The N-565 is filed without fee when there has been a clerical error made while preparing the certificate. This rarely happens because the N-400 applicant is required to review a computer generated Oath and Certificate Prep Sheet and indicate if the information thereon is correct. The information that is in the computer is what is used to print the certificate. Once you say it is OK, you cannot make a claim of clerical error. NOTE: this is for N-400's only. The N-600 certificate is prepared by hand and a clerical error is possible.
FROM:
http://www.uscis.gov/err/E3 - Appli...ecisions_Issued_in_2010/May032010_03E3343.pdf (A recent AAO dismissal of an appeal to a form N-565.)
On appeal, the applicant asserts that her Certificate of Naturalization contains an erroneous date of birth. In support of this assertion, counsel for the applicant submits a copy of her Resident Alien Card and a Form 1-181, Memorandum of Creation of Record of Lawful Permanent Residence showing her date of birth as September 16, 1943.
Section 338 of the Act provides the statutory authority relating to the contents of a Certificate of Naturalization. In addition, the specific regulations regarding the execution and issuance of Certificates of Naturalization are contained in 8 C.F.R. 338.5, and provide, in part, that:
(a) Whenever a Certificate of Naturalization has been delivered which does not conform to the facts shown on the application for naturalization, or a clerical error was made in preparing the certificate, an application for issuance of a corrected certificate, Form N-565, without fee, may be filed by the naturalized person.
(e) The correction will not be deemed to be justified where the naturalized person later alleges that the name or date of birth which the applicant stated to be his or her correct name or date of birth at the time of naturalization was not in fact his or her own name or date of birth at the time of naturalization.
Counsel asserts that it was clerical error on the part of United States Citizenship and Immigration Services (USCIS) not to catch and correct the applicant's mistaken date of birth at any of the steps in the certificate preparation process. The AAO notes, however, that the applicant swore under oath at her naturalization interview that the contents of her application were accurate and a review of the applicant's Form N-400 indicates that she specifically confirmed August 16, 1943 as her date of birth. Accordingly, the record establishes that the applicant's Certificate of Naturalization conforms to the facts in her Form N-400. As the applicant affirmed that her date of birth was August 16, 1943 at the time of her naturalization interview, the Director correctly found that the regulation at 8 C.F.R. 338.5(e) precludes USCIS from correcting the applicant's date of birth on her Certificate of Naturalization. In the present case, USCIS has no authority to make any corrections to the applicant's certificate of naturalization, and only a federal court with jurisdiction over the applicant's naturalization proceedings has the authority to order that an amendment be made to the applicant's Certificate of Naturalization, after a hearing in which the Government is provided an opportunity to present its
position on the matter. Such a hearing ensues pursuant to a motion to the court for an Order Amending a Certificate of Naturalization. See 8 C.F.R. 5 334.16(b). See also, Chan v. Immigration and Naturalization Service, 426 F. Supp. 680 (1976) and Varghai v. Immigration and Naturalization Service, 932 F. Supp. 1245 (1996).
8 C.F.R. 334.16(b) states in pertinent part that:
Wlhenever an application is made to the court to amend a petition for naturalization after final action thereon has been taken by the court, a copy of the application shall be served upon the district director having administrative jurisdiction over the territory in which the court is located, in the manner and within the time provided by the rules of court in which the application is made. No objection shall be made to the amendment of a petition for naturalization after the petitioner for naturalization has been admitted to citizenship if the motion or application is to correct a clerical error arising from oversight or omission. A representative of the Service [USCIS] may appear at the hearing upon such application and be heard in favor of or in opposition thereto. When the court orders the petition amended, the clerk of court shall transmit a copy of the order to the district director for inclusion in the Service file.
Based on the reasoning set forth above, the appeal will be dismissed without prejudice to the applicant's submitting a request to a U.S. Federal Court in accordance with the Act and Regulations.
ORDER: The appeal is dismissed.
