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Orphan Petition AAO Non-Precedents Posted Since July 2011             By Joseph P. Whalen (April 19, 2012)(UPDATED June 8,...
To promote consistency with the regulations for Convention adoption cases,USCIS will deem the Form I-600A filing date to b...
The following links & excerpts are to decisions I ran across on June 8, 2012.May252011_01F1101.pdf          I-600 Dismisse...
revocation, and dismissed the motion. The petitioner timely appealed. The     AAO conducts appellate review on a de novo b...
Jul202011_01F1101.pdf         I-600 Remanded     “DISCUSSION: The Director, National Benefits Center, revoked approval    ...
while the child is under the age of 16. To promote consistency with the     regulations for Convention adoption cases, USC...
petition on the basis of his determination that the petitioner had failed toestablish that the beneficiary qualifies for c...
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Orphan petition AAO decisions list updated June 8, 2012

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Orphan petition AAO decisions list updated June 8, 2012

  1. 1. Orphan Petition AAO Non-Precedents Posted Since July 2011 By Joseph P. Whalen (April 19, 2012)(UPDATED June 8, 2012)USCIS Form I-600, Petition to Classify Orphan as an Immediate Relative Pursuantto section 101(b)(l)(F)(i) of the Immigration and Nationality Act, 8 U.S.C. §1101(b)(l)(F)(i)  Home >  Administrative Decisions >  F1 - Petitions for OrphansFeb082011_01F1101.pdf The appeal is rejected. The matter is returned to thefield office director for consideration as a motion and issuance of a new decision.Apr052011_01F1101.pdf The appeal will be sustained, the directors decision willbe withdrawn, and the matter remanded for further action. There is an agediscrepancy in the record, however, the directors determination that the petitionerwas over the age of 16 at the time the Form 1-600 was filed lacks support in therecord. Here, the petitioner has met the burden of proving that the beneficiary wasunder the age of 16 years at the time the petition was filed, as required undersection l0l(b)(l)(F)(i) of the Act.Apr052011_02F1101.pdf SUSTAINEDFor intercountry adoptions under the Convention on Protection of Children andCo-operation in Respect of Intercountry Adoption done at The Hague on May 29,1993 ("Convention"), the regulations provide, in pertinent part: If the Form I-800A was filed after the childs 15th birthday but before the childs 16th birthday, the filing date of the Form I-800A will be deemed to be the filing date of the Form 1-800, provided the Form 1-800 is filed not more than 180 days after the initial approval of the Form I-800A.8 C.F.R. § 204.313(c)(3). The regulations governing orphan petitions at 8 C.F.R. §204.3, do not directly address the relationship between the separate filing of aForm I-600A and the statutory requirement to file the "petition" while the child isunder the age of 16.
  2. 2. To promote consistency with the regulations for Convention adoption cases,USCIS will deem the Form I-600A filing date to be the Form I-600 filing date if:(1) the Form I-600A was filed after the childs fifteenth birthday but before thechilds sixteenth birthday; and (2) the Form 1-600 is filed not more than 180 daysafter the initial approval of the Form I-600A.Apr052011_03F1101.pdf The Field Office Director, Philadelphia, Pennsylvania,denied the Form 1-600, Petition to Classify Orphan as an Immediate Relative, andthe Administrative Appeals Office (AAO) dismissed a subsequent appeal. Thematter is again before the AAO on a motion to reconsider. The motion toreconsider will be granted and the appeal will remain dismissed.Apr182011_01F1101.pdf The director denied the Form I-800A, Application forDetermination of Suitability to Adopt a Child from a Convention Country, and thematter is now before the Administrative Appeals Office (AAO) on appeal. Theappeal will be dismissed. * * * * *The director denied the application because the applicants spouse failed todisclose her prior criminal history, and the applicant did not provide anaddendum to the home study addressing that criminal history. On appeal, theapplicant states that the failure to disclose was the result of an honest mistake, andhe requests the opportunity to file a corrected Form I-800A with a home studyaddendum. .... * * * * *Before denying a Form I-800A for failure to disclose criminal history, USCIS willissue a Notice of Intent to Deny (NOID) the application. 8 C.F.R. § 204.309(c). * * * * *Because the applicant has not shown by clear and convincing evidence that hiswife did disclose her criminal history, or that she is no longer a member of thehousehold, the Form I-800A must be denied pursuant to 8 C.F.R. § 204.309(a)(1).Further, the applicant is barred against filing a subsequent Form I -800A forone year after the date of this decision affirming the directors denial. 8 C.F.R.§ 204.307(c). Although the applicant requests an exemption from the one-year bar,the AAO lacks authority to contravene the express language of the applicableregulations. See, e.g., United States v. Nixon, 418 U.S. 683, 695-96 (1974)(holding that government officials are bound to adhere to the governing statute andregulations).
