Attorney Al
Community Legal Services
1 Main St., Ste. 400
Anytown, Anystate 00000
Attorney for the Petitioner:
John Smith
2 Main St
Anytown, Anystate 00000
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
BOARD OF IMMIGRATION APPEALS
_____________________________________
)
In the matter of
:
)
)
JOHN SMITH (Petitioner)
)
)
USCIS File No.: EAC-XX-XXX-XXXXX
JEN SMITH (Beneficiary)
)
)
Re: Visa Petition Appeal
)
____________________________________)
BRIEF & EXHIBITS IN SUPPORT OF VISA PETITION APPEAL
1
RE: Visa Petition Appeal
John Smith (Petitioner)
Jen Smith ( Beneficiary)
EAC-XX-XXX-XXXXX
Attorney Al
Community Legal Services
1 Main St., Ste. 400
Anytown, Anystate 00000
Attorney for the Petitioner:
John Smith
2 Main St,
Anytown, Anystate 00000
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
BOARD OF IMMIGRATION APPEALS
_____________________________________
)
In the matter of
:
)
)
JOHN SMITH (Petitioner)
)
)
JEN SMITH ( Beneficiary) )
)
Re: Visa Petition Appeal
)
____________________________________)
USCIS File No.: EAC-XX-XXX-XXXXX
TABLE OF CONTENTS
PAGE
TABLE OF CONTENTS
2-3
PETITIONER’S BRIEF IN SUPPORT OF APPEAL
4-7
FACTS
4-5
ARGUMENT
5-7
CONCLUSION
7
PROOF OF SERVICE
8
APPEAL EXHIBITS
EXHIBIT NUMBER
USCIS Decision Envelope, postdated August 2, 20010
A
2
RE: Visa Petition Appeal
John Smith (Petitioner)
Jen Smith ( Beneficiary)
EAC-XX-XXX-XXXXX
& Decision, dated July 30, 2010
USCIS RFE, dated January 04, 2010
B
Haiti: SOS des Archives Nationales D’Haiti, LE NOUVELLISTE
(Haitian newspaper), Feb. 5, 2010 (detailing that the National
Archives of Haiti is not providing services and needs to find a
new location to offer services).
C
Demenagement des Archives Nationales d’Haiti (ANH), Radio
Metropole Haiti, Feb. 24, 2010 (providing that the National
Archives will re-open its doors on March 15, 2010 after shutting
down due to the earthquake) available at
htt://www.metropolehaiti.com/metropole/full_une_fr.php?id=17046
Affidavit from Petitioner
D
Original Extracts of the Petitioner and Beneficiary’s Birth
Certificate from the Archives National with Translation
E
Copy of initial I-130, Petition for Alien Relative, sent to USCIS
and receipt notice dated August 27, 2002
F
Letters from Petitioner and Beneficiary’s Parents
G
Chardy, Alfonso, 200,000 Haitian Migrants Could File for
Temporary Protected Status, MIAMI HERALD, Jan. 21, 2010
available at http://www.miamiherald.com
H
McKinley, Jr, James C, Vows to Move Fast for Haitian Immigrants in US,
The Ledger, Jan. 21, 2010 available at http://www.theledger.com
Copy of Visa Bulletin for August 2010
I
Copy of Church Bulletin showing that John Smith is the Senior Pastor
for the El Elyon Ministries Church
J
Copy of Nassau County Clerk’s Office Endorsement Cover Page showing
Petitioner’s Church is a registered religious corporation
3
RE: Visa Petition Appeal
John Smith (Petitioner)
Jen Smith ( Beneficiary)
EAC-XX-XXX-XXXXX
SUMMARY
John Smith (hereinafter the Petitioner), a US citizen and native of Haiti, filed a form I-130,
Petition for Alien Relative (hereinafter “I-130”), for his sister, Jen Smith (hereinafter “the
Beneficiary”), which USCIS received on or about August 23, 2002. See. Exh. F, copy of Receipt
Notice. In January 2010, the Petitioner received an RFE requesting his and the Beneficiary’s
original birth certificates or original extracts of their birth certificates. See. Exh. B, copy of
USCIS RFE. Due to the destruction caused by the January 12, 2010 earthquake that destroyed
much of Port-au-Prince it would be impossible to obtain original documents from the Haitian
National Archives as it ceased operations. See Exh. C, Newspaper Articles Detailing Cessation
of Services at the Haitian National Archives.
In lieu of the original documents, the Petitioner provided a copy of the extract of his birth
certificate with translation and a copy of the extract of Beneficiary’s birth certificate with
translation, which establish the brother and sister relationship between the Beneficiary and the
Petitioner. See Exh. A, USCIS Decision and Exh. D, Petitioner’s Affidavit. Given the inability to
obtain original documents after the earthquake, the Petitioner was afraid to submit the original
extracts for fear they would not be returned to him. See Exh. D, Petitioner’s Affidavit. These
were the only documents the Petitioner had to prove his and his sister’s birth. The Petitioner
acted pro se when filing the I-130 and responding to the RFE. Id.
