FALODUN

 Cite as 

 (BIA 2017)                             Interim Decision #3895




           Matter of Bright Idada FALODUN, Respondent
                               Decided June 2, 2017

                          U.S. Department of Justice
                   Executive Office for Immigration Review
                       Board of Immigration Appeals


(1) Unlike a Certificate of Naturalization, a certificate of citizenship does not confer
   United States citizenship but merely provides evidence that the applicant previously
   obtained citizenship status.
(2) The institution of judicial proceedings to revoke naturalization are not required to
   cancel a certificate of citizenship, which the Department of Homeland Security can
   cancel administratively upon a determination that an applicant is not entitled to the
   claimed citizenship status.
FOR RESPONDENT: Janet Hinshaw-Thomas, Accredited Representative, Lansdowne,
Pennsylvania
BEFORE: Board Panel: GRANT, MANN, and O’CONNOR, Board Members.

O’CONNOR, Board Member:


    In a decision dated June 6, 2016, an Immigration Judge denied the
respondent’s motion to terminate his removal proceedings and ordered
him removed after rejecting his claim to United States citizenship. The
respondent has appealed from that decision. The appeal will be dismissed.
The request for oral argument is denied. 

(e)(7) (2016).
    The issue on appeal is whether the respondent has established his claim
to United States citizenship and thus is not subject to removal proceedings.
We review this question of law de novo. See 

(d)(3)(ii).
    The respondent is a native and citizen of Nigeria who was born in Benin
City, Nigeria, on June 30, 1981. He obtained lawful permanent resident
status in 1996 as the stepchild of a United States citizen who was married to
the respondent’s alleged adoptive father. The respondent’s claim to United
States citizenship derives from the naturalization of his putative custodial
adoptive father in 1995. On February 17, 1998, the respondent was issued a
Certificate of Citizenship (Form N-560).
    In removal proceedings, evidence of foreign birth gives rise to a
rebuttable presumption of alienage, shifting the burden to the respondent to
come forward with evidence to substantiate his citizenship claim. Matter of
Rodriguez-Tejedor, 

 (BIA 2001) (citing Matter of
Leyva, 

 (BIA 1977)); Matter of Tijerina-Villarreal,
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 (BIA 1969). Assessing the respondent’s claim to
citizenship, the Immigration Judge noted that the evidence of record raises
serious questions whether the respondent has ever qualified as a United
States citizen. Specifically, the record includes an August 20, 2002, notice
of intent to cancel the respondent’s Certificate of Citizenship (“NOIC”)
issued by the former Immigration and Naturalization Service (“INS”),
alleging that the certificate had been obtained by fraud. The NOIC was based
on information obtained in connection with a Federal criminal investigation.
This investigation revealed that the respondent’s putative adoptive father was
actually his biological brother. Although the respondent claimed that his
biological father had died in 1983, records indicated that, as of 2002, he was
alive and living in Nigeria. The NOIC further alleged that the respondent
submitted a fraudulent adoption certificate. 1
    In his October 23, 2002, response to the NOIC, the respondent presented
a letter from an attorney specifically denying each of the allegations in the
NOIC. He also submitted a purported death certificate for the person the
respondent alleged was his biological father. The death certificate was issued
more than 8 months after this individual’s death and just days before the
respondent’s response to the NOIC was due.
    In a decision dated April 21, 2003, the District Director concluded that
the evidence the respondent provided in response to the NOIC was
insufficient to overcome the evidence supporting the cancellation of the
Certificate of Citizenship. He determined that the Nigerian adoption decree
submitted on the respondent’s behalf was fraudulent and that he did not
derive United States citizenship through his biological brother under former
section 321(a)(2) of the Immigration and Nationality Act, 

(a)(2) (1996), which was in effect when the respondent turned 18 years
old. The District Director therefore cancelled the respondent’s Certificate
of Citizenship after concluding that it had been obtained by fraud. On
March 29, 2004, the Administrative Appeals Office (“AAO”) dismissed the
respondent’s appeal from the District Director’s decision. 2

1
   The respondent was convicted on February 14, 2003, in the United States District Court
for the District of Minnesota, of the Federal offenses alleged in the notice to appear, which
support the Immigration Judge’s determination regarding the respondent’s removability.
2
   Prior to the creation of the Department of Homeland Security, appeals from the
cancellation of certificates of citizenship were within the jurisdiction of the Associate
Commissioner for Examinations in the INS. 

