Recent Orphan Petition Decisions

Petition to Classify Orphan as an Immediate Relative Pursuant to section l0l(b)(l)(F) of the

Immigration 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 Section

10l(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 PETITIONS

Subpart C--INTERCOUNTRY ADOPTION OF A CONVENTION ADOPTEE

§ 204.300 - §204.314

These 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 F2

category. 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 section

10 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 to

establish that the beneficiary qualifies for classification as an orphan as that term is defined at

section l0l(b)(l)(F)(i) of the Act. Specifically, the director found the record absent of evidence

that the beneficiary has a sole or surviving parent who is incapable of providing proper care to

the beneficiary, consistent with local standards in Pakistan.”

The child is NOT an orphan. The birthmother is deceased, having died less than a week after

childbirth. 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 is

also a stepmother in the picture. In addition, the birthfather has given some sort of informal

custody to his own father (the child’s paternal grandfather). There was no mention of the

maternal relatives or a paternal grandmother. The “adoption deed” submitted is not compliant

with Pakistani law of guardianship which is supposed to go through a family court. The

birthfather has given a letter to informally surrender the child specifically to the I-600 petitioner.

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 Pakistan

on June 9, 2005.

The petitioner is a USC married to an LPR. It is not stated if petitioner is a naturalized or born

USC. 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 the

decision, it may be the case that the petitioner and/or his wife is a blood relative attempting to

adopt 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 section

10l(b)(l)(F)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § ll0l(b)(l)(F)(i). The

field office director denied the petition on the basis of her determination that: (1) the petitioner

had failed to establish that the beneficiary qualifies for classification as an orphan as that term is

defined at section l0l(b)(l)(F)(i) of the Act; and (2) the petitioner had failed to establish that the

birth 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 the

parents to the prospective adoptive parents or for a specific adoption does not constitute

abandonment." Here, the birth father has relinquished the beneficiary to a specific person - the

petitioner (and his wife).” She still lives with her biological father but is is reported that the

mother is not in the child’s life.

“....AAO finds that the petitioner has failed to establish that the beneficiary meets the definition

of an orphan under any of the seven definitions discussed above: (1) the death or disappearance

of 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 her

sole parent, who has in writing irrevocably released the child for emigration and adoption, to

provide her with proper care; or (7) the incapability of her surviving parent, who has in writing

irrevocably 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 disturb

the field office director's denial of the petition.”

The petitioner is a fifty-two-old citizen of the United States. The beneficiary was born in

Ethiopia 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.

Feb042010_01F1101.pdf Appeal Dismissed [Fresno, CA]

“The petitioner seeks classification of an orphan as an immediate relative pursuant to section

10l(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 the

petitioner had submitted evidence and testimony lacking in credibility, the petitioner had failed

to establish that the beneficiary qualifies for classification as an orphan, as the term is defined at

section l0l(b)(l)(F)(i) of the Act, 8 U.S.C. § ll0l(b)(l)(F)(i). Specifically, the field office director

raised questions regarding: (1) the veracity of the testimony of the petitioner during his 2001

naturalization interview; (2) the petitioner's submission of three different birth certificates for the

beneficiary, and the differences among those birth certificates; (3) the testimony of record with

regard to the placement of the beneficiary with the petitioner's wife; (4) a conflict between the

birth certificates and the certificate of foundling; (5) the circumstances surrounding the DNA

testing of the petitioner, his wife, and the beneficiary; and (6) the home study conducted in

connection with the couple's 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 born

in the Philippines on February 6, 1993. According to the home study submitted with the Form 1-

600, the beneficiary began living with the petitioner's wife in the Philippines shortly after she

was born.”

