Matter of REHMAN, 27 I&N Dec. 124 (BIA 2017)
Where a petitioner seeking to prove a familial relationship submits a > birth certificate that was not registered contemporaneously with the birth, > an adjudicator must consider the birth certificate, as well as all the > other evidence of record and the circumstances of the case, to determine > whether the petitioner has submitted sufficient reliable evidence to > demonstrate the claimed relationship by a preponderance of the evidence. >
Cite as 27 I&N Dec. 124 (BIA 2017) Interim Decision #3903
124
Matter of Saif Ur REHMAN, Beneficiary of a visa petition filed
by Younas Mohammad Chaudry, Petitioner
Decided September 20, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Where a petitioner seeking to prove a familial relationship submits a birth certificate that
was not registered contemporaneously with the birth, an adjudicator must consider the birth
certificate, as well as all the other evidence of record and the circumstances of the case, to
determine whether the petitioner has submitted sufficient reliable evidence to demonstrate
the claimed relationship by a preponderance of the evidence.
FOR PETITIONER: Eric H. Singer, Esquire, Bethesda, Maryland
FOR THE DEPARTMENT OF HOMELAND SECURITY: Michael Ammerman,
Associate Counsel
BEFORE: Board Panel: ADKINS-BLANCH, Vice Chairman; MANN and KELLY,
Board Members.
MANN, Board Member:
In a decision dated March 24, 2015, the Service Center Director
(“Director”) denied the Petition for Alien Relative (Form I-130) that the
United States petitioner filed on behalf of the beneficiary to accord him status
as his brother under section 203(a)(4) of the Immigration and Nationality
Act, 8 U.S.C. § 1153(a)(4) (2012). The petitioner has appealed from that
decision. The record will be remanded.
I. FACTUAL AND PROCEDURAL HISTORY
In support of his visa petition, the petitioner submitted a birth certificate
that was registered in 1958, indicating that the beneficiary was born in
Pakistan in 1956. The Director denied the visa petition, concluding that
the petitioner did not submit sufficient evidence to meet his burden of
establishing that the beneficiary qualifies as his brother for immigration
purposes. Specifically, the Director found that the beneficiary’s Pakistani
birth certificate did not prove his parentage because it was registered 2 years
after his birth, and the petitioner did not submit sufficient secondary evidence
to support the delayed registered birth certificate.
Cite as 27 I&N Dec. 124 (BIA 2017) Interim Decision #3903
125
II. ANALYSIS
In this case, we will address the factors to be considered when assessing
whether a petitioner has established a familial relationship by a
preponderance of the evidence where a birth certificate submitted to prove
the relationship reflects that it was not registered contemporaneously with
the birth. We review all questions arising in visa petition proceedings de
novo. See 8 C.F.R. § 1003.1(d)(3)(iii) (2017).
A. Preponderance of the Evidence
In visa petition proceedings, the petitioner bears the burden of
establishing the claimed relationship by a preponderance of the evidence.
See, e.g., Matter of Ruzku, 26 I&N Dec. 731, 731 (BIA 2016). We have
defined a “preponderance of the evidence” as “evidence which as a whole
shows that the fact sought to be proved is more probable than not.” Matter
of Lemhammad, 20 I&N Dec. 316, 320 n.5 (BIA 1991) (quoting Black’s Law
Dictionary 1064 (5th ed. 1979)). Whether evidence is sufficient to meet the
preponderance of the evidence standard
will often turn upon the factual circumstances of each case. There are no magic
words or mathematical formulas that can describe a preponderance of the evidence
so it can be applied mechanically in every case. Nonetheless, when we consider that
the purpose of evidence is to ascertain the truth, then we can make certain
generalizations. For example, when something has to be proved beyond a reasonable
doubt, the proof must demonstrate that something must be almost certainly true. And
when something has to be proved by clear and convincing evidence, the proof must
demonstrate that it is highly probably true. But, 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.
. . . [T]he application of the “preponderance of the evidence” standard may require
the examination of each piece of relevant evidence and a determination as to whether
such evidence, either by itself or when viewed within the totality of the evidence,
establishes that something to be proved is probably true.
Matter of E-M-, 20 I&N Dec. 77, 79–80 (Comm. 1989) (citation omitted).
B. Primary Evidence
To establish a claimed family relationship in visa petition proceedings by
a preponderance of the evidence, a petitioner should submit primary
evidence, if it is available. 8 C.F.R. §§ 103.2(b), 204.1(f)(1) (2017). For
siblings, that primary evidence includes birth certificates showing a common
parent. 8 C.F.R. § 204.2(g)(2)(i) (2017). To determine whether primary
Cite as 27 I&N Dec. 124 (BIA 2017) Interim Decision #3903
126
evidence is unavailable, adjudicators may refer to the Department of State
Foreign Affairs Manual (“FAM”) Reciprocity Schedule and may consider
any other evidence in the record regarding the availability of such evidence.
