Recent orphan petition decisions updated

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  • 1. Recent Orphan Petition DecisionsPetition to Classify Orphan as an Immediate Relative Pursuant to section l0l(b)(l)(F) of theImmigration and Nationality Act, 8 U.S.C. § ll0l(b)(l)(F) [I-600 and I-600A]Application for Advance Processing of Orphan Petition Pursuant to 8 C.F.R. § 204.3(c)8 CFR § 204.3 Orphan cases under section 101(b)(1)(F) of the Act (non-Convention cases).Petition to Classify Convention Adoptee as an Immediate Relative Pursuant to Section10l(b)(l)(G) of the Immigration and Nationality Act, 8 U.S.C. §ll0l(b)(l)(G) [I-800 or I-800A]8 CFR PART 204--IMMIGRANT PETITIONSSubpart C--INTERCOUNTRY ADOPTION OF A CONVENTION ADOPTEE§ 204.300 - §204.314These cases are filed on www.uscis.gov Administrative Decisions in categories F1 and F2.Presented here are F1 cases filed under 2010. Included is one misfiled case that belongs in the F2category. Following these are the very few Advance Application Decisions (F2 category).Jan032011_01F1101.pdf Appeal Dismissed [Newark, NJ]“The petitioner seeks classification of an orphan as an immediate relative pursuant to section10 1 (b)(l)(F)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. §1101(b)(l)(F)(i).The director denied the petition on the basis of her determination that the petitioner had failed toestablish that the beneficiary qualifies for classification as an orphan as that term is defined atsection l0l(b)(l)(F)(i) of the Act. Specifically, the director found the record absent of evidencethat the beneficiary has a sole or surviving parent who is incapable of providing proper care tothe beneficiary, consistent with local standards in Pakistan.”The child is NOT an orphan. The birthmother is deceased, having died less than a week afterchildbirth. The birthfather is alive and remarried and has described himself as a “professional”implying employment and probably a sufficient income. The birthfather is remarried so there isalso a stepmother in the picture. In addition, the birthfather has given some sort of informalcustody to his own father (the child’s paternal grandfather). There was no mention of thematernal relatives or a paternal grandmother. The “adoption deed” submitted is not compliantwith Pakistani law of guardianship which is supposed to go through a family court. Thebirthfather has given a letter to informally surrender the child specifically to the I-600 petitioner.
  • 2. The petitioner is a forty-seven-year-old citizen of the United States. His wife is a thirty-eight-year old 1awfi.d permanent resident of the United States. The beneficiary was born in Pakistanon June 9, 2005.The petitioner is a USC married to an LPR. It is not stated if petitioner is a naturalized or bornUSC. It is not stated where the LPR spouse is from.This case has the earmarks of a bogus family adoption. Although it is not stated in thedecision, it may be the case that the petitioner and/or his wife is a blood relative attempting toadopt a niece or nephew.Feb032010_01F1101.pdf Appeal Dismissed [Houston, TX]AAO 10 043 50019“The petitioner seeks classification of an orphan as an immediate relative pursuant to section10l(b)(l)(F)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § ll0l(b)(l)(F)(i). Thefield office director denied the petition on the basis of her determination that: (1) the petitionerhad failed to establish that the beneficiary qualifies for classification as an orphan as that term isdefined at section l0l(b)(l)(F)(i) of the Act; and (2) the petitioner had failed to establish that thebirth father has irrevocably released the child for emigration and adoption, in writing.”The child is NOT an orphan. “....8 C.F.R. § 204.3(b) states that "relinquishment or release by theparents to the prospective adoptive parents or for a specific adoption does not constituteabandonment." Here, the birth father has relinquished the beneficiary to a specific person - thepetitioner (and his wife).” She still lives with her biological father but is is reported that themother is not in the child’s life.“....AAO finds that the petitioner has failed to establish that the beneficiary meets the definitionof an orphan under any of the seven definitions discussed above: (1) the death or disappearanceof both parents; (2) abandonment by both of her parents; (3) desertion by both of her parents; (4)separation from both of her parents; (5) the loss of both of her parents; (6) the incapability of hersole parent, who has in writing irrevocably released the child for emigration and adoption, toprovide her with proper care; or (7) the incapability of her surviving parent, who has in writingirrevocably released the child for emigration and adoption, to provide her with proper care.Accordingly, the petitioner has failed to establish that the beneficiary meets the definition of an"orphan," as that term is defined at section l0l(b)(l)(F)(i) of the Act, 8 U.S.C. § ll0l(b)(l)(F)(i),and the field office director properly denied this petition. Accordingly, the AAO will not disturbthe field office directors denial of the petition.”The petitioner is a fifty-two-old citizen of the United States. The beneficiary was born inEthiopia on November 12, 1993. The beneficiary is the biological niece of the petitioner.This case is classic example of a bogus family adoption. It is specifically stated in the decision,that the petitioner is a blood relative attempting to adopt a niece.