“Beyond those concerns enumerated by the field office director, the AAO notes further that the

November 8, 2005 order issued by the Regional Trial Court, Fourth Judicial Region, Branch 79,

states that, on November 18, 2004, the petitioner's wife testified that the elderly woman who

gave 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 child's 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 petitioner's wife raises questions with regard to

whether 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 director's decision, the issue

of 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

Orphan as an Immediate Relative. However, upon receipt of correspondence from the United

States Consulate in Guangzhou, China, the field office director 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 rejected as untimely filed.

The regulation requires that an appeal from the revocation of the approval of a petition must be

filed within 15 days after service of the notice of revocation. 8 C.F.R. § 205.2(d). If the notice

was 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 section

10l(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 her determination that the petitioner had

failed to establish that the beneficiary qualifies for classification as an orphan as that term is

defined 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 in

Malaysia on March 24, 2007. The record indicates that the petitioner and her husband adopted

the beneficiary in Malaysia on September 28, 2007.”

“.... In particular, the field office director noted that the beneficiary's birthparents relinquished

the beneficiary to the petitioner and her husband directly. ...”

“.... AAO finds that the petitioner has failed to establish that the beneficiary meets the definition

of an orphan under any of the five definitions discussed above: (1) the death or disappearance of

both parents; (2) abandonment by both parents; (3) desertion by both parents; (4) separation from

both parents; and (5) the loss of both parents. ...”

AAO did not discuss whether it could have been a bogus family adoption, a case of child

buying, or use of an unauthorized adoption agent or agency. It could easily have been any of

them 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 as

an Immediate Relative. The Administrative Appeals Office (AAO) dismissed a subsequent

appeal and, in response to two subsequent motions to reopen or reconsider, affirmed its decision

to deny the petition. The matter is again before the AAO on motion to reopen or reconsider. The

motion will be granted. The previous decisions of the field office director and the AAO will be

affirmed. The petition will be denied.

The petitioner seeks classification of an orphan as an immediate relative pursuant to section

10l(b)(l)(F)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § ll0l(b)(l)(F)(i). The

field office director denied the petition on July 22, 2008. The AAO dismissed the petitioner's

appeal on February 5, 2009. The AAO affirmed that decision, in response to subsequent motions

to reopen or reconsider, on May 11, 2009 and October 19, 2009. As the facts and procedural

history of this case were adequately documented in its February 5, 2009 decision, the AAO will

only repeat certain facts as necessary here.”

The record was full of contradictions and inconsistencies AND the birth mother may have

been coerced. This decision contains a very interesting footnote regarding e-mail messages

and 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 section

10l(b)(l)(F)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § ll0(b)(l)(F)(i). The

field office director denied the petition on the basis of her determination that (1) the petitioner

had failed to submit an original adoption decree, as specifically requested by the field office

director; and (2) that the petitioner had failed to establish that the petitioner's adoption of the

beneficiary in Nigeria was in accordance with the laws of Nigeria. Accordingly, the petitioner

had failed to establish that the beneficiary qualifies for classification as 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).”

“.... Beyond the decision of the director, the AAO finds further that the petitioner has further

failed to establish that the beneficiary's surviving parent is incapable of providing proper care to

the 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 biological

grandparent or great-grandparent of the teenage beneficiary. Why else would petitioner’s

daughter be submitting an affidavit in this case?

Mar052010_02F1101.pdf Appeal Dismissed [Houston, TX] 2 of 3

It seems to be a second Nigerian grandkid. Same As above case except for DOB of beneficiary (a

younger sibling).

Evidence includes a letter from the "royal highness of our town"!

Mar052010_03F1101.pdf Appeal Dismissed [Houston, TX] 3 of 3

It seems to be a second Nigerian grandkid. Same as above case with the same DOB of

beneficiary (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 section

10l(b)(l)(G) of the Immigration and Nationality Act ("the Act"), 8 U.S.C. § 1l0l(b)(l)(G). The

director denied the petition on the basis of his determination that, because the petitioner had

failed to establish that the beneficiary's birthparents are incapable of providing proper care, the

petitioner had failed to establish that the beneficiary is eligible for classification as an immediate

relative under the Act.”