  3. 3. The following links & excerpts are to decisions I ran across on June 8, 2012.May252011_01F1101.pdf I-600 Dismissed “The director issued a request for additional evidence in support of the Form I-600. See Request for Evidence, dated Dec. 13, 2010. The petitioner failed to submit all of the requested evidence, and the petition was denied accordingly. See Notice of Decision, dated Jan. 3, 2011.” * * * * * “The record reflects that the petitioner and his wife are U.S. citizens. The beneficiary was born in Guyana on September 23, 2009, to unmarried parents. On October 29, 2010, the High Court of the Supreme Court of Judicature, in Georgetown, Guyana, granted the application of the petitioner and his wife to adopt the beneficiary. See Adoption Order, dated Oct. 29, 2010.”Jun082011_04F1101.pdf I-600 Dismissed “The director issued a request for additional evidence in support of the Form I-600. See Request for Evidence, dated Sept. 21, 2010. The petitioner failed to submit all of the requested evidence, and the petition was denied accordingly. See Notice of Decision, dated Jan. 3, 2011.” * * * * * The record reflects that the petitioner is a married U.S. citizen, residing in New York. See Marriage Confirmation. The petitioner is separated from his spouse, who resides in Yemen. See Form I-600; Marital History Affidavit, dated Jan. 29, 2009; Separation Agreement, dated Sept. 28, 2009. The beneficiary was born in Yemen on May 5, 2006, to [REDACTED] and [REDACTED] See Birth Certificate for [REDACTED]. The beneficiarys birth father died on January 7, 2007. See Death Certificate for [REDACTED].”Jun232011_02F1101.pdf I-600 Dismissed “The director revoked approval of the Form I-600, Petition to Classify Orphan as an Immediate Relative, based on a determination that the beneficiary did not meet the definition of an orphan. The director treated the petitioners untimely appeal as a motion to reopen and to reconsider the
  4. 4. revocation, and dismissed the motion. The petitioner timely appealed. The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004).” * * * * * “The record reflects that the petitioner is a divorced U.S. citizen residing in New Jersey. The beneficiary was born in Guyana on February 7, 1994, to [REDACTED]. The beneficiarys mother died on March 20, 2008. The petitioner filed the instant Form I-600 on April 16, 2008, when the beneficiary was 14 years old. U.S. Citizenship and Immigration Services approved the petition on November 6, 2008. On April 27, 2010, the director issued a Notice of Intent to Revoke (NOIR) the approval of the petition because a field investigation revealed that the beneficiarys father is not incapable of providing proper care for her. Specifically, the director found that the beneficiarys father resides near the beneficiary, has an ongoing parental relationship with her, and provides $300.00 per month in financial support. ....”Jun232011_03F1101.pdf I-600 Dismissed “The director determined that the petitioner failed to submit evidence that she adopted the child abroad, or that she secured custody of the child in accordance with Georgian law. The petition was denied accordingly. On appeal, the petitioner states that she did not adopt the child in Georgia because she intended to adopt her in the United States. See Form I-290B, Notice of Appeal, filed Jan. 10, 2011; Letter in Support of Appeal, dated Jan. 6, 2011. Further, the petitioner states that she has now initiated the adoption process in Georgia, and she requests additional time to complete that process. Letter in Support of Appeal, supra.” * * * * * “On appeal, the petitioner indicated that a brief or additional evidence would be submitted to the AAO within 30 days. See Form I-290B, Notice of Appeal, supra. The petitioner also requested more time to complete the adoption in Georgia. Letter in Support of Appeal, supra. More than five months have passed since the appeal was filed, and the AAO has received nothing further from the petitioner. Accordingly, the appeal will be adjudicated on the present record. Here, the evidence is insufficient to overcome the directors denial of the petition. ....”
