opportunity for “expedited naturalization of a child” was lost when she reached 18 years of age. Aug092011_02E2309.pdf Appeal DISMISSED

“The applicant was admitted to the United States as a lawful permanent resident in 2005, but her admission was erroneous. The applicant is currently in removal proceedings. She therefore did not automatically acquire U.S. citizenship under section 320 of the Act.”

Aug092011_03E2309.pdf Appeal DISMISSED [N-600K had to be reopened and denied after discovering that the applicant was adopted AFTER the age of 16.]

“The requirements for citizenship, as set forth in the Act, are statutorily mandated by Congress, and that U.S. Citizenship and Immigration Services (USCIS) lacks statutory authority to issue a certificate of citizenship when an applicant fails to meet the relevant statutory provisions set forth in the Act. A person may only obtain citizenship in strict compliance with the statutory requirements imposed by Congress. INS v. Pangilinan, 486 U.S. 875, 885 (1988). Even courts may not use their equitable powers to grant citizenship, and any doubts concerning citizenship are to be resolved in favor of the United States. Id. at 883-84; see also United States v. Manzi, 276 U.S. 463, 467 (1928) (stating that "citizenship is a high privilege, and when doubts exist concerning a grant of it ... they should be resolved in favor of the United States and against the claimant"). Moreover, "it has been universally accepted that the burden is on the alien applicant to show his eligibility for citizenship in every respect." Berenyi v. District Director, INS, 385 U.S. 630, 637 (1967).”

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Aug092011_04E2309.pdf Case REMANDED

“The director considered the applicant's claim under section 309 of the Act. Section 309 of the Act is not applicable to this case because the applicant was born prior to its effective date and because the applicant is claiming to have acquired U.S. citizenship through his mother, and not his father. The matter must therefore be remanded to the director for consideration of the applicant's claim under the Nationality Act, the applicable law at the time of the applicant's birth. The AAO notes that the record suggests that the applicant's parents were in a common law marriage. Should the director find that the applicant's parents were married, the applicant's citizenship claim would fall within the provisions of section 201(g) of the Nationality Act of 1940. The provisions of section 205 of the Nationality Act govern acquisition of U.S. citizenship by out of wedlock children. The director shall also consider the applicable retention requirements. FN1 The director shall issue a new decision which, if adverse to the applicant, shall be certified to the AAO for review.” FN1 Under former section 301(b) of the Act, 8 U.S.C. § 1401(b) a child who acquired citizenship at birth abroad must have been continuously physically present in the United States for a period of five years between the ages of fourteen and twenty eight in order to retain his or her U.S. citizenship. Former section 30I(c) of the Act, 8 U.S.C. § 1401(c), "applied the requirements of section 301(b) to persons born between May 24, 1934, and December 24, 1952, who were subject to, but had not complied with, and did not later comply with, the retention requirements of section 201(g) or (h) of the Nationality Act." See 7 FAM 1133.5-2(c). A two-year retention requirement was later substituted retroactively in 1972. See 7 FAM 1133.5-7. Public Law 95-432, effective October 10, 1978, subsequently repealed section 301(b) of the Act, and eliminated completely, the physical presence requirement for retention of U.S. citizenship. See 7 FAM 1133.2-2( d). However, the "[ c]hange was prospective in nature. It did not reinstate as citizens those who had ceased to be citizens by the operation of section 301(b) as previously in effect.' Id. Thus, "[p]ersons who were subject to section 301 (b) and reached age 26 before October 10, 1978, without entering the United States to begin compliance with the retention requirements lost their citizenship on their 26th birthday. See 7 FAM 1133.5-13(a) and (c). The applicant's 26lh birthday was on November 19, 1978 and he entered the United States in 1984.

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Aug092011_05E2309.pdf Appeal DISMISSED [N-600K]

“The record in this case reflects that the applicant is residing in Mexico while his U.S. citizen father resides in the United States. See e.g. Form N-600K, Application for Citizenship and Issuance of Certificate of Citizenship under Section 322; see also Declaration of Applicant's Father (indicating that he has resided in the United States "with few and brief interruptions"). The applicant therefore is ineligible for a certificate of citizenship under section 322( a)( 4) of the Act which provides for derivation of U.S. citizenship by children residing abroad in the custody of their U.S. citizen parent. The AAO notes that there is also no evidence that the applicant is, "temporarily present in the United States pursuant to a lawful admission, and is maintaining such lawful status" as is required by section 322(a)(5) of the Act. The applicant is statutorily ineligible for U.S. citizenship under section 322 of the Act which, in part, requires that the child be residing outside the United States in his U.S. citizen parent's custody. His appeal will therefore be dismissed.”

Aug152011_01E2309.pdf Appeal REJECTED as UNTIMELY The Appellate Decision gives no clue as to the basis for the underlying denial but does incorporate it by reference (sort of).

DISCUSSION: The application was denied by the Field Office Director, Dallas, Texas, and the matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be rejected as untimely filed. In order to properly file an appeal, the regulation at 8 C.F.R. § 103.3(a)(2)(i) provides that the affected party must file the complete appeal with the appropriate fee within 30 days after service of the unfavorable decision. If the decision was mailed, the appeal must be filed within 33 days. See 8 C.F.R. § 103.5a(b). The date of filing is not the date of mailing, but the date of actual receipt. See 8 C.F.R. § 103.2(a)(7)(i). The record indicates that the field office director issued his decision on January 4, 2011. It is noted that the field office director properly gave notice to the applicant that he had 33 days to file the appeal. See Decision of the Field Office Director. The Form 1-290B, Notice of Appeal, was received on

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February 8, 2011, which was 35 days after the decision was issued. Accordingly, the appeal was untimely filed and must be rejected.FN1 ORDER: The appeal is rejected. FN1Neither the Immigration and Nationality Act nor the regulations grant the AAO authority to extend the 33-day time limit for filing an appeal. This appeal does not meet the requirements of a motion to reopen or reconsider under the regulations at 8 C.F.R. §§ 103.5(a)(2) and (3), and therefore need not he treated as such. See 8 C.F.R. § 103.3(a)(2)(v)(B)(2).”

Aug172011_01E2309.pdf Appeal SUSTAINED It appears that AAO reassessed the same evidence under the appropriate standard. Aug182011_01E2309.pdf Appeal DISMISSED

“DISCUSSION: The Application for Certificate of Citizenship (Form N-600) was denied by the Field Office Director, Philadelphia, Pennsylvania, and came before the Administrative Appeals Office (AAO) on appeal. The AAO remanded the matter to the director and the director issued a new decision. That decision is now before the AAO on appeal. The appeal will be dismissed.”

* * * * * “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.”