N-600 Is Supposed to Be Denied on the Merits-Not Abandoment

by Joseph P. Whalen

I. Introduction 

I believe that citizenship is the highest and most highly valued benefit bestowed by the Immigration and Nationality Act and  apparently so does Congress. The legal landscape concerning someone's ability to obtain recognition of citizenship is complex and fraught with pitfalls and misconceptions.  USCIS and AAO show signs of confusion in their decisions. The law pertaining to citizenship allows an applicant to seek judicial review of the subject.  AAO is still missing the mark on this issue. The N-600 regs specify the procedures to be followed in cases of citizenship claims to be adjudicated by USCIS domestically  versus a passport application or registration of a citizen board abroad which is handled by the State Department.  Such claims are addressed by 8 USC §1503 (INA §360), see below in section II of this article. 

AAO is failing to recognize that the regulation directly addressing a particular benefit request trumps the general purpose regulation that conflicts with it. AAO is also still failing to advise applicants of their right to judicial review which is their next level of review beyond AAO in a citizenship claim case.  

In In Re: 12541721, (AAO MAR. 15, 2021) AAO embarrassingly states as follows: 

The Applicant seeks a Certificate of Citizenship to reflect that she derived U.S. citizenship from her father under section 320 of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1431. 

The Director of the New York, New York Field Office denied the Form N-600 as abandoned, after the Applicant did not respond to a request for additional evidence in her case. 

On appeal, the Applicant claims that she did not receive the Director's request for additional evidence, and she indicates that she is now submitting the documentation. 

In these proceedings, it is the Applicant's burden to establish eligibility for the requested benefit. 8 C.F.R. § 341.2(c). Upon de novo review, we will reject the appeal. 

Department of Homeland Security regulations provide, in pertinent part, at 8 C.F.R. § 103.2(b)(13) that: 

If the petitioner or applicant fails to respond to a request for evidence ... by the required date, the benefit request may be summarily denied as abandoned, denied based on the record, or denied for both reasons. The regulations state, in pertinent part, at 8 C.F.R. § 103 .2(b )(15) that: [A] denial due to abandonment may not be appealed, but an applicant or petitioner may file a motion to reopen under § 103.5 .... [D]enial due to abandonment does not preclude the filing of a new application or petition with a new fee[.]1 In the present matter, the record reflects that the Director denied the Applicant's Fonn N-600 due to abandonment. Although we note that the Director indicated in the denial letter that the Applicant could appeal the decision to our office, the regulations clearly reflect at 8 C.F.R. § 103.2(b)(15) that a denial due to abandonment cannot be appealed. Accordingly, we must reject the appeal. 

1 The official having jurisdiction over a motion is the official who made the latest decision in the proceeding, in this case the Director of the New York, New York Field Office. See 8 C.F.R. § 103.5(a)(1)(ii). 

AAO restricted its review to the denial due to abandonment regulation which is a general purpose regulation that is subordinate to the more direct benefit specific regulation. In this case 8 CFR §341.5 carries more weight than 8 CFR §103.2(b)(15).  8 CFR §341.5 is the controlling regulation and it grants appeal rights without a distinction of the basis for denial.  Prior to the 2011 revision, there was a distinction but it seems that when the regulation was revised in 2011, the critical language was dropped. This appears to be a clear error that needs fixing.  AAO’s de novo review wasn’t truly de novo after all. They missed the controlling regulation and improperly rejected the appeal.

II. Statutory Provision Under Discussion.

8 USC §1452 (INA §341) Certificates of citizenship or U.S. non-citizen national status; procedure

(a) Application to Attorney General [Secretary of Homeland Security] for certificate of citizenship; proof; oath of allegiance