(f)(3)(iii)(Q) (2002). The
Secretary of Homeland Security now possesses this delegated authority, which has since
been reserved. 

(a) (2011); Immigration Benefits Business Transformation,
Increment I, 

, 53,780 (Aug. 29, 2011). By regulation, the AAO has
exclusive jurisdiction to consider an appeal of a decision to cancel a Certificate of
Citizenship. See 

(a)(1)(ii), (iv), 342.8 (2016). Neither the Immigration


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    On appeal from the Immigration Judge’s decision, the respondent argues
that the cancellation of his Certificate of Citizenship did not affect his claim
to United States citizenship status and that he was denied due process
because the Immigration Judge did not defer to a Federal court regarding his
citizenship claim. In support of this argument, he relies on the language of
section 342 of the Act, 

 (2012), and Gorbach v. Reno,

 (9th Cir. 2000) (en banc), which enjoined administrative
proceedings to revoke naturalization. 3
    The respondent claims he derived United States citizenship under former
section 321(a) of the Act as the minor child of a custodial adoptive parent
when that person became a naturalized United States citizen in 1995. The
respondent’s application for a certificate of citizenship was approved, but
only in recognition of that derivative status. However, when the adoptive
relationship underlying his derivative United States citizenship claim was
found to be fraudulent, the respondent could no longer contend that he had
a valid claim to United States citizenship on that basis. The District Director
cancelled the improvidently issued Certificate of Citizenship pursuant to his
statutory authority under section 342 of the Act. See 8 C.F.R. part 342
(outlining the process for cancelling a Certificate of Citizenship illegally or
fraudulently obtained under the Act).
    Both before the Immigration Judge and on appeal, the respondent appears
to conflate the grant of United States citizenship through the naturalization
process, which results in the issuance of a Certificate of Naturalization
(Form N-550), with the approval of an Application for Certificate of
Citizenship (Form N-600), which acknowledges that sufficient evidence has
been presented to support an applicant’s claim to have derived United States
citizenship. However, these are distinct applications in their purpose and
effect, as we explain below.
    A person seeking United States citizenship through naturalization may
file an Application for Naturalization (Form N-400) if he or she is 18 years
old or older and meets certain requirements, including continuous residence
and physical presence, good moral character, and legal status. See 

 (2016); see also 8 C.F.R. parts 334–335 (2016). If the naturalization
application is approved and the applicant takes an oath of allegiance, a
Certificate of Naturalization will be issued to document the grant of United
States citizenship. See 8 C.F.R. parts 337–338 (2016).

Judges nor the Board have jurisdiction to consider the respondent’s challenge to the AAO
decision. See 

(b).
3
    Section 342 of the Act provides statutory authority for the cancellation of certificates of
citizenship. The portion of the statute on which the respondent relies states that the
cancellation of a certificate of citizenship “shall affect only the document and not the
citizenship status of the person in whose name the document was issued.”

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    The respondent does not claim United States citizenship through
naturalization. Instead, he was issued his Certificate of Citizenship under
section 341 of the Act, 

 (1996), based on his claim of
derivative citizenship through the naturalization of his brother, who the
respondent fraudulently claimed was his adoptive father. A certificate of
citizenship only provides documentation of United States citizenship for
persons who claim to have obtained that status derivatively. See 

, 341.2(c) (2016). It does not confer United States citizenship but
only furnishes recognition and evidence that the applicant has previously
obtained such status derivatively, that is, upon the naturalization of a parent
or parents. See Section 341(a) of the Act. Thus, the issuance of a certificate
of citizenship, like a United States passport, only serves as indicia of
citizenship. It is not a grant of United States citizenship.
    Because the respondent’s United States citizenship claim was based on
fraud, his Certificate of Citizenship is void. Once it was discovered that the
respondent’s Certificate of Citizenship had been issued in error, the District
Director had an affirmative duty to institute administrative proceedings to
cancel it. See Friend v. Reno, 