  • 3. Feb042010_01F1101.pdf Appeal Dismissed [Fresno, CA]“The petitioner seeks classification of an orphan as an immediate relative pursuant to section10l(b)(l)(F)(i) of the Immigration and Nationality Act ("the Act"), 8 U.S.C. § 1l0l(b)(l)(F)(i).The field office director denied the petition on the basis of his determination that because thepetitioner had submitted evidence and testimony lacking in credibility, the petitioner had failedto establish that the beneficiary qualifies for classification as an orphan, as the term is defined atsection l0l(b)(l)(F)(i) of the Act, 8 U.S.C. § ll0l(b)(l)(F)(i). Specifically, the field office directorraised questions regarding: (1) the veracity of the testimony of the petitioner during his 2001naturalization interview; (2) the petitioners submission of three different birth certificates for thebeneficiary, and the differences among those birth certificates; (3) the testimony of record withregard to the placement of the beneficiary with the petitioners wife; (4) a conflict between thebirth certificates and the certificate of foundling; (5) the circumstances surrounding the DNAtesting of the petitioner, his wife, and the beneficiary; and (6) the home study conducted inconnection with the couples adoption of the beneficiary in the Philippines. On appeal, newly-retained counsel submits a brief and supporting documentation.”“The petitioner is a fifty-five-old citizen of the United States. The beneficiary was allegedly bornin the Philippines on February 6, 1993. According to the home study submitted with the Form 1-600, the beneficiary began living with the petitioners wife in the Philippines shortly after shewas born.”“Beyond those concerns enumerated by the field office director, the AAO notes further that theNovember 8, 2005 order issued by the Regional Trial Court, Fourth Judicial Region, Branch 79,states that, on November 18, 2004, the petitioners wife testified that the elderly woman whogave her the beneficiary requested "P500.00."The regulation at 8 C.F.R. § 204.3(i) states the following: Child-buying as a ground for denial. An orphan petition must be denied under this section if the prospective adoptive parents or adoptive parent(s), or a person or entity working on their behalf, have given or will give money or other consideration either directly or indirectly to the childs parent(s), agent(s), other individual(s), or entity as payment for the child or as an inducement to release the child. . . .The November 18, 2004 testimony of the petitioners wife raises questions with regard towhether the petitioner is subject to the child-buying prohibition described at 8 C.F.R. § 204.3(i).Even if the petitioner could overcome the grounds of the field office directors decision, the issueof whether he and his wife in fact bought the beneficiary must be further explored, and resolved,in accordance with 8 C.F.R. § 204.3(i), before this petition may be approved.”Feb252010_01F1101.pdf Appeal Rejected as Untimely [Hartford, CT]MSC 10 009 65335“DISCUSSION: The field office director initially approved the Form 1-600, Petition to Classify
  • 4. Orphan as an Immediate Relative. However, upon receipt of correspondence from the UnitedStates Consulate in Guangzhou, China, the field office director issued a notice of intent torevoke, and ultimately revoked, approval of the petition. The matter is now before theAdministrative Appeals Office (AAO) on appeal. The appeal will be rejected as untimely filed.The regulation requires that an appeal from the revocation of the approval of a petition must befiled within 15 days after service of the notice of revocation. 8 C.F.R. § 205.2(d). If the noticewas mailed, the appeal must be filed within 18 days. See 8 C.F.R. § 103.5a(b).”Mar042010_01F1101.pdf Appeal Dismissed [Philadelphia, PA]PHI 09 010 00145“The petitioner seeks classification of an orphan as an immediate relative pursuant to section10l(b)(l)(F)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1l0l(b)(l)(F)(i). Thefield office director denied the petition on the basis of her determination that the petitioner hadfailed to establish that the beneficiary qualifies for classification as an orphan as that term isdefined at section lol(b)(l)(F)(i) of the Act, 8 U.S.C. § ll0l(b)(l)(F)(i).”“The petitioner is a forty-one-year-old citizen of the United States. The beneficiary was born inMalaysia on March 24, 2007. The record indicates that the petitioner and her husband adoptedthe beneficiary in Malaysia on September 28, 2007.”“.... In particular, the field office director noted that the beneficiarys birthparents relinquishedthe beneficiary to the petitioner and her husband directly. ...”“.... AAO finds that the petitioner has failed to establish that the beneficiary meets the definitionof an orphan under any of the five definitions discussed above: (1) the death or disappearance ofboth parents; (2) abandonment by both parents; (3) desertion by both parents; (4) separation fromboth parents; and (5) the loss of both parents. ...”AAO did not discuss whether it could have been a bogus family adoption, a case of childbuying, or use of an unauthorized adoption agent or agency. It could easily have been any ofthem or just a poorly planned private adoption.Mar042010_02F1101.pdf Appeal [Guatemala City, Guatemala]AAO 10 043 50005“DISCUSSION: The field office director denied the Form 1-600, Petition to Classify Orphan asan Immediate Relative. The Administrative Appeals Office (AAO) dismissed a subsequentappeal and, in response to two subsequent motions to reopen or reconsider, affirmed its decisionto deny the petition. The matter is again before the AAO on motion to reopen or reconsider. Themotion will be granted. The previous decisions of the field office director and the AAO will beaffirmed. The petition will be denied.
