BIA rules on consideration of sibling-to-sibling DNA test results
The Board of Immigration Appeals had welcome news about DNA test results for families that had been unable to establish sibling relationships through other types of evidence alone.
In a March 29 ruling, the BIA said direct sibling-to-sibling DNA test results may be considered by U.S. Citizenship and Immigration Services as evidence of the necessary family relationship in support of a fourth-preference petition. The BIA also weighed in on the evidentiary value of such test results
In the case, Matter of Ruzku, 26 I&N Dec. 731 (BIA 2016), the BIA found that direct sibling-to-sibling DNA test results from an accredited facility, that reflect a 99.5 percent or greater probability that the sibling relationship exists, should be accepted and considered probative evidence of the relationship. The decision was welcome news to U.S. citizen petitioners and their siblings who were unable to establish the claimed relationship through birth certificates or other secondary evidence.
In support of his I-130 relative petition, Abdalla Ibrahim Ruzku, the U.S. citizen petitioner, submitted delayed birth certificates for himself and his brother, Nejat Ibrahim Ruzku. The birth certificates showed that both the two were born in Eritrea to the same mother and father, but the documents were issued more than 25 years after their births. Also submitted was an undated family photo and an affidavit from relatives about the relationship. After the USCIS sent two Requests for Evidence advising Ruzku that the evidence was insufficient to establish the relationship, he arranged for sibling-to-sibling DNA testing with an American Association of Blood Banks-accredited facility. The test results said the probability of the petitioner and the beneficiary being full siblings was 99.8114 percent and concluded that "it is very probable" that they are full siblings.
The California Service Center denied the relative petition, finding the petitioner didn't establish the requisite sibling relationship. In reaching this decision, the California Service Center gave no evidentiary weight to the DNA test results and declined to give persuasive weight to the other evidence presented.
While the appeal in this case was pending, the USCIS issued a policy memorandum on sibling-to-sibling DNA test results titled "DNA Evidence of Sibling Relationships for Service Centers, Domestic and International Field Offices," USCIS, DHS, PM-602-0106 (Oct. 17, 2014). The memo provided background on the evidence needed to establish a sibling relationship and explained USCIS's long-standing policy of accepting parent-child DNA to establish parentage when a 99.5 percent statistical probability is found. The memo set out the policy that USCIS may not afford any evidentiary weight to sibling-to-sibling DNA test results and officers may not suggest or consider sibling-to-sibling DNA testing for fourth preference relative petitions. USCIS based the policy on the belief that it could not determine if sibling-to-sibling DNA test results were sufficiently reliable since the DNA testing industry had not established probability standards that provide a level of certainty at least equivalent with DNA parentage testing.
The USCIS cited the Oct. 17, 2014, memo in its supplemental brief in the Ruzku case, arguing that sibling-to-sibling DNA testing is not sufficiently reliable to establish the sibling relationship. In its decision, the BIA noted that the USCIS had consulted a number of scientific resources to learn there is no commonly accepted standard for relationship probability in sibling-to-sibling DNA testing. However, the USCIS failed to cite to any published sources, the BIA said. The petitioner argued that DNA test results with a 99.5 percent certainty should be considered probative evidence. An amicus brief filed in support of this position included information that referenced published scientific studies.
The BIA acknowledged USCIS's concern that some testing results may reflect a lower level of probability than 99.5 percent, even where a true biological relationship exists. These results could lead to denial of some visa petitions. However, the board found that concern doesn't justify the overly broad USCIS policy to discount sibling-to-sibling DNA test results, even when there is a high level of certainly that the relationship exists. In reaching its decision, the board was persuaded by the petitioner's arguments and the scientific information presented.
The board concluded that when a facility accredited by the American Association of Blood Banks has determined, from direct sibling-to-sibling DNA testing of full siblings, that a 99.5 percent or greater probability of the sibling relationship exists, the test results should be accepted and considered to be probative evidence of the claimed relationship. The board went on to explain that it was not holding that sibling-to-sibling DNA test results reflecting any particular percentage probability will alone be sufficient to establish a claimed full sibling relationship. It expects that other evidence would also be submitted and considered in its totality. Finally, the board found that the weight to be given any particular DNA test results will depend on the degree of certainty reflected in those results.
Since the Adjudicator's Filed Manual (AFM) Chapter 21.9 still reflects USICS' policy not to consider sibling-to-sibling DNA test results, it is advisable for petitioners to include a copy of Matter of Ruzku if undergoing DNA testing to support a claim of a sibling relationship. The BIA decision can be found at https://www.justice.gov/eoir/virtual-law-library.