  5. 5. Jul202011_01F1101.pdf I-600 Remanded “DISCUSSION: The Director, National Benefits Center, revoked approval of the immigrant visa petition, and the matter is now before the Administrative Appeals Office (AAO) on appeal. The directors decision will be withdrawn, and the matter remanded for further action. The director revoked approval of the Form I-600, Petition to Classify Orphan as an Immediate Relative, because the beneficiary was not under the age of 16 when the petition was filed. On appeal, the petitioner contends through counsel that the director should have made an exception to the age requirement on humanitarian grounds and on the basis of estoppel. See Form I-290B, Notice of Appeal, filed Feb. 8, 2011. The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004).” * * * * * The petitioner filed an Application for Advance Processing of Orphan Petition on August 5, 2008, when the beneficiary was 15 years old. See Form I-600A. U.S. Citizenship and Immigration Services (USCIS) approved the Form I-600A on February 9, 2009. Notice of Favorable Determination Concerning Application for Advance Processing of Orphan Petition. The petitioner filed the Petition to Classify Orphan as an Immediate Relative on January 30, 2009, when the beneficiary was 16 years old. See Form I-600. USCIS approved the Form I-600 on JuIy15, 2009.” * * * * * Analysis For intercountry adoptions under the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption done at The Hague on May 29, 1993 ("Convention"), the regulations provide, in pertinent part: If the Form I-800A was filed after the childs 15th birthday but before the childs 16th birthday, the filing date of the Form I-800A will be deemed to be the filing date of the Form I-800, provided the Form I- 800 is filed not more than 180 days after the initial approval of the Form I-800A. 8 C.F.R. § 204.313(c)(3). The regulations governing orphan petitions at 8 C.F.R. § 204.3, do not directly address the relationship between the separate filing of a Form I-600A and the statutory requirement to file the "petition"
  6. 6. while the child is under the age of 16. To promote consistency with the regulations for Convention adoption cases, USCIS deems* the Form I-600A filing date to be the Form I-600 filing date if: (1) the Form I-600A was filed after the childs fifteenth birthday but before the childs sixteenth birthday; and (2) the Form I-600 is filed not more than 180 days after the initial approval of the Form I-600A.”* Whichever decision was the first to say this should be made precedential.Jul202011_02F1101.pdf I-600 Summarily Dismissed “The petitioners appeal consists of her statements made on the Form I-290B that additional documentation is forthcoming. However, no such evidence has been received. The petitioner also requested additional time during which to submit information regarding a court proceeding in Trinidad and Tobago. Although the regulation at 8 C.F.R. § 103.3(a)(2)(vii) grants the AAO discretion to grant additional time during which to submit additional evidence for good cause shown, the petitioner has failed to make that showing given her failure to first submit the documentation she indicated would be submitted within the 30-day timeframe. The petitioners request, therefore, is denied. As the petitioner has not identified any specific, erroneous conclusion of law or statement of fact in the directors decision, the appeal must be summarily dismissed in accordance with 8 C.F.R. § 103.3(a)(l )(v).”Jul292011_01F1101.pdf I-600 Dismissed “DISCUSSION: The New York City field office director initially approved the Form I-600, Petition to Classify Orphan as an Immediate Relative. However, upon receipt of correspondence from the United States Embassy in Port-au-Prince, Haiti, the director of the National Benefits Center issued a notice of intent to revoke, and ultimately revoked, approval of the petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. Approval of the petition will remain revoked. The petitioner seeks classification of an orphan as an immediate relative pursuant to section101(b)(1)(F)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(b)(1)(F)(i). The director revoked approval of the
  7. 7. petition on the basis of his determination that the petitioner had failed toestablish that the beneficiary qualifies for classification as an orphan asdefined at section 101 (b)(1)(F)(i) of the Act. Specifically, the director foundthe record absent evidence that the beneficiarys biological father is nolonger living, as asserted by the petitioner. On appeal, counsel submits aletter.” * * * * *“The regulation at 8 C.F.R. § 204.3(k)(1) states, in pertinent part, thefollowing: An I-604 investigation must be completed in every orphan case. The investigation must be completed by a consular officer except when the petition is properly filed at a Service office overseas, in which case it must be completed by a Service officer. An I-604 investigation shall be completed before a petition is adjudicated abroad. When a petition is adjudicated by a stateside Service office, the I-604 investigation is normally completed after the case has been forwarded to visa-issuing post abroad. However, in a case where the director of a stateside Service office adjudicating the petition has articulable concerns that can only be resolved through the I-604 investigation, he or she shall request the investigation prior to adjudication. In any case in which there are significant differences between the facts presented in the approved advanced processing application and/or orphan petition and the facts uncovered by the I-604 investigation, the overseas site may consult directly with the appropriate Service office. In any instance where an I-604 investigation reveals negative information sufficient to sustain a denial or revocation, the investigation report, supporting documentation, and petition shall be forwarded to the appropriate Service office for action. Depending on the circumstances surrounding the case, the I-604 investigation shall include, but shall not necessarily be limited to, document checks, telephonic checks, interview(s) with the natural parent(s), and/or a field investigation.”

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