“The petitioner, a citizen of the United States, filed Form I-800A, Application for Determination

of 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 in

India on August 19, 2007, and that she currently lives with her birth parents. The record indicates

further that the beneficiary's birthfather is the brother of the petitioner's 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 Classify

Orphan as an Immediate Relative. However, upon receipt of correspondence from the United

States Consulate in Bridgetown, Barbados, the director 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 rejected as untimely filed. The AAO will

return 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 an

orphan under the first half of this definition. However, neither the correspondence from the

consulate nor the decision of the director contained any analysis of whether the beneficiary

qualifies as an orphan under the second half of this definition: whether he has a sole or

surviving parent who is incapable of providing proper care, and who has in writing irrevocably

released the child for emigration and adoption,' and counsel notes this failure to address the

second half of the definition of an "orphan." Counsel's submission, therefore, qualifies as a

motion to reconsider. [Emphasis added.]

Here, the untimely appeal appears to meet the requirements of a motion to reconsider. The

official having jurisdiction over a motion is the official who made the last decision in the

proceeding, in this case the director. See 8 C.F.R. § 103.5(a)(l)(ii). Therefore, the director must

consider 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 returned

by the same Consulate for the same inadequate reason and was also improperly handled by

USCIS.

“The field office director's October 7, 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_03F1101.pdf Case Remanded [Boise, ID]

ALL of the Director’s concerns were overcome and the whole denial was withdrawn. It is

expected to have been approved.

ORDER: The field office director's 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 section

101(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 revoked approval of the petition on the basis of her determination that the

petitioner had failed to establish that the beneficiary's surviving parent is incapable of providing

proper care to the beneficiary, consistent with local standards in Lebanon. Accordingly, the

petitioner had failed to establish that the beneficiary qualifies for classification as an orphan as

that 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 the

beneficiary's birth mother, his surviving parent, is incapable of providing proper care to the

beneficiary, 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, 2008

NOIR, the field office director stated that the investigation had indicated, in relevant part, the

following:

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

beneficiary's 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 beneficiary's brother is also the beneficiary of a Form 1-600 filed by the petitioner and her

husband. 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 section

101(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 to

establish that the beneficiary qualifies for classification as an orphan as that term is defined at

section 101(b)(l)(F)(i) of the Act. Specifically, the field office director found that because the

petitioner's adoption of the beneficiary was the result of a direct relinquishment or release, and

that the beneficiary had been relinquished or released to a third party for custodial care in

anticipation of, or preparation for, adoption, and the third party was not authorized to act in such

a capacity under the child welfare laws of the foreign-sending country, the petitioner had failed

to establish that the beneficiary had been "abandoned" by both birth parents as that term is

defined in the regulation.”

“... [T]he record indicates clearly that: (1) the birthparents intended to transfer "all parental

rights, obligations, and claims to the child, as well as all control over and possession of the

child," to the petitioner and her husband; and (2) placement of the beneficiary with the

petitioner's mother-in-law was in fact "in anticipation of, or preparation for, adoption," and the

record fails to establish that the petitioner's mother-in-law is authorized under the child welfare

laws of Cape Verde to act in such a capacity.”

Petitioners cannot use unauthorized intermediaries [especially relatives] rather than legally

authorized 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 section

101(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 her determination that the petitioner had

failed to establish that the beneficiary qualifies for classification as an orphan as defined at

section 101 (b)(l)(F)(i) of the Act. Specifically, the field office director found that the petitioner

had 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 is

the petitioner's biological nephew, was born in Nigeria on July 29, 1996, and the record

indicates that the petitioner adopted him in Nigeria on April 9, 2008. The field office director

approved the Form I-600A, Application for Advance Processing of Orphan Petition, on behalf of

the 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 a

subsequent request for additional evidence, to which the petitioner filed a timely response. In her

September 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 by

both birthparents and met the definition of an "orphan," as defined at section 101 (b)(l)(F)(i) of

the 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 section

101(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 petitioner

had failed to establish that the beneficiary qualifies for classification as an orphan as defined at

section 101(b)(l)(F)(i) of the Act. Specifically, the field office director found that because the

petitioner's 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 both

birthparents as that term is defined in the regulation.”