  • 5. The petitioner seeks classification of an orphan as an immediate relative pursuant to section10l(b)(l)(F)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § ll0l(b)(l)(F)(i). Thefield office director denied the petition on July 22, 2008. The AAO dismissed the petitionersappeal on February 5, 2009. The AAO affirmed that decision, in response to subsequent motionsto reopen or reconsider, on May 11, 2009 and October 19, 2009. As the facts and proceduralhistory of this case were adequately documented in its February 5, 2009 decision, the AAO willonly repeat certain facts as necessary here.”The record was full of contradictions and inconsistencies AND the birth mother may havebeen coerced. This decision contains a very interesting footnote regarding e-mail messagesand the gross mischaracterizations made by counsel about them.Mar052010_01F1101.pdf Appeal Dismissed [Houston, TX] 1 of 3“The petitioner seeks classification of an orphan as an immediate relative pursuant to section10l(b)(l)(F)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § ll0(b)(l)(F)(i). Thefield office director denied the petition on the basis of her determination that (1) the petitionerhad failed to submit an original adoption decree, as specifically requested by the field officedirector; and (2) that the petitioner had failed to establish that the petitioners adoption of thebeneficiary in Nigeria was in accordance with the laws of Nigeria. Accordingly, the petitionerhad failed to establish that the beneficiary qualifies for classification as an orphan as that term isdefined at section l0l(b)(l)(F)(i) of the Act, 8 U.S.C. § ll0l(b)(l)(F)(i).”“.... Beyond the decision of the director, the AAO finds further that the petitioner has furtherfailed to establish that the beneficiarys surviving parent is incapable of providing proper care tothe beneficiary consistent with local standards in Nigeria. ....”Decision explains Nigerian adoption process as described by the Department of State website.AAO did not say or imply but I have to wonder if the 81 year old petitioner was the biologicalgrandparent or great-grandparent of the teenage beneficiary. Why else would petitioner’sdaughter be submitting an affidavit in this case?Mar052010_02F1101.pdf Appeal Dismissed [Houston, TX] 2 of 3It seems to be a second Nigerian grandkid. Same As above case except for DOB of beneficiary (ayounger sibling).Evidence includes a letter from the "royal highness of our town"!
  • 6. Mar052010_03F1101.pdf Appeal Dismissed [Houston, TX] 3 of 3It seems to be a second Nigerian grandkid. Same as above case with the same DOB ofbeneficiary (a twin sibling?).Three strikes and gramps is out of luck!Mar152010_01F1101.pdf Appeal Dismissed [National Benefits Center]SIM 09 226 10016“The petitioner seeks classification of an adoptee as an immediate relative pursuant to section10l(b)(l)(G) of the Immigration and Nationality Act ("the Act"), 8 U.S.C. § 1l0l(b)(l)(G). Thedirector denied the petition on the basis of his determination that, because the petitioner hadfailed to establish that the beneficiarys birthparents are incapable of providing proper care, thepetitioner had failed to establish that the beneficiary is eligible for classification as an immediaterelative under the Act.”“The petitioner, a citizen of the United States, filed Form I-800A, Application for Determinationof Suitability to Adopt a Child from a Convention Country, on March 11, 2009. The Form I-800A was approved on April 14, 2009. The record indicates that the beneficiary was born inIndia on August 19, 2007, and that she currently lives with her birth parents. The record indicatesfurther that the beneficiarys birthfather is the brother of the petitioners husband.”Stereotypical bogus family adoption. Surprise, it their niece!Apr192010_01F1101.pdf Case Remanded to be treated as a Motion to Reconsider [NY, NY]“DISCUSSION: The district director initially approved the Form 1-600, Petition to ClassifyOrphan as an Immediate Relative. However, upon receipt of correspondence from the UnitedStates Consulate in Bridgetown, Barbados, the director issued a notice of intent to revoke, andultimately revoked, approval of the petition. The matter is now before the AdministrativeAppeals Office (AAO) on appeal. The appeal will be rejected as untimely filed. The AAO willreturn the matter to the director for consideration as a motion to reconsider.”“... Counsel and the petitioner appear to concede that the beneficiary does not qualify as anorphan under the first half of this definition. However, neither the correspondence from theconsulate nor the decision of the director contained any analysis of whether the beneficiaryqualifies as an orphan under the second half of this definition: whether he has a sole orsurviving parent who is incapable of providing proper care, and who has in writing irrevocablyreleased the child for emigration and adoption, and counsel notes this failure to address thesecond half of the definition of an "orphan." Counsels submission, therefore, qualifies as amotion to reconsider. [Emphasis added.]
