Chapter 8 - Adjudication

A. General Guidelines for Adjudication

The following table outlines steps an officer uses to make a decision on an orphan petition.

B. Burden and Standard of Proof

In matters involving immigration benefits, the petitioner always has the burden of proving eligibility for the immigration benefit sought.^[6] This determination may include questions of foreign law. When a PAP relies on foreign law to establish eligibility for the beneficiary, the application of the foreign law is a question of fact, which must be proved by the PAP. Therefore, the burden of proof is on the PAP to establish that the child is eligible.^[7]

The standard of proof relates to the persuasiveness of the evidence necessary to meet the eligibility requirements for a particular benefit.^[8]

The standard of proof for establishing eligibility for orphan petitions is that of a preponderance of the evidence.^[9] The PAP meets this standard if the evidence permits a reasonable person to conclude that the claim that the child is an orphan is probably true.^[10]

C. Weight and Reliability of Evidence

1. Weight of Evidence

In applying the preponderance of the evidence standard (to determine whether it is more likely than not that the child is eligible for orphan classification), an officer must consider all the evidence and make a determination based on the totality of the evidence.

If there are inconsistencies in the record, the officer should investigate and request more information^[13] to resolve any inconsistencies and give appropriate weight to the evidence in question. The officer must determine whether:

• The court or local authority was aware of any potentially derogatory information;^[14]
• Gaps or inconsistencies in the record are material; and
• The inconsistencies are overcome by other evidence in the record indicating the child meets the definition of an orphan.

If additional investigative steps do not reasonably explain an inconsistency or omission or no plausible explanation exists, then the officer should issue an additional Request for Evidence (RFE) or a Notice of Intent to Deny (NOID), as appropriate.^[15]

2. Reliability of Evidence

Officers should carefully weigh the evidence and may assign differing weight to evidence in the record, depending on the reliability of that evidence.

An officer should consider all evidence regarding the circumstances of the child’s eligibility, not just a foreign court order, decree, or certificate. For example, an officer should consider secondary evidence, such as police reports or administrative or lower court documents that led to the foreign government's decision to terminate parental rights.

USCIS generally accepts a foreign decree or order on its face as primary evidence of a determination by a foreign court. Absent specific material information that a court decree is legally invalid^[16] or was obtained by fraud, an officer may generally rely on such authentic decrees as evidence of a determination by a foreign government. An officer may, however, question the validity of a decree or order for various reasons, such as: 

• Lack of jurisdiction by the foreign court or authority;
• Lack of parental consent to the adoption;
• No or improper notice of termination of parental rights;
• Evidence of corruption, fraud, or material misrepresentation;
• Lack of due process or appropriate safeguards in the country or jurisdiction issuing the order; or
• Other credible and probative evidence to question the reliability of the documentation.

If there is reason to doubt the validity of the decree or order, the officer may request additional evidence.

D. Orphan Determination

1. Purpose

The Determination on Child for Adoption (Form I-604) (also known as an orphan determination or Form I-604) must be completed in every orphan case.^[17] The Form I-604 determination:

• Verifies that the child meets the eligibility criteria to be classified as an orphan under U.S. immigration law; and
• Ensures that the PAP meets all the immigration-related legal requirements to petition for a child to immigrate to the United States.

Generally, DOS completes the Form I-604 orphan determinations on behalf of USCIS in the child’s country of origin or where the adoption or grant of legal custody is completed to provide integrity in the orphan adjudication and to ensure that foreign documents submitted to support the orphan petition are sufficient.

2. U.S. Government Agency Roles

Domestically-Filed Petitions with USCIS

When a PAP files an orphan petition domestically (in the United States), the orphan determination is normally completed after USCIS has approved the orphan petition. However, if USCIS has articulable concerns that can only be resolved through the orphan determination, then the adjudicating officer may request that the orphan determination be completed before the final adjudication of the orphan petition.^[18] Generally, a consular officer in the child's country of origin completes the orphan determination.

Petitions Filed Outside the United States with U.S. Department of State

If the petitioner filed the orphan petition outside the United States with the U.S. Department of State (DOS) at a U.S. embassy or consulate, the consular officer completes the orphan determination before completing the adjudication of the orphan petition and visa.

E. Decisions and Actions

1. Federal Agency Roles

The adjudication of orphan petitions and the completion of orphan determinations are the exercise of the DHS Secretary's authority, delegated to USCIS.^[19] DHS further delegated authority to DOS consular officers to approve orphan petitions and to complete orphan determinations under certain circumstances.^[20]

Under this delegated authority, a consular officer has the authority to approve, but not deny, an orphan petition. In addition, while consular officers may ask PAPs for additional information, a consular officer is not authorized to issue an RFE, a NOID, or a Notice of Intent to Revoke (NOIR). If the consular officer believes that an orphan petition filed at the post is not clearly approvable, the consular officer must refer the orphan petition to USCIS.^[21]

2. Approvals

USCIS may approve an orphan petition if:

• The petition was properly filed;
• The PAP meets suitability determination and eligibility requirements;^[22]
• All security checks are current at the time of approval;^[23] and
• The PAP has met the PAP’s burden of proving by a preponderance of the evidence that the beneficiary is eligible for classification as an orphan.

