VIDEO: Immigration Judge Must Conduct Independent Hearing to Determine Whether Immigrant is Already a Citizen

What happens if USCIS denies an N-600 Certificate of Citizenship case and the person is put into removal proceedings? Hi, I’m Jim Hacking, immigration attorney here in St. Louis, Missouri.

The N-600 is the form that’s used to document the fact that an individual is a citizen as a matter of law. Many people are familiar with the N-400 which is the form in which you apply for naturalization, but the N-600 is the form that’s used to show that a person is already a citizen by operation of low. How does that work and what does that mean?

Typically, it happens in the derivative citizenship context. What that means is a parent becomes a US citizen, so by operation of law, their child who’s under the age of 18 also becomes a citizen.  They don’t go to the formal process of applying and taking the citizenship test and everything else, they just receive citizenship because their mom or their dad had obtained citizenship through the N-400 process.

The Board of Immigration Appeals recently handed down a case that discussed the N-600 and discussed what happens in the deportation case when the person that the government is trying to deport claims that they are a citizen by operation of law.

In this case, a young man had come to the United States and he believed he was a citizen. The USCIS and the Department of Homeland Security believed he was not a US citizen and they had put him into deportation proceedings. In fact, the man had filed an N-600 claiming that he had obtained the citizenship through his mother when she had naturalized before he turned 18.

Now, the USCIS for whatever reason doesn’t say in the opinion, denied the N-600 and placed him in removal proceedings. They determined that the young man was not a citizen as a matter of low and therefore he should be deported. Now, once that happens you go to see an immigration judge. The immigration judge is part of the Department of Homeland Security, but they’re not part of the organization that is trying to deport you. They’re supposed to be independent and to side independently whether or not the person is to be deported.

Interestingly in this case, the immigration judge when the case came before him said, “No, we don’t have to look at this. USCIS has already determined that the young man was not a citizen by operation of law, so I don’t need to think about it.” And he denied the case, the defense of naturalization by operation of law and he ordered the person deported.

The young man appealed to the Board of Immigration Appeals and that’s where a reported decision comes from. In that case, the Department of Homeland Security said, “Well, it was already determined by USCIS so therefore there is no role for the immigration judge to decide whether or not the person is a citizen.”

But the Board of Immigration Appeals said no. They said that the immigration judge had made a mistake and that the immigration judge should have done an independent analysis to determine whether or not the young man had received citizenship through his mother when she naturalized before he turned 18.

They reversed the deportation and they sent the case back to the immigration judge and they instructed the immigration judge to conduct a hearing to determine whether he believed that the person was citizen by operation of law and that the immigration judge was not bound by the decision made by the USCIS during the N-600 process.

So we can see it’s an interesting case. It shows that you don’t have to give up just when USCIS decides that you’re not a citizen that you have the right to have the immigration judge, hear your case. The Board of Immigration Appeals talked about the shifting burdens that happened in a case like this and they noted that this is a case where it was the government’s burden to show that the person was an alien that is that they have the obligation if the immigrant denies being an alien.

If they are claiming a citizenship, then it’s the government’s burden to establish that the person is in fact an alien and not a US citizen. That’s one other nice piece of information that comes out of the case that we can use. It shows that the burden is on the government.

At the same time, the board also made clear that because this young man was born abroad, there is a presumption of alienage.  That means that if you’re born overseas, you start with having to prove that you are not an alien that as an operation of law, you are a US citizen.

It’s an interesting case. It’s a short case but it’s an important one for people who believe that they should not be deported because they’re already citizen. If you find yourself in that situation or if you have questions about that or other parts of the deportation process, pick up the phone and give us a call, 314-961-8200 or you can email us at jim@hackinglawpractice.com. Thanks.