On March 29, 2016, the Board of Immigration Appeals (BIA or Board) ruled on the evidentiary value of direct sibling-to-sibling DNA test results (as opposed to parent-child results for each claimed sibling). The California Service Center (CSC) had denied a Form I-130 visa petition filed on behalf of the petitioner’s claimed sister, affording no weight to the direct sibling-to-sibling DNA test results which showed a 99.8% probability the two are siblings, determining that the brother had not established the claimed relationship.
Shortly after the Board requested supplementary briefing, the USCIS issued a policy memorandum on the subject stating that it would not afford any evidentiary weight to sibling-to-sibling DNA test results and would only consider parent-child results for each claimed sibling. The USCIS brief on appeal cited the memorandum, stating that sibling-to-sibling testing is unreliable but cited no published sources for this claim. The memo also noted a need for continuing research to ensure that valid sibling relationships are not excluded by the current threshold percentages set by the scientific community.
The petitioner’s and AILA’s amicus briefs urged the BIA to accord probative value to sibling-to-sibling DNA tests where the results reflect a probability of 99.5% or higher, adding that even lower levels of certainty should be considered in conjunction with other supporting evidence.
The Board’s opinion found that USCIS’s policy of barring consideration of any sibling-to-sibling DNA test results appeared “based on a concern that some results may reflect a lower level of probability than 99.5 percent, even where there is a true biological sibling relationship – in other words that there is a risk of “false negative’ test results…” The BIA acknowledged this concern but stated it did not justify such an “overly broad position”. Contrasting the issue to the evidentiary weight given to birth certificates issued at or near the time of birth (accepted as highly probative of the parent-child relationship) versus that given to certificates that reflect delayed issuance (given less evidentiary weight because of the potential for fraud), the Board noted that USCIS does not decline to consider timely-issued birth certificates because some petitioners file fraudulent documents. The BIA thus held that it is not logical for the CSC to have declined to afford any weight to direct sibling-to-sibling DNA test results, concluding that when an accredited facility has determined from direct sibling-to-sibling testing that a 99.5% or greater probability of the full sibling relationship exists, the DNA results should be accepted and considered as probative evidence of the relationship. Specifically refraining from holding that sibling-to-sibling DNA tests reflecting any particular probability percentage will be sufficient to establish a full sibling relationship, the BIA stated its expectation that such results will generally be accompanied by other evidence of the claimed relationship and remanded the record to the CSC. Matter of Ruzko, 26 I&N Dec. 731 (BIA 2016).
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