In assessing whether a petitioner has met his or her burden of proof in
cases where a birth certificate is submitted to establish a family relationship,
“we have been reluctant to accord delayed birth certificates the same weight
we would give birth certificates issued at the time of birth.” Matter of Bueno,
21 I&N Dec. 1029, 1032 (BIA 1997) (citing Matter of Ma, 20 I&N Dec. 394
(BIA 1991)). We reasoned that birth certificates with delayed registration
dates are less reliable because “the opportunity for fraud is much greater with
a delayed birth certificate.” Matter of Serna, 16 I&N Dec. 643, 645 (BIA
1978). However, we have noted the difficulty in balancing situations in
which a delayed birth certificate may be the only type of birth certificate
available. Id. at 644–45 (“To penalize these persons because they were not
born in hospitals or other facilities where births are registered would be
unjust.”). To balance the competing concerns of fraud and fairness, we have
held that a delayed birth certificate is not generally conclusive evidence and
must instead “be evaluated in light of the other evidence of record and the
circumstances of the case.” Matter of Bueno, 21 I&N Dec. at 1033.
Although we have never specified that a birth certificate must reflect
registration within a specific period of time after the birth in order to be valid
evidence of parentage, we have seen a pattern in decisions where the Director
has determined that birth certificates registered 1 year or more after the birth
are considered delayed. Such a bright-line standard has no basis in the
regulations or our precedent.
Instead, we have consistently considered the record as a whole to
determine whether there is sufficient evidence of the relationship. In Matter
of Bueno, the beneficiary’s birth was registered in the Dominican Republic
7 years after he was born and only 9 months prior to the filing of the visa
petition. We concluded that these circumstances raised questions regarding
the beneficiary’s paternity, particularly given that the FAM did not reflect
whether independent verification of paternity was necessary in the
Dominican Republic to obtain a birth certificate after the birth date. Id.
(citing Vol. 9, Foreign Affairs Manual, Part IV, Appendix C, “Dominican
Republic”). We held that additional proof was needed to establish paternity
in that case and that the sole additional relevant document—an affidavit—
was insufficient to establish the relationship by a preponderance of the
evidence.
Similarly, in Matter of Ma, 20 I&N Dec. at 397, we evaluated the
reliability of a Chinese notarial certificate that was issued 40 years after the
beneficiary’s birth. We determined that although such certificates were
generally reliable, the delay in the registration of the birth raised a concern
Cite as 27 I&N Dec. 124 (BIA 2017) Interim Decision #3903
127
about fraud, so the case should be considered in light of “any and all
supporting evidence that the petitioner may be able to produce.” Id.
Having reviewed the regulations, our precedent decisions, and the
arguments of the parties, we conclude that in evaluating whether a birth
certificate is “delayed” and therefore raises concerns about fraud, an
adjudicator must consider all the other evidence of record and the
circumstances of the case to determine whether a petitioner has submitted
sufficient reliable evidence to demonstrate the claimed familial relationship
by a preponderance of the evidence. See Matter of Bueno, 21 I&N Dec.
at 1033. The adjudicator should always examine the evidence for its
reliability and persuasiveness, given the circumstances presented.
Even if a birth certificate does not reflect that its registration was
contemporaneous with the birth, an adjudicator may conclude that it is
sufficiently reliable to establish parentage, depending on the circumstances.
In making this determination, the adjudicator should consider all relevant
factors, including, but not limited to, (1) information in the FAM regarding
the availability and reliability of birth registrations in the country of birth
during the time period at issue; (2) the length of time between the birth and
the registration; (3) any credible explanation proffered by the petitioner as to
the personal, societal, or historical circumstances that prevented a particular
birth certificate from being registered contemporaneously, and any evidence
in support of that explanation; (4) any credible explanation for why a
particular birth certificate was lost or destroyed; (5) any evidence that the
parental relationship was independently corroborated prior to the registration
of the birth; (6) the length of time between the birth registration and the filing
of the visa petition; and (7) information regarding whether the document was
based on facts that were contemporaneous with the birth or on facts that were
more recently established.
C. Secondary Evidence
If the adjudicator determines that a birth certificate is not sufficiently
reliable to meet the preponderance of the evidence standard in light of all of
the circumstances, he or she should require and consider secondary evidence
to determine whether the petitioner has established parentage. See 8 C.F.R.
§ 103.2(b)(2); see also Matter of Pagan, 22 I&N Dec. 547, 550 (BIA 1999).
