It looks like you have a bigger issue in establishing one piece of the puzzle. 309(a) INA [8 USC 1409(a)] requires a very specific standard of proof quite different than the usual preponderance of the evidence standard associated with other sections of U.S. Citizenship law. See
Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010) it is available on uscis.gov/ News in a release about two new Precedent Decision on 10/20/2010.
If the N-600 gets denied you have appeal rights but USCIS won't explain them very well. This is what you need to know.
If you disagree with the decision on your N-600 you may file an
Appeal on Form I-290B, with fee, and with any additional evidence to be considered and/or a brief identifying specifically any erroneous conclusion of law or statement of fact along with legal references and/or specifying the evidence that you believe was misinterpreted with an explanation of the facts and evidence as you interpret them.
An appeal must be filed with the office that denied your case within 30 days of the date of the Notice, 33 days if received by mail.
If an appeal is not filed within the time allowed,
a new N-600 may not be filed, see 8 CFR 341.6. Instead, if at a later date you wish to pursue this citizenship claim anew, you may file, pursuant to 8 CFR 341.6, a form I-290B, with the current fee as of the date of that filing, for:
1.) a late
Motion to Reopen with additional evidence and/or,
2.) a late
Motion to Reconsider along with a brief identifying specifically any erroneous conclusion of law or statement of fact, along with legal references, and/or identifying the evidence that you believe was misinterpreted with an explanation of the facts as you interpret them.
You must exhaust the administrative appeal process afforded under the law by getting a decision from USCIS' AAO (Administrative Appeals Office) before you may seek judicial review of the agency decision in this case, which would be to file a lawsuit 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 by an IJ (Immigration Judge) following a BIA (Board of Immigration Appeals) Dismissal of an appeal of a Removal Order.
As to validity of 309(a) INA [8 USC 1409(a)], that issue has already gone to the U.S. Supreme Court.
Tuan Anh Nguyen v. INS , 533 U.S. 53 (2001)
available at: (
http://oyez.org/cases/2000-2009/2000/2000_99_2071)
(last visited Tuesday, October 26, 2010).
FROM That Decision:
The general requirement for acquisition of citizenship by a child born outside the United States and its outlying possessions and to parents who are married, one of whom is a citizen and the other of whom is an alien, is set forth in 8 U.S.C. § 1401(g). The statute provides that the child is also a citizen if, before the birth, the citizen parent had been physically present in the United States for a total of five years, at least two of which were after the parent turned 14 years of age.
As to an individual born under the same circumstances, save that the parents are unwed, §1409(a) sets forth the following requirements where the father is the citizen parent and the mother is an alien:
“(1) a blood relationship between the person and the father is established by clear and convincing evidence,
“(2) the father had the nationality of the United States at the time of the person’s birth,
“(3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and
“(4) while the person is under the age of 18 years–
“(A) the person is legitimated under the law of the person’s residence or domicile,
“(B) the father acknowledges paternity of the person in writing under oath, or
“(C) the paternity of the person is established by adjudication of a competent court.”
In addition, §1409(a) incorporates by reference, as to the citizen parent, the residency requirement of §1401(g).
When the citizen parent of the child born abroad and out of wedlock is the child’s mother, the requirements for the transmittal of citizenship are described in §1409(c):
“(c) Notwithstanding the provision of subsection (a) of this section, a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person’s birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.”
Section 1409(a) thus imposes a set of requirements on the children of citizen fathers born abroad and out of wedlock to a noncitizen mother that are not imposed under like circumstances when the citizen parent is the mother. All concede the requirements of §§1409(a)(3) and (a)(4), relating to a citizen father’s acknowledgment of a child while he is under 18, were not satisfied in this case. We need not discuss §1409(a)(3), however. It was added in 1986, after Nguyen’s birth; and Nguyen falls within a transitional rule which allows him to elect application of either the current version of the statute, or the pre-1986 version, which contained no parallel to §1409(a)(3). See Immigration and Nationality Act Amendments of 1986, 100 Stat. 3655; note following 8 U.S.C. § 1409; Miller, supra, at 426, n. 3, 432 (opinion of Stevens, J.). And in any event, our ruling respecting §1409(a)(4) is dispositive of the case.
As an individual seeking citizenship under §1409(a) must meet all of its preconditions, the failure to satisfy §1409(a)(4) renders Nguyen ineligible for citizenship.
END QUOTE
Print this out and show your attorney.
Talk it over with your attorney.
I don't know all the specific details of your situation and have not seen your evidence so all I can say is Good Luck, let us know what happens next.
Bye,
