Go see an honest lawyer--ask Rajiv
Matter of Rocha, 10 I&N Dec 770 (BIA 1964) held:
"Notwithstanding that respondent acted in good faith and made a full disclosure of all the facts at the time of her application for a United States passport, the erroneous issuance to her of such a passport by an official or the U.S. Government does not bestow citizenship on her when she did not acquire U.S. Citizenship at birth abroad under any statute, and she is deportable as an alien who was excludable at the time of entry."
Matter of Villanueva, 19 I&N Dec. 101 (BIA 1984) held:
"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."
Villanueva makes a big stink about a passport being “conclusive proof” unless “void on its face” and states that a passport cannot be collaterally attacked in administrative proceedings. This is incorrect and incomplete. While INS on its own could not collaterally attack the passport administratively in 1984, just as USCIS cannot do so today; DOS could then and still can, indeed always could, easily revoke a passport administratively.
The phrase “void on its face” is not developed. That particular case was remanded to be further developed. Was that record developed to the point where the erroneous basis and invalidity of the wrongly issued passport was so obvious that the challenge to its validity was not a mere “collateral attack” but a head-on challenge? Was the erroneous issuance of the passport so blatantly obvious that it was easily revoked?
Current USCIS procedure is to hold the USCIS case in abeyance and consult DOS to reconsider and revoke a passport. Villanueva is overstated. It needs to be revisited and replaced with something more accurate and in tune with the current reality. It is interesting to note that Villanueva did not mention or overrule Rocha.
The remaining problems are: a clear definition of "void on its face" vs. "erroneous issuance to her of such a passport by an official or the U.S. Government does not bestow citizenship". In addition, DOS does not have the statutory authority to issue a passport to a derivative citizen except as delegated under 8 CFR 301.1 which only applies to one section of the INA dealing with one way to become a USC at birth.
Furthermore, the U.S. Supreme court has ruled on this issue AFTER Villanueva as follows and it relied on its own earlier holdings in doing so:
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 (1967). The applicant must meet this burden by establishing the claimed citizenship by a preponderance of the evidence. 8 C.F.R. § 341.2(c).
"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).
Lastly, you don't want to get in a position to be accused of fraud.
TITLE 18—CRIMES AND CRIMINAL PROCEDURE
18 USC § 1015. Naturalization, citizenship or alien registry.
(a) Whoever knowingly makes any false statement
under oath, in any case, proceeding, or
matter relating to, or under, or by virtue of any
law of the United States relating to naturalization,
citizenship, or registry of aliens; or
(blah, blah, blah...you can look it up)
(f) Whoever knowingly makes any false statement
or claim that he is a citizen of the United
States in order to register to vote or to vote in
any Federal, State, or local election (including
an initiative, recall, or referendum)—
Shall be fined under this title or imprisoned
not more than five years, or both. Subsection (f)
does not apply to an alien if each natural parent
of the alien (or, in the case of an adopted alien,
each adoptive parent of the alien) is or was a
citizen (whether by birth or naturalization), the
alien permanently resided in the United States
prior to attaining the age of 16, and the alien
reasonably believed at the time of making the
false statement or claim that he or she was a
citizen of the United States.
The exception in (f) is specific to voting but is the ONLY exception with regard to this brand of fraud.....