C ite as 2 7 I&N Dec. 124 (BIA 201 7 ) Interim Decision # 3 903

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 A ppeals

Where a petitioner seek ing 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

, E squire, 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 s ection 203(a)( 4) of the Immigration and Nationality
Act, 8 U.S.C. § 1153(a)(4) (2012)

. The p etitioner has appealed from that

decision. The record will be remanded.



### I. FACTUAL AND PROCEDURAL HISTORY

In support of his visa petition, t he petitioner submitted a birth certificate

that was registered in 1958, indicating that the beneficiary wa s born in

Pakistan in 1956. The Director denied the visa petition

, concluding that

the petitioner di d not submit sufficient evidence to meet his burden of

establish ing 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

.C ite as 2 7 I&N Dec. 124 (BIA 201 7 ) Interim Decision # 3 903

125 

### I I. 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

Diction ary 1064 (5th ed. 1979))

. W hether 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 reasona ble 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,

establis hes 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 primaryC ite as 2 7 I&N Dec. 124 (BIA 201 7 ) Interim Decision # 3 903

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 assess ing 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 certif icates 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, w e have noted the difficulty in balancing situations in which a delayed birth certificate may be the only type of bir th 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 d elayed birth certificate is not gener a lly 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 w e 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

. S uch 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 Matt er 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 th e se circumstances raised questions regarding the beneficiary’s paterni ty, 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 h e l d 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 concernC ite as 2 7 I&N Dec. 124 (BIA 201 7 ) Interim Decision # 3 903

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 decision s, and the

argum ents 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 p etitioner 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 al ways examine the evidence for its reliability and persuasiveness , given the circumstances presented

. E ven if a birth certificate does not reflect that its registration was contemporaneous with the birth

, an adjudicator may conclude that i t is

sufficient ly reliable to establish parentage, d epending 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 regi strations 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 preven ted 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 sufficient ly 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.
§ 1 0 3

. 2 ( b )(2) ; see al so Matter of Pagan , 22 I&N Dec. 5 4 7

, 550 (BIA 19 99 ). 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 byC ite as 2 7 I&N Dec. 124 (BIA 201 7 ) Interim Decision # 3 903

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 petiti ons 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 historica l 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 b e evaluated for its authenticity and credibility. 8 C.F.R. § 204.1(g)(2).

Th us , the types of secondary evidence that a petitioner may submit to establish his or her relationship with a sibling beneficiary in clude, 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 indicat ing

the persons photographed

, as well as the date and place they were ta ken; (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 prescr ibed manner, as explained to the petitioner by the

U nited S tates C itizenship and I mmigration S ervices (“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 th e 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. U nlike in Matter of Bueno , where the birth was registered just

months before the visa petition was filed

, the petitioner fil ed the visa petition 52 years after the beneficiary’s birth was registered. Under th e s e circumstances , the risk of fraud is greatly reduced.C ite as 2 7 I&N Dec. 124 (BIA 201 7 ) Interim Decision # 3 903

129 In addition, the Director did not indicate that she considered the FAM,

which states the following in regard to birth records in Pakistan :

B irth 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 w hich 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”)

. Th e FAM indicate s 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. Th e Director should weigh this fact when consider ing 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 sufficient ly 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 evide nce 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

.