  • 7. Here, the untimely appeal appears to meet the requirements of a motion to reconsider. Theofficial having jurisdiction over a motion is the official who made the last decision in theproceeding, in this case the director. See 8 C.F.R. § 103.5(a)(l)(ii). Therefore, the director mustconsider the untimely appeal as a motion to reconsider and render a new decision accordingly.”Apr192010_02F1101.pdf Case Remanded [Newark, NJ]The decision below was insufficient. The case is similar to the one above having been returnedby the same Consulate for the same inadequate reason and was also improperly handled byUSCIS.“The field office directors October 7, 2009 decision is withdrawn. The petition is remanded tothe field office director for continued processing and eventual entry of a new decision, which, ifadverse to the petitioner, is to be certified to the AAO for review.”Apr192010_03F1101.pdf Case Remanded [Boise, ID]ALL of the Director’s concerns were overcome and the whole denial was withdrawn. It isexpected to have been approved.ORDER: The field office directors November 18, 2009 decision is withdrawn. The petition is remanded to the field office director for continued processing and eventual entry of a new decision, which, if adverse to the petitioner, is to be certified to the AAO for review.Apr192010_04F1101.pdf Appeal Dismissed [San Antonio, TX]“The petitioner seeks classification of an orphan as an immediate relative pursuant to section101(b)(l)(F)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(b)(l)(F)(i). Thefield office director revoked approval of the petition on the basis of her determination that thepetitioner had failed to establish that the beneficiarys surviving parent is incapable of providingproper care to the beneficiary, consistent with local standards in Lebanon. Accordingly, thepetitioner had failed to establish that the beneficiary qualifies for classification as an orphan asthat term is defined at section l0l(b)(l)(F)(i) of the Act, 8 U.S.C. § 101l(b)(l)(F)(i).”“The sole issue before the AAO on appeal is whether the petitioner has established that thebeneficiarys birth mother, his surviving parent, is incapable of providing proper care to thebeneficiary, consistent with local standards in Lebanon, pursuant to 8 C.F.R. § 204.3(b).”“... [T]he 1-604 investigation revealed derogatory information. In his July 8, 2008NOIR, the field office director stated that the investigation had indicated, in relevant part, thefollowing:
  • 8.  The beneficiary lives with his birth mother in a two-story, 280-square meter home built by the birth father prior to his death, and that the birth mother is able to provide for the beneficiarys basic needs, consistent with local standards;  The birth mother inherited $31,000 as a pension settlement after the death of the birth father, and that the beneficiary and his brother each inherited $26,000;  The beneficiary inherited a 100-square meter property described as an apartment after the death of the birth father;  The birth mother inherited 12,000 meters of land adjacent to the home after the death of the birth father;  The birth mother receives supplemental income from her adult children;  The beneficiary and his brother both attend private school; and  The birth mother has been providing for the basic needs of the beneficiary and his brother, and there is no evidence to suggest that she would not continue doing so.“..... The AAO agrees that, if substantiated, this would be a significant drop in income. However,there is no evidence of record beyond self-serving testimony to substantiate this claim. ....”* The beneficiarys brother is also the beneficiary of a Form 1-600 filed by the petitioner and herhusband.ORDER: The appeal is dismissed. The petition is denied.Apr192010_05F1101.pdf SAME RESULT AS ABOVE.* This beneficiary is the brother of the above beneficiary.Jun032010_01F1101.pdf Appeal Dismissed [Providence, RI]“The petitioner seeks classification of an orphan as an immediate relative pursuant to section101(b)(l)(F)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(b)(l)(F)(i). Thedirector denied the petition on the basis of her determination that the petitioner had failed toestablish that the beneficiary qualifies for classification as an orphan as that term is defined atsection 101(b)(l)(F)(i) of the Act. Specifically, the field office director found that because thepetitioners adoption of the beneficiary was the result of a direct relinquishment or release, andthat the beneficiary had been relinquished or released to a third party for custodial care inanticipation of, or preparation for, adoption, and the third party was not authorized to act in sucha capacity under the child welfare laws of the foreign-sending country, the petitioner had failedto establish that the beneficiary had been "abandoned" by both birth parents as that term isdefined in the regulation.”“... [T]he record indicates clearly that: (1) the birthparents intended to transfer "all parentalrights, obligations, and claims to the child, as well as all control over and possession of thechild," to the petitioner and her husband; and (2) placement of the beneficiary with the
  • 9. petitioners mother-in-law was in fact "in anticipation of, or preparation for, adoption," and therecord fails to establish that the petitioners mother-in-law is authorized under the child welfarelaws of Cape Verde to act in such a capacity.”Petitioners cannot use unauthorized intermediaries [especially relatives] rather than legallyauthorized orphanages and/or foster homes.Jun182010_01F1101.pdf Appeal Dismissed [Atlanta, GA]“The petitioner seeks classification of an orphan as an immediate relative pursuant to section101(b)(l)(F)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1l0l(b)(l)(F)(i). Thefield office director denied the petition on the basis of her determination that the petitioner hadfailed to establish that the beneficiary qualifies for classification as an orphan as defined atsection 101 (b)(l)(F)(i) of the Act. Specifically, the field office director found that the petitionerhad failed to establish that the beneficiary had been "abandoned" by both parents.”“The petitioner is a twenty-seven-year-old citizen of the United States. The beneficiary, who isthe petitioners biological nephew, was born in Nigeria on July 29, 1996, and the recordindicates that the petitioner adopted him in Nigeria on April 9, 2008. The field office directorapproved the Form I-600A, Application for Advance Processing of Orphan Petition, on behalf ofthe petitioner and his wife on September 10, 2009.The petitioner filed the instant Form 1-600 on April 17, 2009. The field office director issued asubsequent request for additional evidence, to which the petitioner filed a timely response. In herSeptember 25, 2009 decision denying the petition, the field office director, as noted previously,found the evidence of record insufficient to establish that the beneficiary had been abandoned byboth birthparents and met the definition of an "orphan," as defined at section 101 (b)(l)(F)(i) ofthe Act.”Yet another bogus family adoption.Jun242010_02F1101.pdf Appeal Dismissed [Newark, NJ]“The petitioner seeks classification of an orphan as an immediate relative pursuant to section101(b)(l )(F)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(b)(l)(F)(i).The field office director denied the petition on the basis of her determination that the petitionerhad failed to establish that the beneficiary qualifies for classification as an orphan as defined atsection 101(b)(l)(F)(i) of the Act. Specifically, the field office director found that because thepetitioners adoption of the beneficiary was the result of a direct relinquishment or release,the petitioner had failed to establish that the beneficiary had been "abandoned" by bothbirthparents as that term is defined in the regulation.”Unauthorized intermediary (petitioner’s mother) for a direct adoption. Were the birthparentsrelative, friends, or neighbors????