A person who claims to have derived United States citizenship through the naturalization of a parent or through the naturalization or citizenship of a husband, or who is a citizen of the United States by virtue of the provisions of section 1993 of the United States Revised Statutes, or of section 1993 of the United States Revised Statutes, as amended by section 1 of the Act of May 24, 1934 (48 Stat. 797), or who is a citizen of the United States by virtue of the provisions of subsection (c), (d), (e), (g), or (i) of section 201 of the Nationality Act of 1940, as amended (54 Stat. 1138), or of the Act of May 7, 1934 (48 Stat. 667), or of paragraph (c), (d), (e), or (g) of section 1401 of this title, or under the provisions of the Act of August 4, 1937 (50 Stat. 558), or under the provisions of section 203 or 205 of the Nationality Act of 1940 (54 Stat. 1139), or under the provisions of section 1403 of this title, may apply to the Attorney General] [Secretary of Homeland Security] for a certificate of citizenship. Upon proof to the satisfaction of the Attorney General [Secretary of Homeland Security] [Secretary of Homeland Security] that the applicant is a citizen, and that the applicant's alleged citizenship was derived as claimed, or acquired, as the case may be, and upon taking and subscribing before a member of the Service within the United States to the oath of allegiance required by this chapter of an applicant for naturalization, such individual shall be furnished by the Attorney General [Secretary of Homeland Security] with a certificate of citizenship, but only if such individual is at the time within the United States.

8 USC §1503 m(INA § 360)   Denial of rights and privileges as national

(a) Proceedings for declaration of United States nationality

If any person who is within the United States claims a right or privilege as a national of the United States and is denied such right or privilege by any department or independent agency, or official thereof, upon the ground that he is not a national of the United States, such person may institute an action under the provisions of section 2201 of title 28 against the head of such department or independent agency for a judgment declaring him to be a national of the United States, except that no such action may be instituted in any case if the issue of such person's status as a national of the United States (1) arose by reason of, or in connection with any removal proceeding under the provisions of this chapter or any other act, or (2) is in issue in any such removal proceeding. An action under this subsection may be instituted only within five years after the final administrative denial of such right or privilege and shall be filed in the district court of the United States for the district in which such person resides or claims a residence, and jurisdiction over such officials in such cases is conferred upon those courts.

III. Resorting to the court.

When an individual believes that (s)he is a United States Citizen the law allows them to seek recognition of citizenship all the way to the Supreme Court, Such a journey begins with a request for recognition to either the State Department if abroad (with one small exception for military dependents residing abroad), or with USCIS if present in the United States.  The course taken to judicial review varies depending upon the applicant’s situation. If the applicant is in Removal Proceedings they must take their administrative journey through the Department of Justice. If not in proceedings before an Immigration Judge (IJ), they file an N-600 with USCIS and would travel through AAO. It is also possible to file a motion and request the IJ to suspend, administratively close, or terminate proceedings on the basis that ICE has failed to prove alienage, and allow the applicant to file an N-600.  

28 USC §2201. Creation of remedy

(a) In a case of actual controversy within its jurisdiction, except with respect to Federal taxes other than actions brought under section 7428 of the Internal Revenue Code of 1986, a proceeding under section 505 or 1146 of title 11, or in any civil action involving an antidumping or countervailing duty proceeding regarding a class or kind of merchandise of a free trade area country (as defined in section 516A(f)(9) of the Tariff Act of 1930), as determined by the administering authority, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.

IV. The pertinent regulation for N-600 Denials.

When 8 CFR  §341 was promulgated in 1985, it was stressed in the Federal Register notice that a citizenship claim case should always be decided on the merits.  This strongly suggested that the intent of the agency at that time was that such cases should not be denied as abandoned. Current section 341.5(d) explicitly states that there is a right to appeal.  Section 341.5(e) explicitly states that another application would be rejected and the applicant would be advised to file a motion instead.   

(a) Adjudication. USCIS may adjudicate the application only after the appropriate approving official has reviewed the report, findings, recommendation, and endorsement of the USCIS officer assigned to adjudicate the application.

(b) Approval. If the application is granted, USCIS will prepare a certificate of citizenship and, unless the claimant is unable by reason of mental incapacity or young age to understand the meaning of the oath, he or she must take and subscribe to the oath of renunciation and allegiance prescribed by 8 CFR 337 before USCIS within the United States. Except as provided in paragraph (c), delivery of the certificate in accordance with 8 CFR 103.2(b)(19) and 8 CFR 103.8 must be made in the United States to the claimant or the acting parent or guardian.