Since the documentation requested in the RFE is enclosed, the BIA should reverse the USCIS’
decision and remand the petition to the USCIS so it could review the petition with “generosity of
spirit” that the Service has shown when addressing issues affecting Haitians in the aftermath of
the devastating earthquake. In the alternative, the BIA should reverse the USCIS’ decision and
remand the petition to the USCIS so it could consider evidence that was previously unavailable
in that the Petitioner and the Beneficiary are willing to take a DNA test to prove the qualifying
relations.
FACTS
The Petitioner, a US citizen and native of Haiti, filed an I-130 for his sister, the Beneficiary, on
or about August 22, 2002. See. Exh. F, copy of Receipt Notice. In February 2010, the Petitioner
received an RFE requesting, inter alia, his and the Beneficiary’s original birth certificate or the
original extracts of their birth certificates. Exh. B, copy of USCIS’ RFE. Several days after
receiving the RFE, a devastating earthquake struck Haiti, destroyed Port-au-Prince, and wreaked
havoc on the Haitian administration causing most government activity to screech to a halt. The
Haitian National Archives, which provides original of birth certificates, ceased services. See
Exh. C, copies of Newspaper Articles. The Petitioner tried to call the Haitian National Archives,
4
RE: Visa Petition Appeal
John Smith (Petitioner)
Jen Smith ( Beneficiary)
EAC-XX-XXX-XXXXX
but the phone lines were dead. See Exh. D, Petitioner’s Affidavit. Many employees from the
Archives perished during the earthquake, so it was impossible to reach anyone. Id. When the
Petitioner went to the Haitian consulate, he was advised to wait until normalcy returned to Haiti
before trying to obtain documents from the Archives. Id.
As the deadline for the RFE approached, the Petitioner was busy comforting the parishioners at
his church and assisting others to provide aid to Haitians in Haiti, that he was not able to seek
advice of an attorney and responded to the RFE pro se. Id. In response to the RFE, the
Petitioner submitted copies of documents he had, which were a copy of the extract of his birth
certificate with translation and a copy of the extract of the Beneficiary’s birth certificate with
translation. Id. He did not submit originals of these documents because through his experience
he learned it would be impossible to obtain another original birth certificate or another original
extract of a birth certificate from the Haitian National Archives. He only had one original extract
for his birth certificate and his sister’s birth certificate.
In August 2010, the Petitioner received a denial notice of the I-130 stating that he did not submit
sufficient documentation to establish that he and the Beneficiary qualify as children of a common
parent and as such failed to “qualify the [B]eneficiary for classification under section 203(a)(4)
of the Act.” See Exh. A, copy of USCIS Decision. Since then the Petitioner has sought assistance
from counsel and desperately needs to have this petition remanded because if it were approved,
its priority date would be current and his sister could obtain a green card.
ARGUMENT
1. IN ITS DECISION THE USCIS ABUSED ITS DISCRETION BECAUSE IT
FAILED TO TAKE INTO ACCOUNT USCIS DIRECTOR ALEJANDRO
MAYORKAS’ STATED “GENEROSITY OF SPIRIT” POLICY WHEN
DECIDING THE I-130 PETITION FOR A HAITIAN PETITIONER IN LIGHT
OF HUMANITARIAN CONCERNS IN HAITI.
After the earthquake, USCIS responded quickly to assist Haitians by expediting the processing of
family-based petitions, by granting requests for deferred action on a case-by-case basis, and by
extending the stay of those who entered the US on a B-2 visa after the earthquake. USCIS
Director Alejandro Mayorkas stated that USCIS ``will be reviewing the applications with a
generosity of spirit” given the humanitarian crisis in Haiti. See. Exh. H, copy of Miami Herald
Article. It would be in line with Director Mayorkas and the USCIS policy to provide “generosity
of spirit” for the BIA to remand the I-130 to the USCIS considering the Petitioner has provided
the original documentation requested in the RFE.
Given that the Petitioner filed the I-130 and responded to the RFE pro so, is a native of Haiti,
5
RE: Visa Petition Appeal
John Smith (Petitioner)
Jen Smith ( Beneficiary)
EAC-XX-XXX-XXXXX
and is not a native English speaker, he provided the USCIS with what he thought was the best
available evidence, which, according to the USCIS decision, was a copy of the extract his birth
certificate and a copy of the extract of Beneficiary’s birth certificate. As aforementioned, it was
impossible for the Petitioner to obtain original birth certificates or original extracts from the
Haitian National Archives and other Haitian institutions during the RFE period. Since the
Petitioner only had one original of the extract of his and his sister’s birth certificate, he feared
that by sending in the originals they might get lost and it would be impossible for him to obtain
new ones.
