When A Petitioner Seeking To Prove A Family Relationship Files A Birth Certificate That Was Not Registered Contemporaneously With The Birth In Question, USCIS Must Consider The Certificate And All Evidence Of Record Including The Circumstances Of The Case, To Determine Whether The Claimed Relationship Has Been Proven By A Preponderance Of The Evidence.

On September 20, 2017, the Board of Immigration Appeals (BIA or Board), ruled on the appeal of a denied Form I-130, Petition for Alien Relative in a situation where the Service Center Director held that the Beneficiary’s Pakistani birth certificate, registered 2 years after his birth, did not sufficiently prove his parentage and thus could not establish he was the Petitioner’s brother. The Director found that Petitioner had not submitted sufficient secondary evidence to support the delayed registered birth certificate.

Initially, in analyzing the application of the preponderance of the evidence standard, the BIA quoted Matter of E-M-, 20 I&N Dec. 77 (Comm. 1989) for the long-held administrative commandment that “when something is to be established by a preponderance of the evidence it is sufficient that the proof only establish that it is probably true.” Thus, in discussing the necessary primary evidence to be filed to prove a family relationship in visa petition proceedings, the Board noted that – in the instant case – such evidence includes birth certificates showing a common parent, citing to 8 C.F.R § 204.2(g)(2)(i).

Historically, noted the opinion, the BIA has been reluctant to accord delayed birth certificates the same weight as those issued at the time of birth on the theory that delayed certificates are less reliable, i.e., that there is a greater opportunity for fraud. Moreover, the Board has previously held that delayed certificates are generally not conclusive evidence and must be evaluated in light of the other evidence of record and “the circumstances of the case”, stating that it has consistently considered the entire record to determine whether there is sufficient evidence of the claimed relationship. Here, the BIA concluded that, in evaluating whether a birth certificate is “delayed” and thus raises fraud concerns, USCIS must consider all record evidence and the circumstances of the case to determine whether sufficient reliable, persuasive evidence has been filed.

Next, in discussing other acceptable evidence, the Board again cited the regulations (8 C.F.R § 103.2(b)(2)) for the proposition that when an adjudicator determines a birth certificate is “not sufficiently reliable to meet the preponderance of the evidence standard” in light of all the circumstances, he or she should require and consider secondary evidence. Such evidence must be evaluated for authenticity and credibility and a Request for Evidence (RFE), providing detailed guidance regarding acceptable secondary forms of evidence, should be issued if it is not initially submitted. Most persuasive is secondary evidence that was created contemporaneously with the birth.

In the instant case, concluded the opinion, the Petitioner filed the I-130 fifty-two years after the Beneficiary’s birth was registered; unlike situations where the birth is registered right before the petition is filed, here the risk of fraud is greatly reduced. Additionally, noted the BIA, the Director had not considered the U.S. Department of State Foreign Affairs Manual (FAM) comments concerning Pakistani birth certificates: The FAM states that certificates for those born before 1947 are often unavailable and even today are not uniformly kept, particularly in rural areas. As such, the case was remanded to the Director to apply the Board’s framework; if USCIS determines that the birth certificate alone is not sufficiently reliable, it must consider whether, in combination with the secondary evidence submitted, it is sufficient to meet the preponderance of the evidence standard. Matter of Rehman, 27 I&N Dec. 124 (BIA 2017).

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