(c) Approval pursuant to section 322(d) of the Act. Persons eligible for naturalization pursuant to section 322(d) of the Act may subscribe to the oath of renunciation and allegiance and may be issued a certificate of citizenship outside of the United States, in accordance with 8 U.S.C. 1443a.

(d) Denial. If USCIS denies the application, the applicant will be furnished the reasons for denial and advised of the right to appeal in accordance with 8 CFR 103.3.

(e) Subsequent application. After an application for a certificate of citizenship has been denied and the time for appeal has expired, USCIS will reject a subsequent application submitted by the same individual and the applicant will be instructed to submit a motion to reopen or reconsider in accordance with 8 CFR 103.5. The motion must be accompanied by the rejected application and the fee specified in 8 CFR 106.2.

[76 FR 53804, Aug. 29, 2011, as amended at 85 FR 46929, Aug. 3, 2020]

The paragraph above is awkwardly written.  It also wrongly assumes that an applicant would submit a second or successive N-600 applications and would thus be further instructed to file a motion instead. The paragraph above that one explicitly states that the applicant has the right to appeal according to §103.3. Quite unfortunately, the original intent expressed when the regulation was written in 1985 has been lost on USCIS and its officers. The Federal Register notice 50 FR 39649, Sept. 30, 1985, contains additional background information that is now lost on today’s USCIS and AAO officers. It was the intent in 1985, that N-600 should always be denied on the merits.

8 CFR §341.5 is controlling and prohibits a new application. A denied applicant is restricted to filing a Motion and it is not time or number barred until a Final Agency Decision is issued and directs the applicant to file a Petition for Declaratory Judgement of United States Nationality (Citizenship) in a U.S. District Court under INA § 360(a) [8 U.S.C. §1503(a)] and pursuant to 28 U.S.C. § 2201. The existence of concurrent Removal Proceedings would preclude U.S. District Court judicial review under this section and restrict review to a Petition for Review in a U.S. Circuit Court of Appeals of any Removal Order following a BIA Dismissal of a Removal Order under 8 USC § 1252(b) [INA § 242(b)]. The Circuit Courts routinely transfer many such case District Courts to further develop the record by taking testimony and new evidence.

The  preamble to the regulatory change to 8 CFR 341 found in 50 FR 39649, Sept. 30, 1985, reveals the agency’s intent in changing the regulation in the first place.

SUMMARY: This final rule clarifies and affirms the requirement that a decision be issued and the applicant be notified in all cases involving an application for a Certificate of Citizenship, and specifically includes cases which are closed administratively. Additionally, minor technical amendments, including removing sexist language, are made. EFFECTIVE DATE: September 30,1985.

Today, we make a distinction between administrative closing, denials due to a lack of prosecution, and denials due to abandonment. In 1985, they were all the same thing.  The current regulation split the following and made alterations. The regulation was changed in 1985 to read as follows.

8 CFR 341.6 Denial of application.  [50 FR 39649, Sept. 30, 1985]

If it is the decision of the district director to deny the application for a Certificate of Citizenship, the applicant shall be furnished the reasons for denial and advised of the right to appeal in accordance with the provisions of 8 CFR 103.3(a). After an application for a Certificate of Citizenship has been denied and the appeal time has run, a second application submitted by the same individual shall be rejected and the applicant instructed to submit a motion for reopening or reconsideration in accordance with 8 CFR 103.5. The motion shall be accompanied by the rejected application and the fee specified in 8 CFR 103.7 reduced by the amount of the fee paid with the rejected application. A decision shall be issued with notification of appeal rights in all Certificate of Citizenship cases, including any case denied due to the applicant's failure to prosecute the application.

Whether that last sentence is interpreted to mean that an application may be denied for a lack of prosecution or not, it still was meant to give appeal rights. 

V. Where the mistake was made.

In 2011, USCIS erred when it revised the N-600 regulations. The agency dropped critical language that had been fully justified in 1985.  The discussion in the 2011 FR Notice is void of any discussion as to why that pertinent language was dropped.  The Federal Register Notice, 76 FR 53804, Aug. 29, 2011,  explained the reason for a regulatory update as shown below. The explanation fails to account for dropping the pertinent language.  It seems obvious to me that whoever wrote that new regulation did not look back to the 1985 FR Notice but only the NDAA.  This omission was probably inadvertent and really should be restored.