The Petitioner filed his I-130 on or about August 22, 2002 and its priority date is on or about the
same date. According to the Visa Bulletin for August, the priority date for an I-130 filed on or
about August 22, 2002 is current and an immigrant visa is available for the Beneficiary. See
Exh. I, Visa Bulletin for August 2010. If the Petitioner’s appeal is not granted, then he would be
required to file a new I-130 for the Beneficiary and given the current processing times the new
priority date would not be current for at least nine years. Considering the destruction in Haiti,
this would have devastating consequences for the Petitioner and the Beneficiary. Furthermore
there is no discrepancy between the I-130 and the original extract of the Beneficiary’s birth
certificate as was stated in the USCIS’ decision. See. Exh. E, Original Extracts of Birth
Certificates, and Exh. A, USCIS’ Decision. This appeal should be granted remanding the I-130 to
the USCIS since it abused its discretionary policy in failing to follow Director Mayorkas’ stated
policy of providing “generosity of spirit” when reviewing applications in light of the
humanitarian crisis in Haiti.
2. THE DECISION OF THE USCIS MUST BE REVERSED AND THE I-130
MUST BE REMANDED BECAUSE EVIDENCE OF DNA TEST RESULTS
THAT WERE PREVIOUSLY UNAVAILABLE WILL BE MADE
AVAILABLE PROVING THE BENEFICIARY IS A QUALIFIED
IMMIGRANT UNDER INA § 203(a)(4) THEREBY WARRANTING AN
APPROVAL OF THE I-130.
Under INA § 203(a)(4), a sister of a US citizen, where the citizen is at least 21 years of age is a
qualified immigrant. The Petitioner and the Beneficiary are willing to undergo DNA testing to
prove that the Beneficiary is the sister of the Petitioner. If the Petitioner had counsel, he would
have been advised of other evidence, such as affidavits or a DNA test, which could be submitted
in lieu of the original extracts of birth certificates. If the RFE requested a DNA test, the
Petitioner and the Beneficiary would have certainly provided them.
USCIS broadly uses DNA testing to determine qualifying relationships when adjudicating I-130
petitions. DNA would offers simplicity and certainty to the adjudication process especially in
this case where it is difficult to obtain documentation due to destruction caused by a natural
6
RE: Visa Petition Appeal
John Smith (Petitioner)
Jen Smith ( Beneficiary)
EAC-XX-XXX-XXXXX
disaster. Petitioner not being aware that DNA testing was an option to respond to the RFE has
been denied an effective opportunity to prove that he and the Beneficiary are indeed brother and
sister, therefore affording the beneficiary an approved I-130 enabling her to apply for a green
card. After seeking counsel and being aware of the DNA recourse, Petitioner and Beneficiary are
now ready to provide USCIS with a DNA test results if such would be accepted. Such evidence
was previously unavailable because a DNA test was not requested and should now be accepted
as new evidence. Therefore, the BIA should reverse the USCIS’ decision and remand the I-130
so new evidence could be considered.
CONCLUSION
In his reply to the USCIS’ RFE, the Petitioner provided a copy of the extract of his and the
Beneficiary’s birth certificate because he feared if he submitted the original they would be lost
and impossible to recover since the Haitian National Archives ceased operations after the
January 12, 2010 earthquake. Since the Petitioner has now submitted the original of the extract
of his and the Beneficiary’s birth certificate, the BIA should remand this petition to the USCIS
because it abused its discretion when denying the I-130 for failing to heed Director Mayorkas’s
stated policy of providing “generosity of spirit” when adjudicating these petitions in light of the
humanitarian crisis in Haiti.
In the alternative, the Board should remand this petition to the USCIS because new evidence will
be made available when the Petitioner and the Beneficiary submit to DNA testing proving that
the Beneficiary is a qualifying relative and that the I-130 petition should have been approved.
Respectfully submitted by his attorney,
Attorney Al
Attorney for the Petitioner John Smith
Associate Director for Immigration
Community Legal Services
1 Main St, Ste 400
Anytown, Anystate 00000
Tel: 555-555-5555
Fax: 555-555-5555
E-mail: attorneyal@attorneyal.com
7
RE: Visa Petition Appeal
John Smith (Petitioner)
Jen Smith ( Beneficiary)
EAC-XX-XXX-XXXXX
PROOF OF SERVICE
I hereby certify that the foregoing Notice of Appeal & Brief and Exhibits in Support of Appeal
were served via first-class mail on August 31, 2010 to Assistant Chief Counsel, Bureau of
Immigration and Customs Enforcement, 26 Main St, Anytime, Anystate 00000.
____________________________
Attorney Al
Attorney for the Petitioner John
Smith
Associate Director for Immigration
Community Legal Services
1 Main St, Ste 400
Anytown, Anystate 00000
Tel: 555-555-5555
Fax: 555-555-5555
E-mail: attorneyal@attorneyal.com
Dated this 31st day of August 2010.
8
RE: Visa Petition Appeal
John Smith (Petitioner)
Jen Smith ( Beneficiary)
EAC-XX-XXX-XXXXX
9
RE: Visa Petition Appeal
John Smith (Petitioner)
Jen Smith ( Beneficiary)
EAC-XX-XXX-XXXXX