Unauthorized intermediary (petitioner’s mother) for a direct adoption. Were the birthparents

relative, friends, or neighbors????

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 the

field office director improperly gave notice to the petitioner that an appeal could be filed within

30 days of the revocation decision. However, the field office director's improper notice to the

petitioner regarding the time period during which an appeal may be filed does not extend the

regulatory requirement that the appeal of a revocation decision issued by mail must be filed

within 18 days. U.S. Citizenship and Immigration Services (USCIS) received the petitioner's

Form I-290B, Notice of Appeal, on November 12, 2009, 34 days after the field office director's

decision was issued. Accordingly, the appeal was untimely filed.”

Jul152010_01F1101.pdf Appeal Dismissed [Providence, RI]

“.... Specifically, the field office director found that because the petitioner's 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 both parents as defined in the regulation.”

“The record contains statements from both the birthmother and birthfather consenting to the

adoption. In their statements, both birthparents stated that although the beneficiary had been

living with the petitioner's mother-in-law since she had been two months old, they had remained

in 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 petitioner

seeks 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 section

101(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 his determination that the petitioner had failed to

establish that the petitioner's adoption of the beneficiary in Nigeria took place in accordance with

the laws of Nigeria. Accordingly, the petitioner the petitioner had failed to establish that the

beneficiary qualifies for classification as an orphan as defined at section 101(b)(l)(F)(i) of the

Act, 8 U.S.C. § 1101(b)(l)(F)(i).”

Same situation as above case.

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 section

101(b)(l)(F)(i) of the Immigration and Nationality Act (the Act), § U.S.C. § 1101(b)(l)(F)(i). The

district director denied the petition on the basis of his determination that the petitioner had failed

to establish that the beneficiary qualifies for classification as an orphan as defined at section

101(b)(l)(F)(i) of the Act. Specifically, the district director found the record absent of evidence

that the beneficiary has a sole parent who is incapable of providing proper care to the

beneficiary, consistent with local standards in Guyana.”

“...[T]he 1-604 investigation revealed derogatory information regarding the birthmother's alleged

inability to provide proper care consistent with local standards. Such derogatory

information included, in relevant part, the following:

The beneficiary's birthmother appeared to the investigators to be young, healthy, and

articulate.

The beneficiary's birthmother lived with her two sisters, two of her three children, and

her sister's children.

The beneficiary's birthmother received financial support from her mother.

The investigators took note of the birthmother's 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 birthmother's 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.

The petitioner, through counsel, filed a supplemental submission to the district director after

the U.S. Embassy returned the file to the district director, but before the district director issued

the NOIR. In that submission, counsel submitted several documents pertaining to the

birthmother's alleged incapability of providing proper care to the beneficiary, including the

following:

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 birthmother's mother and beneficiary's

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 birthmother's sisters and

beneficiary's 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 beneficiary's 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.

The district director relayed the specific concerns of the U.S. Embassy that arose during the

course of the 1-604 investigation to the petitioner in his January 19, 2010 NOIR, and stated that

beneficiary's birthmother had not demonstrated her incapability of providing the beneficiary's basic needs, consistent with local standards in Guyana.