This rule adds 8 CFR 316.6 and revises 8 CFR 316.5, 8 CFR 322.2, and 8 CFR 341.5 to conform to the amendments to the Act by the National Defense Authorization Act (NDAA 2008), Public Law 110–181, 122 Stat. 3 (Jan. 28, 2008). The NDAA 2008 provides certain immigration benefits for any qualifying spouse or child of a member of the Armed Forces. Specifically, the NDAA 2008 amended section 319(e) of the Act; 8 U.S.C. 1430(e), to allow certain spouses of members of the Armed Forces to count any qualifying time abroad as continuous residence and physical presence in the United States for purposes of naturalization and to permit such naturalization to occur outside the United States. INA section 319(e), 8 U.S.C. 1430(e); INA section 322(d), 8 U.S.C. 1433(d); 8 U.S.C. 1443a.

The courts have noticed this mistake and it has been brought to the attention of the agency. For example, see Angie Ortega v. Eric Holder, Jr., No. 08-3642 (7th Cir. 2010) The 7th Circuit concluded that Ms. Ortega’s claim to citizenship could not be dismissed due to bureaucratic  nonsense. In her case, the appellant had been in Removal Proceedings and USCIS relied on a jurisdictional impediment in order to deny her application. Ms. Ortega’s Removal Proceedings ended in her favor. It was terminated because the IJ believed she was a citizen. She then filed a Motion with USCIS and it was dismissed as untimely.  She knew that she could not file a subsequent N-600 and was supposed to file a Motion instead. The Court felt that this was adequate. So do I.  What was inadequate was the denial due to abandonment and AAO’s appellate review. Unfortunately, AAO is continuing to make this same mistake twelve years later.

VI. Suggested Course of Action for USCIS.

Since the rulemaking concerning the revision of the regs pertaining to the Filing of Motions and Administrative Appeals has once again been listed as a long term action in the Semiannual Regulatory Agenda this issue is ripe for discussion.  Please address this issue in revisions to 8 CFR § 103.3 and consider changing 8 CFR § 341.5 also. I would expressly forbid issuing a denial due to abandonment for cases involving citizenship claims. USCIS needs to train its adjudicators and appeals officers better on this point. Also, AAO should include a disclaimer in 8 CFR § 103.3 to the effect that a benefit specific regulation takes precedence over a general purpose regulation.

VII. Conclusion.

Please recognize the critical importance of answering the question of an individual’s citizenship status.  DHS needs to improve training for CBP and ICE Officers as well. USCIS should issue a precedent on this topic upon the reopening of an erroneously denied and dismissed N-600 case such as the one this article starts with.  This situation would be ripe for a class action lawsuit if some enterprising attorney sought out such clients. USCIS should avoid that unfortunate situation and treat this as a Policy matter. Try to do some damage control. Allow motions to be filed without further fee and render new decisions based on the evidence of record at the time of adjudication.

The abandonment denial regulation is in conflict with the N-600 regulation on the issue of filing a subsequent application. This tells me that it was a USCIS error to deny ANY N-600 as abandoned in the first place.  It was also an error for AAO to state that  the applicant could file a new N-600 when that option is forbidden.  The appeal rights issue MUST be clarified either by rulemaking or precedent but either of those routes takes a long time. 

In the interim, an AAO Adopted Decision issued as a Policy Memo with an update to the Policy Manual to follow would go a long way to resolving the issue and righting some wrongs perpetrated by USCIS and AAO.  The I-290B costs $675, while the N-600 costs $1,170.  The awkward regulation would require USCIS to issue refunds if it demanded the filing of a second or subsequent N-600 only so it could reject it. The regulation at 8 CFR 341.5 definitely needs correction.


That’s My Two-Cents, For Now!

About The Author

Joseph P. Whalen is an independent EB-5 consultant, advocate, trainer and advisor.

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