  • 10. Jul012010_01F1101.pdf Case Remanded to be treated as a Motion. [Los Angeles, CA]“The field office director revoked approval of the petition on October 9, 2009. It is noted that thefield office director improperly gave notice to the petitioner that an appeal could be filed within30 days of the revocation decision. However, the field office directors improper notice to thepetitioner regarding the time period during which an appeal may be filed does not extend theregulatory requirement that the appeal of a revocation decision issued by mail must be filedwithin 18 days. U.S. Citizenship and Immigration Services (USCIS) received the petitionersForm I-290B, Notice of Appeal, on November 12, 2009, 34 days after the field office directorsdecision was issued. Accordingly, the appeal was untimely filed.”Jul152010_01F1101.pdf Appeal Dismissed [Providence, RI]“.... Specifically, the field office director found that because the petitioners adoption of thebeneficiary was the result of a direct relinquishment or release, the petitioner had failed toestablish that the beneficiary had been "abandoned" by both parents as defined in the regulation.”“The record contains statements from both the birthmother and birthfather consenting to theadoption. In their statements, both birthparents stated that although the beneficiary had beenliving with the petitioners mother-in-law since she had been two months old, they had remainedin contact with the beneficiary since the placement.”Direct adoption through unauthorized intermediary (petitioner’s mother-in-law).Jul162010_03F1101.pdf Appeal Dismissed [Dallas, TX]Petitioner failed to comply with the foreign adoption laws. ALL THREE children that petitionerseeks to adopt are currently residing with the birthmother.Jul162010_04F1101.pdf Appeal Dismissed [Dallas, TX]“The petitioner seeks classification of an orphan as an immediate relative pursuant to section101(b)(l)(F)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(b)(l)(F)(i). Thedirector denied the petition on the basis of his determination that the petitioner had failed toestablish that the petitioners adoption of the beneficiary in Nigeria took place in accordance withthe laws of Nigeria. Accordingly, the petitioner the petitioner had failed to establish that thebeneficiary qualifies for classification as an orphan as defined at section 101(b)(l)(F)(i) of theAct, 8 U.S.C. § 1101(b)(l)(F)(i).”Same situation as above case.
  • 11. Jul292010_01F1101.pdf Case Remanded to be treated as a Motion. [San Diego, CA]Jul292010_02F1101.pdf Case Remanded to be treated as a Motion. [San Diego, CA]Jul292010_03F1101.pdf Case Remanded to be treated as a Motion. [San Diego, CA]Jul292010_04F1101.pdf Case Remanded to be treated as a Motion. [San Diego, CA]Aug102010_01F1101.pdf Appeal Dismissed [Baltimore, MD]“The petitioner seeks classification of an orphan as an immediate relative pursuant to section101(b)(l)(F)(i) of the Immigration and Nationality Act (the Act), § U.S.C. § 1101(b)(l)(F)(i). Thedistrict director denied the petition on the basis of his determination that the petitioner had failedto establish that the beneficiary qualifies for classification as an orphan as defined at section101(b)(l)(F)(i) of the Act. Specifically, the district director found the record absent of evidencethat the beneficiary has a sole parent who is incapable of providing proper care to thebeneficiary, consistent with local standards in Guyana.”“...[T]he 1-604 investigation revealed derogatory information regarding the birthmothers allegedinability to provide proper care consistent with local standards. Such derogatoryinformation included, in relevant part, the following:  The beneficiarys birthmother appeared to the investigators to be young, healthy, and articulate.  The beneficiarys birthmother lived with her two sisters, two of her three children, and her sisters children.  The beneficiarys birthmother received financial support from her mother.  The investigators took note of the birthmothers active interest in, and care for, her youngest child. She told the investigators that she intended to register him for preschool and get a job.  The birthmothers neighbors told the investigators that the birthmother often visits the beneficiary at the private school she attends, and that she is well cared for - more so than most children in the neighborhood.