Counsel submitted a timely response to the NOIR. In her February 17, 2010 letter, counsel stated

that although relatively healthy and articulate, the birthmother was, and is, incapable of raising

the beneficiary. Counsel submitted additional testimonial evidence regarding the birthmother's

alleged 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 birthmother's 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 birthmother's mother and [petitioner’s] biological

grandmother, dated February 15, 2010. She stated that the birthmother has no role in the

beneficiary's 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 counsel's response insufficient and revoked approval of the petition on

March 15, 2010. In his revocation, the district director stated that although it appears as though

the birthmother is not currently employed the record lacks evidence that she is unable or

incapable of holding employment. Accordingly, the beneficiary does not meet the definition of

an orphan as a result of a sole parent incapable of providing proper care to the beneficiary

consistent with local standards.”

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 to

section 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 petitioner's

improper filing of the petition precluded the beneficiary's classification as an immediate relative

under the Act.”

“On March 15,2010, the director denied the Form 1-800 on two grounds. The director found first

that 8 C.F.R. § 204.313(c)(2) mandated denial of the petition because the central authority

authorized placement of the beneficiary after his sixteenth birthday. Second, the director found

that since the Form I-800A was filed after the beneficiary's fifteenth birthday, but before his

sixteenth birthday, and the petitioner did not file the Form 1-800 within 180 days of the Form I-

800A's approval, the regulation at 8 C.F.R. § 204.3 13(c)(3) also mandated denial of the

petition.”

“The AAO agrees with the director's analysis. As the central authority authorized placement of

the beneficiary after his sixteenth birthday, the regulation at 8 C.F.R. § 204.3 13(c)(2) mandates

denial of the petition. Moreover, because the Form I-800A was filed after the beneficiary's

fifteenth birthday, and the Form I-800 was not filed within 180 days of the Form I-800A's

approval, the regulation at 8 C.F.R. § 204.3 13(c)(3) also mandates denial of the petition. The

petitioner 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 director's decision will be withdrawn and the matter remanded for further processing.

There was inadequate legal analysis under the “sole parent” and “incapable of providing proper

care” standards and regulations.

F2 Decisions:

Feb162010_01F2101.pdf Appeal Dismissed. [Dallas, TX]

“The field office director denied the applicant's request to extend approval of his previously-

approved Form I-600A on the basis of the applicant's failure to file such request during the time

period during which he was eligible to do so. On appeal, the applicant indicates that such failure

to file the extension request in a timely manner was not intentional, and requests that the

application be approved.”

A purely procedural denial. Since the request was too late, a new fee was required, that’s all. A

new form, fee, and Home Study will be required. This makes sense in order to ensure proper care

can 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 for

Advance Processing of Orphan Petition, on February 20, 2004. The applicant appealed the

director's decision, and the Administrative Appeals Office (AAO) withdrew such decision on

January 21, 2005. The AAO remanded the matter to the director for further action and the entry

of 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 director's 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 the

applicant 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 place

counsel and the applicant on notice that he was certifying his decision to the AAO. The director

issued a newly-dated denial of the application on December 3, 2009, and certified his decision to

the AAO for review. The director provided proper notice of the certification to counsel and the

applicant.1 The contents of these decisions are part of the record of proceeding, and their

contents need not be repeated here.

The applicant elected not to respond to the director's August 23, 2006 request for additional

evidence, and has chosen not to submit additional evidence to the AAO to rebut the findings of

the director's notice of certification. Accordingly, the record is considered to be complete as it

now stands, and the applicant has failed to provide evidence of rehabilitation after his arrest for

domestic violence. Accordingly, the applicant has failed to overcome the ground for denial of the

application. The director's 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 director's December 3, 2009 decision is affirmed. The petition is denied.

[Footnote in original]

___________ 1. The director notified the applicant, incorrectly, in his December 3, 2009 decision that he could file a motion

to reopen, pursuant to 8 C.F.R. 5 103.5(a)(2), and set forth the criteria for filing such a motion. However, as

the director was certifying his decision to the AAO for review, the applicant had the right to submit a brief

and/or additional evidence directly to the AAO, regardless of whether his submission satisfied the

substantive criteria to qualify as a motion to reopen. Furthermore, as the director was certifying his decision

to the AAO for review, his decision was not final, and the filing of a motion by the applicant in response to

the decision would have been improper. The director, therefore, should not have included that discussion in

his decision. However, as the director properly notified the applicant in the notice of certification that he had

the right to submit additional evidence to the AAO in response to the certification within 30 days, the AAO

finds the director's inclusion of the discussion relating to motions in his decision to have been a harmless

error.

