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DNA Tests May Be Considered for Sibling Petitions

The Board of Immigration Appeals ("BIA") issued an important precedential decision last month regarding sibling DNA test results. The decision is Matter of RUZKU, 26 I & N Dec. 731 (BIA 2016). The holding basically establishes that direct sibling DNA test results that indicate a 99.5 percent probability that the parties are related as siblings should be taken into consideration by USCIS and accorded proper weight. In the case at hand, USCIS declined, in accordance with its official policy, to give any evidential weight to a DNA test result submitted by the petitioner in support of his I-130 application for his sibling, even though the results indicated a 99.8114 percent probability that the parties were full biological siblings. The government memorandum which USCIS relied upon to support its decision states that USCIS may not afford any weight to sibling-to-sibling DNA test results and will only evaluate parent-child DNA results, which presumably are more reliable.

The BIA took a more sensible approach and held that even if sibling tests were more prone to "false negative" results, it did not justify a blanket, "overly broad position" by USCIS to not even take the results into consideration. Before one get's too excited, there are a few qualifications to this decision:

  • Only DNA test results from AABB-accredited facilities that establish a 99.5 or higher probability that the parties are full biological siblings should be considered; in other words, if the results come in at less than 99.5 percent, they would likely not be accepted.
  • The test results alone do not establish the claimed relationship. The test results should be evaluated under a totality of circumstances, and it is expected that other evidence (ie., birth certificates, delayed birth certificates, hospital records, affidavits, etc.) of the claimed relationship would be submitted in support of the I-130.

This case should be of special interest to our Indian clients, who we find run into this issue more often than from other countries due to the lack of record keeping and local practices of many provincial villages that did not customarily record birthdates. In many cases, a timely registered birth certificate may not be available. Ordinarily, the petitioner would have to scramble to find secondary evidence such as no birth registration letters, affidavits, blood-relation affidavits, etc., which sometimes is still not enough. At least now, with this decision, the applicant may bolster the case by seriously consider having DNA tests conducted and submitted as evidence that a sibling relationship exists.

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PROFESSIONAL RECOGNITION

    • The National Advocates | Top 100 Lawyers
    • Rated by Super Lawyers | Angie Garasia | 5 Years
    • Avvo Rating 10.0 | Superb
    • Client Distinction Award martindale.com | 2016 Martindale-Hubbell Client Distinction Award
    • New Jersey State Bar Association | Paris Lee Chair - Immigration Section 2015-2016
    • Nationaly Recognized | Newsweek Nationwide Showcase | Top Attorneys 2013
    • New Jersey Chapter | American Immigration Lawyers Association | Angie Garasia | Chapter Chair 2015-2016
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Lee & Garasia, LLC
190 State Route 27
Edison, NJ 08820

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