  • 12. The petitioner, through counsel, filed a supplemental submission to the district director afterthe U.S. Embassy returned the file to the district director, but before the district director issuedthe NOIR. In that submission, counsel submitted several documents pertaining to thebirthmothers alleged incapability of providing proper care to the beneficiary, including thefollowing:  An August 7, 2009 letter from [redacted] who stated that she had been caring for the beneficiary since May 2008, and that the petitioner had been providing for all of her financial support since that time.  A July 22, 2008 letter from [redacted] who stated that she saw the beneficiary in April 2006, and that she was undernourished, anemic, irritable, and withdrawn, and had a poor appetite, recurrent colds, and skin rashes. [Redacted] stated that the birthmother was not employed, received no support from the birthfather, and was dependent upon her mother and sisters for financial support.  A December 19, 2008 letter from [redacted] the birthmothers mother and beneficiarys biological grandmother. [Redacted] stated that although the birthmother initially went to live with the birthfather in Suriname, she returned home shortly thereafter. According to [redacted], the birthmother is unemployed and has no means of financial support. She also reported that the birthmother verbally and physically abused her children. [Redacted] reported that although she allowed the birthmother to live with her and her other daughters in her home, and that they shared everything they had with her, once the birthmother was given money she "found friends and nightclubs." [Redacted] stated that although the petitioner, who is her sister, has been supporting the beneficiary financially for over two years, the birthmother initially used the money to buy clothing and attend parties.  A December 8, 2008 letter from [redacted] and [redacted] the birthmothers sisters and beneficiarys biological aunts. They stated that the birthmother has been consistently unemployed since 2006, with no means of support. They reported that the petitioner has been providing financial support for the beneficiary for over two years, but that the birthmother initially used the money to buy clothing for herself and attend parties while she left her children alone. They stated that because the birthmother stayed out so late, she was too tired to take her children to school. They also reported that the birthmother abused the beneficiary physically and verbally, which caused-the beneficiary to become anxious, fearful, worried, and introverted. Because the beneficiary did not yet have a visa with which to enter the United States, the petitioner eventually placed her in the care of [redacted].  A November 19, 2008 letter from [redacted] Head Teacher of the beneficiarys school. [Redacted] stated that when the beneficiary was living with the birthmother, she was small and underweight, was withdrawn, always had a sad look on her face, and her school attendance was irregular. However, after she was placed into the custody of [redacted] the beneficiary began to show improvement.
  • 13. The district director relayed the specific concerns of the U.S. Embassy that arose during thecourse of the 1-604 investigation to the petitioner in his January 19, 2010 NOIR, and stated thatbeneficiarys birthmother had not demonstrated her incapability of providing the beneficiarysbasic needs, consistent with local standards in Guyana.Counsel submitted a timely response to the NOIR. In her February 17, 2010 letter, counsel statedthat although relatively healthy and articulate, the birthmother was, and is, incapable of raisingthe beneficiary. Counsel submitted additional testimonial evidence regarding the birthmothersalleged incapability of providing proper care to the beneficiary, including the following:  A February 16, 2010 statement from the birthmother, who stated that she decided to place the beneficiary for adoption with the petitioner because it was too difficult to care for both the beneficiary and her younger son (her older son was already being raised by her sister).  Another letter from [redacted] the birthmothers sister and biological aunt of the beneficiary, dated February 9, 2010. [Redacted] stated that the birthmother is "barely capable of caring for herself, let alone caring for 2 young children on her own." According to [redacted], the birthmother does not participate in any way in the care or support of her two older children: the petitioner and [redacted] are raising the beneficiary, and [redacted] is raising her older son. She stated that although the birthmother is raising her younger son, other individuals contribute substantially to his care and support. [Redacted] state d that although the birthmother has had several advantages in life, including several years of private schooling, she has never supported herself financially or acted like a responsible adult. For example, although several family members paid the enrollment fees for a vocational cosmetology program, the birthmother eventually stopped attending classes and used the money to buy nonessential items and go to parties. On other occasions, she used money given to her for those of supporting the beneficiary to buy alcohol, clothing, and attend parties. [Redacted] reported that the birthmother abused the beneficiary verbally and physically and that even when others paid for the cost of daycare for the beneficiary, the birthmother "could not be bothered" to get out of bed to feed her and take her to daycare. She stated that the birthmother has never held a job for a sustained period of time.  Another letter from [redacted] the birthmothers mother and [petitioner’s] biological grandmother, dated February 15, 2010. She stated that the birthmother has no role in the beneficiarys life, and neglected her when she did. [Redacted] stated that the birthmother has not held a steady job and that when she sends her money, the birthmother generally uses it to go out with friends to clubs and concerts.The district director found counsels response insufficient and revoked approval of the petition onMarch 15, 2010. In his revocation, the district director stated that although it appears as thoughthe birthmother is not currently employed the record lacks evidence that she is unable orincapable of holding employment. Accordingly, the beneficiary does not meet the definition ofan orphan as a result of a sole parent incapable of providing proper care to the beneficiaryconsistent with local standards.”