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 of

Suitability to Adopt a Child from a Convention Country, and the matter is now before the

Administrative Appeals Office (AAO) on appeal. The director's decision will be withdrawn and

the matter remanded to the director for continued processing of the applicant's [ ] I-800A

application.

The director denied the application on the basis of his determination that the applicant had failed

to comply with 8 C.F.R. § 204.311(c)(12). Specifically, the director found inadequate a

statement submitted by the applicant regarding a 1985 incident during which she was arrested for

operating a motor vehicle without a license. On appeal, the applicant submits a supplemental

statement regarding the incident.

******

In the May 20, 2009 home study, the preparer disclosed that the applicant had been arrested in

1985 for having driven a motor vehicle after the revocation of her driver's license. However, the

preparer did not submit a certified copy of the documentation showing the final disposition of the

incident, as required by 8 C.F.R. § 204.311(~)(12). Nor did the applicant submit a written

statement, signed under penalty of perjury, providing the details of the arrest, along with any

mitigating circumstances, as is also required by 8 C.F.R. § 204.311(~)(12). As such, the director

issued a request for additional evidence on July 22, 2009 and requested, among other items, the

aforementioned evidence and information.

The applicant responded to the director's request for additional evidence on August 12, 2009.

Although the applicant's submission of a certified copy of the court proceedings pertaining to the

1985 arrest satisfied the first half of 8 C.F.R. § 204.311(c)(12), her undated letter, which

consisted of two sentences, did not satisfy the second half of that regulation. The applicant's

discussion of the incident consisted of a single sentence, and she did not provide any mitigating

circumstances or explain why she failed to include such a discussion. Nor did she sign the letter

under penalty of perjury. As the applicant's letter was deficient, the director denied the

application on August 24, 2009.

The applicant submitted a timely appeal on September 16, 2009. On appeal, the applicant

submits a September 14, 2009 letter, which she signed under penalty of perjury, and in which she

discusses the circumstances surrounding her arrest as well as the mitigating circumstances. The

applicant, 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 establish

sufficient rehabilitation," and the AAO finds that the applicant has made such a demonstration.

The applicant's arrest for driving a motor vehicle with a revoked driver's license occurred nearly

25 years ago, when she was twenty years of age. The record indicates that the applicant has no

criminal history prior to, or subsequent to, that incident. The home study reflects that the

applicant was approved by the preparer as a suitable parent. In addition, the home study report

reflects that the applicant has a stable home environment and holds a stable job. Although the

AAO does not wish to discount the seriousness of driving a motor vehicle without a license, in

this particular case the evidence of record does not indicate that the petitioner's 1985 arrest for

that 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 8

C.F.R. § 204.311(c)(12) in that the record has now been supplemented with an adequate

statement from the applicant regarding her 1985 arrest, as well as the substantive requirements of

8 C.F.R. § 304.311(d)(l)(ii) in that she has demonstrated sufficient rehabilitation.

The director's 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 director's decision is withdrawn. The matter is remanded to the director for

further 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 Advance

Processing of an Orphan Petition, and the matter is now before the Administrative Appeals

Office (AAO) on appeal. The field office director's decision will be withdrawn and the matter

remanded for further processing and adjudication of any remaining issues to ensure that all other

grounds of eligibility are met.

The field office director denied the applicant's Form I-600A on the basis of her determination

that the home study submitted by the applicant had failed to properly evaluate the applicant's

financial situation. On appeal, the applicant submits additional information and testimony.

*****

ORDER: The field office director's 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.