The regulations do not specify the secondary evidence to be considered
in sibling petition cases like the one before us. However, we find instructive
the regulation that lists the types of secondary evidence petitioners may
submit to establish their United States citizenship or lawful permanent
resident status. 8 C.F.R. § 204.1(g)(2) (providing that secondary evidence
may include, but is not limited to, baptismal certificates, affidavits sworn by
Cite as 27 I&N Dec. 124 (BIA 2017) Interim Decision #3903
128
persons with personal knowledge of the event to which they attest, early
school records, and census records). Similarly, we consider relevant the
secondary evidence listed in the regulations pertaining to petitions filed on
behalf of sons and daughters, because in sibling petition cases, it is the
siblings’ relationship through the parent that must be established. See, e.g.,
8 C.F.R. § 204.2(d)(2)(v), (vi) (providing that secondary evidence may
include historical evidence issued contemporaneously with the birth or other
event that it documents, such as medical records, school records, religious
documents, affidavits by those with personal knowledge of the event, and
DNA evidence). All secondary evidence should be evaluated for its
authenticity and credibility. 8 C.F.R. § 204.1(g)(2).
Thus, the types of secondary evidence that a petitioner may submit to
establish his or her relationship with a sibling beneficiary include, but are not
limited to, (1) governmental, medical, religious, school, financial,
employment, insurance, or residential records that reflect the names of
the parent(s) and child; (2) family photographs with notations indicating
the persons photographed, as well as the date and place they were taken;
(3) correspondence, preferably with the original envelope, showing the date
written and referring to the parent(s) and child; (4) affidavits by persons who
have personal knowledge of the birth; and (5) the results of DNA testing
conducted in a prescribed manner, as explained to the petitioner by the
United States Citizenship and Immigration Services (“USCIS”). Given the
advances in DNA testing in recent years, the USCIS should encourage
petitioners to pursue this option, particularly if little other secondary
evidence is available. A Request for Evidence should provide detailed
guidance with regard to secondary forms of evidence.
Although we agree with the petitioner that all secondary evidence
should be considered, we also agree with counsel for the USCIS that
secondary evidence that was created contemporaneous with the birth will be
the most persuasive. As with all visa petitions, an adjudicator’s decision
should explain his or her reasoning in evaluating the reliability and
persuasiveness of all the evidence in the record and state whether it is
sufficient to meet the preponderance of the evidence standard.
D. Application to the Beneficiary
In this case, the beneficiary’s birth was registered in 1958, when he was
2 years old. Unlike in Matter of Bueno, where the birth was registered just
months before the visa petition was filed, the petitioner filed the visa
petition 52 years after the beneficiary’s birth was registered. Under these
circumstances, the risk of fraud is greatly reduced.
Cite as 27 I&N Dec. 124 (BIA 2017) Interim Decision #3903
129
In addition, the Director did not indicate that she considered the FAM,
which states the following in regard to birth records in Pakistan:
Birth certificates for older Pakistanis, particularly those born before partition in
1947, are often unavailable. These Pakistanis may present a “No Entry Certificate”
issued by the Municipal Corporation or a late-registered birth certificate. . . .
Even today, birth records are not uniformly kept, particularly in rural areas. . . .
. . . .
In lieu of a birth certificate, Pakistanis often use school records attested by the
headmaster or principal of the school or matriculation certificates, both of which
identify the father and the date of birth. “B” Forms, which are family registration
forms listing all family members, are also available [to show’ family relationships.
These documents are issued by [the National Database and Registration Authority
(“NADRA”)], though pre-NADRA versions are sometimes available as well.
U.S. Dep’t of State, Pakistan Country Reciprocity Schedule, https://travel.
state.gov/content/visas/en/fees/reciprocity-by-country/PK.html (follow the
hyperlink to “Birth, Death, Burial Certificates”). The FAM indicates that
birth certificates for those Pakistanis of the beneficiary’s generation—
namely, those born shortly after the 1947 partition of India—may often be
unavailable. The Director should weigh this fact when considering the
persuasiveness of the beneficiary’s birth certificate, which was registered in
1958.
III. CONCLUSION
We will remand this case for the Director to apply the framework set forth
above and determine whether the beneficiary’s birth certificate is sufficient
to establish his parentage by a preponderance of the evidence. If the Director
determines that the birth certificate alone is not sufficiently reliable, the
Director should consider whether the birth certificate, in combination with
the secondary evidence submitted by the petitioner, is sufficient to meet his
burden of proof. As with all decisions, the Director must discuss the facts
and weigh the evidence in light of the applicable legal standards and
determine whether the burden of proof has been met. Accordingly, the record
will be remanded for further proceedings.
ORDER: The record is remanded for further proceedings consistent
with the foregoing opinion and for the entry of a new decision.