, 647–48 (9th Cir. 1999); 

 (2016) (“If it shall appear to a district director that a person has
illegally or fraudulently obtained or caused to be created a certificate . . .
described in section 342 of the Act, a notice shall be served upon the person
of intention to cancel the certificate . . . .”).
    The District Director had statutory authority to cancel a certificate of
citizenship that was illegally or fraudulently obtained under section 342 of
the Act, so his decision to cancel the respondent’s Certificate of Citizenship
is not ultra vires. In this regard, the respondent’s reliance on the language of
section 342, which provides that the cancellation of a certificate of
citizenship shall not affect “the citizenship status of the person in whose
name the document was issued,” is inconsequential because he was never
entitled to citizenship status. Cf. Matter of Koloamatangi, 

 (BIA 2003) (holding that an alien who receives lawful permanent
resident status by fraud “is deemed, ab initio, never to have obtained [such]
status once his original ineligibility . . . is determined in proceedings”).
    Administrative proceedings to cancel a certificate of citizenship under
section 342 of the Act, which provides statutory authority to cancel a
certificate of citizenship that was illegally or fraudulently obtained, are
different from denaturalization proceedings under section 340 of the Act.
The main difference between cancellation and revocation proceedings is that
cancellation only affects the document, not the person’s underlying
citizenship status.
    A Certificate of Naturalization cannot be cancelled if it was issued to a
person who lawfully filed an Application for Naturalization and proceeded

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through the entire naturalization process to the oath of allegiance. In cases
where the person obtained citizenship though the naturalization process, his
or her citizenship status must first be revoked before the Certificate of
Naturalization can be cancelled. See section 340 of the Act, 

(2012). Unlike other immigration proceedings that the United States
Citizenship and Immigration Services handles in an administrative setting,
revocation of naturalization, often referred to as “denaturalization,” can only
occur in Federal court. See Gorbach, 219 F.3d at 1093–94, 1099. A person’s
naturalization can be revoked either by a civil proceeding filed in Federal
court pursuant to section 340(a) of the Act or by a criminal conviction under

 (2012), which results in the automatic revocation of
naturalization under section 340(e) of the Act.
    However, the provisions relating to the revocation of naturalization under
section 340, including the cancellation of the Certificate of Naturalization
under section 340(f), do not apply to persons, like the respondent, who have
obtained citizenship status derivatively and whose Certificate of Citizenship
was cancelled under section 342 of the Act. It is for this reason that the
respondent’s reliance on Gorbach, where the court enjoined administrative
denaturalizations under section 340 of the Act, is misplaced.
    The respondent has not shown that proceedings must be instituted to
revoke citizenship under the particular circumstances of this case. We
therefore find no support for his appellate argument that the Immigration
Judge was required to defer to a Federal court for a decision on his claim to
United States citizenship.
    Because the respondent was born outside of the United States, he is
presumptively an alien, and he has the burden to establish that he is a United
States citizen for purposes of these removal proceedings. See, e.g., Matter
of Rodriguez-Tejedor, 23 I&N Dec. at 164. In order for the respondent to
derive citizenship under former section 321(a) of the Act, his biological or
adoptive father must himself have acquired United States citizenship. Since
the respondent did not submit sufficient evidence that he has met this
requirement, he cannot establish his claim to citizenship. As noted by the
Immigration Judge, the respondent did not avail himself of the opportunity
to present any additional testimony or other evidence in support of his claim
to United States citizenship, relying instead on the evidence already in the
record.
    The respondent has not challenged the Immigration Judge’s findings
regarding his removability or requested any form of relief or protection from
removal. We will therefore affirm the Immigration Judge’s decision.
Accordingly, the respondent’s appeal will be dismissed.
    ORDER: The appeal is dismissed.


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