26 I. & N. Dec. 731
BIA2016Background
- Petitioner filed an I-130 to classify beneficiary as his full sister; USCIS Director denied the petition and petitioner appealed to the BIA.
- Petitioner submitted delayed Eritrean birth certificates, an undated family photo, and affidavits; USCIS found these insufficient and issued Requests for Evidence.
- Petitioner then submitted sibling-to-sibling DNA test results from an AABB‑accredited lab showing 99.8114% probability of a full‑sibling relationship. The lab report was sent directly to USCIS.
- The Director afforded no weight to the DNA results and denied the petition; USCIS policy memorandum stated it may not afford any evidentiary weight to sibling‑to‑sibling DNA tests and prefers parent‑child testing.
- BIA solicited supplemental briefing, considered scientific submissions from amicus and a forensic expert, and evaluated whether sibling‑to‑sibling DNA results of a specified probability are probative.
Issues
| Issue | Petitioner’s Argument | DHS’s Argument | Held |
|---|---|---|---|
| Whether direct sibling‑to‑sibling DNA test results may be excluded from consideration | Ruzku: DNA results showing high probability are probative and should be considered; 99.5%+ reflects scientific consensus | DHS: Direct sibling testing is not sufficiently reliable; USCIS policy may give such results no weight | The BIA: USCIS may not categorically ignore sibling tests; results of 99.5%+ from AABB‑accredited labs are probative and must be considered |
| What probability threshold (if any) renders sibling DNA probative | Ruzku/Amicus: Adopt 99.5%+ as a probative threshold; lower results still relevant with other evidence | DHS: No universally accepted threshold; risk of false negatives justifies caution | The BIA: 99.5% or greater should be accepted as probative evidence, but no automatic sufficiency; consider totality of evidence |
| Whether DNA alone must establish sibling status | Ruzku: High‑probability DNA is strong evidence; may be sufficient with other supporting proof | DHS: Prefer parent‑child testing where possible; sibling-alone less reliable | The BIA: DNA alone at a given probability is not always dispositive; other evidence is expected and weight depends on certainty |
| Application on remand | Ruzku: Director should consider submitted DNA and other evidence and may allow additional proof | DHS: Director may rely on policy and require parent‑child tests | The BIA: Remanded for Director to consider all evidence including the 99.8114% sibling test and decide whether petitioner met preponderance standard |
Key Cases Cited
- Christensen v. Harris County, 529 U.S. 576 (2000) (agency policy memoranda are not binding precedent but may have persuasive effect)