  • 14. ORDER: The appeal is dismissed. Approval of the petition is revoked.Liar, Liar, Pants-on-fire! There should have been a finding of material misrepresentation!Aug162010_01F1101.pdf Appeal Dismissed. [National Benefits Center]“The petitioner seeks classification of a Convention adoptee as an immediate relative pursuant tosection 1 0 1 (b)(l )(G) of the Immigration and Nationality Act ("the Act"), 8 U.S.C. § 1101(b)(l)(G). The director denied the petition on the basis of his determination that the petitionersimproper filing of the petition precluded the beneficiarys classification as an immediate relativeunder the Act.”“On March 15,2010, the director denied the Form 1-800 on two grounds. The director found firstthat 8 C.F.R. § 204.313(c)(2) mandated denial of the petition because the central authorityauthorized placement of the beneficiary after his sixteenth birthday. Second, the director foundthat since the Form I-800A was filed after the beneficiarys fifteenth birthday, but before hissixteenth birthday, and the petitioner did not file the Form 1-800 within 180 days of the Form I-800As approval, the regulation at 8 C.F.R. § 204.3 13(c)(3) also mandated denial of thepetition.”“The AAO agrees with the directors analysis. As the central authority authorized placement ofthe beneficiary after his sixteenth birthday, the regulation at 8 C.F.R. § 204.3 13(c)(2) mandatesdenial of the petition. Moreover, because the Form I-800A was filed after the beneficiarysfifteenth birthday, and the Form I-800 was not filed within 180 days of the Form I-800Asapproval, the regulation at 8 C.F.R. § 204.3 13(c)(3) also mandates denial of the petition. Thepetitioner has failed to overcome the grounds for denial of the petition. The beneficiary,therefore, is ineligible for classification as an immediate relative pursuant to section 101(b)(l)(G) of the Act and the petition must remain denied.”The devil is in the details. Denied on technicalities.Aug252010_01F1101.pdf Case Remanded. [New York, NY]The district directors decision will be withdrawn and the matter remanded for further processing.There was inadequate legal analysis under the “sole parent” and “incapable of providing propercare” standards and regulations.
  • 15. F2 Decisions:Feb162010_01F2101.pdf Appeal Dismissed. [Dallas, TX]“The field office director denied the applicants request to extend approval of his previously-approved Form I-600A on the basis of the applicants failure to file such request during the timeperiod during which he was eligible to do so. On appeal, the applicant indicates that such failureto file the extension request in a timely manner was not intentional, and requests that theapplication be approved.”A purely procedural denial. Since the request was too late, a new fee was required, that’s all. Anew form, fee, and Home Study will be required. This makes sense in order to ensure proper carecan be provided to the orphan.Feb252010_01F2101.pdf Denial Affirmed on Certification. [Oklahoma City and Dallas, TX]DISCUSSION: The district director, Dallas, Texas, denied the Form I-600A, Application forAdvance Processing of Orphan Petition, on February 20, 2004. The applicant appealed thedirectors decision, and the Administrative Appeals Office (AAO) withdrew such decision onJanuary 21, 2005. The AAO remanded the matter to the director for further action and the entryof a new decision which, if adverse to the applicant, was to be certified to the AAO for review.The applicant did not respond to the directors August 23, 2006 request for additional evidence,and the field office director, Oklahoma City, denied the petition, again, on January 2, 2009.Although the director forwarded the file to the AAO, he did not provide counsel and theapplicant with proper notice of the certification, as required by 8 C.F.R. § 103.4(a)(2). As such,the AAO again remanded the matter to the field office director for further action on March 31,2009. Specifically, the AAO instructed the director to enter a new decision which would placecounsel and the applicant on notice that he was certifying his decision to the AAO. The directorissued a newly-dated denial of the application on December 3, 2009, and certified his decision tothe AAO for review. The director provided proper notice of the certification to counsel and theapplicant.1 The contents of these decisions are part of the record of proceeding, and theircontents need not be repeated here.The applicant elected not to respond to the directors August 23, 2006 request for additionalevidence, and has chosen not to submit additional evidence to the AAO to rebut the findings ofthe directors notice of certification. Accordingly, the record is considered to be complete as itnow stands, and the applicant has failed to provide evidence of rehabilitation after his arrest fordomestic violence. Accordingly, the applicant has failed to overcome the ground for denial of theapplication. The directors decision to deny the application will therefore be affirmed.The burden of proof in these proceedings rests solely with the applicant. Section 291 of the Act,8 U.S.C. § 1361. The applicant has not sustained that burden.ORDER: The directors December 3, 2009 decision is affirmed. The petition is denied.
  • 16. [Footnote in original]___________1. The director notified the applicant, incorrectly, in his December 3, 2009 decision that he could file a motionto reopen, pursuant to 8 C.F.R. 5 103.5(a)(2), and set forth the criteria for filing such a motion. However, asthe director was certifying his decision to the AAO for review, the applicant had the right to submit a briefand/or additional evidence directly to the AAO, regardless of whether his submission satisfied thesubstantive criteria to qualify as a motion to reopen. Furthermore, as the director was certifying his decisionto the AAO for review, his decision was not final, and the filing of a motion by the applicant in response tothe decision would have been improper. The director, therefore, should not have included that discussion inhis decision. However, as the director properly notified the applicant in the notice of certification that he hadthe right to submit additional evidence to the AAO in response to the certification within 30 days, the AAOfinds the directors inclusion of the discussion relating to motions in his decision to have been a harmlesserror.Feb252010_02F2101.pdf Case Remanded (Probably subsequently approved.)SIM 09 258 10019 [National Benefits Center]DISCUSSION: The director denied the Form I-800A, Application for Determination ofSuitability to Adopt a Child from a Convention Country, and the matter is now before theAdministrative Appeals Office (AAO) on appeal. The directors decision will be withdrawn andthe matter remanded to the director for continued processing of the applicants [ ] I-800Aapplication.The director denied the application on the basis of his determination that the applicant had failedto comply with 8 C.F.R. § 204.311(c)(12). Specifically, the director found inadequate astatement submitted by the applicant regarding a 1985 incident during which she was arrested foroperating a motor vehicle without a license. On appeal, the applicant submits a supplementalstatement regarding the incident.******In the May 20, 2009 home study, the preparer disclosed that the applicant had been arrested in1985 for having driven a motor vehicle after the revocation of her drivers license. However, thepreparer did not submit a certified copy of the documentation showing the final disposition of theincident, as required by 8 C.F.R. § 204.311(~)(12). Nor did the applicant submit a writtenstatement, signed under penalty of perjury, providing the details of the arrest, along with anymitigating circumstances, as is also required by 8 C.F.R. § 204.311(~)(12). As such, the directorissued a request for additional evidence on July 22, 2009 and requested, among other items, theaforementioned evidence and information.The applicant responded to the directors request for additional evidence on August 12, 2009.Although the applicants submission of a certified copy of the court proceedings pertaining to the1985 arrest satisfied the first half of 8 C.F.R. § 204.311(c)(12), her undated letter, whichconsisted of two sentences, did not satisfy the second half of that regulation. The applicantsdiscussion of the incident consisted of a single sentence, and she did not provide any mitigatingcircumstances or explain why she failed to include such a discussion. Nor did she sign the letter
  • 17. under penalty of perjury. As the applicants letter was deficient, the director denied theapplication on August 24, 2009.The applicant submitted a timely appeal on September 16, 2009. On appeal, the applicantsubmits a September 14, 2009 letter, which she signed under penalty of perjury, and in which shediscusses the circumstances surrounding her arrest as well as the mitigating circumstances. Theapplicant, therefore, has now satisfied 8 C.F.R. § 204.311(c)(12).As indicated previously, the USCIS determination regarding whether or not to approve a Form I-800A is based upon protective concerns for the orphan. The regulation at 8 C.F.R. § 304.31l(d)(l)(ii) specifically states that a "person with a criminal history may be able to establishsufficient rehabilitation," and the AAO finds that the applicant has made such a demonstration.The applicants arrest for driving a motor vehicle with a revoked drivers license occurred nearly25 years ago, when she was twenty years of age. The record indicates that the applicant has nocriminal history prior to, or subsequent to, that incident. The home study reflects that theapplicant was approved by the preparer as a suitable parent. In addition, the home study reportreflects that the applicant has a stable home environment and holds a stable job. Although theAAO does not wish to discount the seriousness of driving a motor vehicle without a license, inthis particular case the evidence of record does not indicate that the petitioners 1985 arrest forthat crime reflects negatively upon her ability to parent a child in 2010.The AAO, therefore, finds that the applicant has satisfied both the technical requirements of 8C.F.R. § 204.311(c)(12) in that the record has now been supplemented with an adequatestatement from the applicant regarding her 1985 arrest, as well as the substantive requirements of8 C.F.R. § 304.311(d)(l)(ii) in that she has demonstrated sufficient rehabilitation.The directors decision, therefore, will be withdrawn.The burden of proof in these proceedings rests solely with the applicant. Section 291 of the Act,8 U.S.C. § 1361. The applicant has sustained that burden.ORDER: The directors decision is withdrawn. The matter is remanded to the director forfurther processing of the application to ensure that all other areas of eligibility have been met.Jun032010_01F2101.pdf Case Remanded. [Athens, Greece]DISCUSSION: The field office director denied the Form I-600A, Application for AdvanceProcessing of an Orphan Petition, and the matter is now before the Administrative AppealsOffice (AAO) on appeal. The field office directors decision will be withdrawn and the matterremanded for further processing and adjudication of any remaining issues to ensure that all othergrounds of eligibility are met.The field office director denied the applicants Form I-600A on the basis of her determinationthat the home study submitted by the applicant had failed to properly evaluate the applicantsfinancial situation. On appeal, the applicant submits additional information and testimony.
  • 18. *****ORDER: The field office directors January 13, 2010 decision is withdrawn. The matter is remanded for further processing and adjudication of any remaining issues to nsure that all other grounds of eligibility are met. The field office director shall then enter a new decision, which, if adverse to the applicant, is to be certified to the AAO for review.