If the officer approves the petition, the officer sends a notice of approval^[24] to the PAP and the PAP’s legal representative, if any.^[25]

3. Requests for Evidence and Notices of Intent to Deny

If USCIS is adjudicating the orphan petition and any of the required evidence is missing, deficient, or adverse, or the eligibility requirements have otherwise not been demonstrated,^[26] the officer issues an RFE or NOID, as appropriate.

4. Not Clearly Approvable Cases

If the consular officer reviews the record and it does not establish by a preponderance of the evidence the child meets the U.S. immigration definition of an orphan, the consular officer must refer the petition to USCIS as a not clearly approvable case.

A case is not clearly approvable if the record does not establish the child is eligible for classification as an orphan. This may happen when:

• There is a change that necessitates an RFE for an updated home study;^[27]
• Any state pre-adoption requirements have not been met for IR-4 cases;
• There is not enough information in the record to meet the preponderance of evidence standard and make a favorable determination;
• There is materially inconsistent or conflicting information in the record that must be reconciled; or
• There is adverse information in the record, such as evidence of child-buying, fraud (including fraudulent documentation), misrepresentation, or non-bona fide intent.

Consular officers cannot issue RFEs or NOIDs. A consular officer must refer any orphan petition that is not clearly approvable to the USCIS office with jurisdiction over its adjudication, along with the supporting documents, the completed orphan determination, and any other relevant documentation.^[28] Consular officers may contact USCIS before referring a case as not clearly approvable. This may be especially important in circumstances where there is a compelling medical or humanitarian need.

Once USCIS receives a not clearly approvable case, USCIS consults with the consular post and DOS’s Visa Office as necessary to understand the consular officer's concerns before proceeding. Then the USCIS officer does one of the following:

• If the available evidence is sufficient to establish that the child is an orphan by a preponderance of the evidence, the officer approves the petition and returns the petition to the consular post for visa adjudication.
• If the evidence is insufficient, the officer issues an RFE or NOID.^[29] The PAP has the opportunity to respond to the RFE or NOID with additional information. The officer must then assess the totality of the evidence in the record to determine if the PAP has met the burden of proving that the child beneficiary qualifies as an orphan.
• If there is no possibility that the petitioner can rebut the reason for the denial, the officer issues a denial.^[30]

5. Consular Returns

In some cases, after USCIS approves the orphan petition, a consular officer discovers adverse information during the orphan determination or visa process. If a consular officer discovers probative evidence^[31] that would have led USCIS to deny the petition had USCIS been aware of the information at the time of adjudication, the consular officer returns the petition to USCIS for possible revocation. A consular officer cannot revoke an approved orphan petition or issue a NOIR.

The DOS Foreign Affairs Manual contains DOS policies related to consular returns. In general, to recommend revocation of an orphan petition, the consular officer sends the orphan petition to USCIS, via the National Visa Center, along with a revocation memo, case-specific evidence, the completed orphan determination, and any other relevant documentation. Consular officers may contact USCIS to enhance coordination.

Once USCIS receives a consular return case, a USCIS officer consults with the consular post as necessary to understand the consular officer's concerns. USCIS may then:

• Issue a NOIR;^[32] or
• Reaffirm the orphan petition and send the case back to the appropriate U.S. consulate or embassy, via the National Visa Center, for visa adjudication.

If USCIS reaffirms a petition but the consular officer believes that the applicant is not eligible for a visa or discovers new evidence that the consular officer believes would result in a revocation request, the DOS’s Foreign Affairs Manual guides the consular officer’s next steps.^[33]

6. Revocation

An orphan petition must be revoked when information is discovered that would have resulted in denial had it been known at the time of adjudication.^[34] Only USCIS officers have authority to revoke approval of an orphan petition.^[35]

Before revoking an orphan petition, an officer generally must provide the PAP with a NOIR.^[36] USCIS can properly issue a NOIR when:

• There is good and sufficient cause; and
• The evidence of record at the time of the NOIR issuance, if unexplained and unrebutted, would warrant denial of the petition based upon the PAP's failure to meet the PAP’s burden of proof.^[37]

A NOIR gives the petitioner an opportunity to submit evidence sufficient to overcome the intended revocation. If USCIS has properly issued a NOIR, the PAP bears the burden of establishing that the child qualifies for the benefit sought.^[38] If the PAP fails to overcome the grounds for revocation stated in the NOIR in the PAP’s response, or the PAP fails to respond, USCIS may revoke the approval of the orphan petition if USCIS establishes good and sufficient cause for revocation.

Good and sufficient cause for revocation must be based upon adverse information, including errors of fact or law, which would have resulted in a denial had the information been known to USCIS at the time the petition was adjudicated because the PAP would have failed to meet the burden of proof at that time.^[39] Generally, such adverse information must be specific and material to the case and based upon detailed evidence. Concerns that are conclusory, speculative, equivocal, and irrelevant to eligibility do not warrant revocation.^[40] Only factual allegations that are supported by probative evidence^[41] in the record and that call the beneficiary's eligibility into question can support revocation.^[42]

7. Denials

If the officer cannot approve the orphan petition, the officer must explain in writing the specific reasons for denial.^[43] A NOID is not required unless an intended denial is based upon information or evidence of which the applicant is unaware.^[44] The denial notice must include information about appeal rights and the opportunity to file a motion to reopen or reconsider.^[45]

8. Communication and Correspondence

USCIS sends communication of its actions and decisions directly to the PAP for all case-related matters.

If a Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) or Notice of Entry of Appearance as Attorney in Matters Outside the Geographical Confines of the United States (Form G-28I) is completed by an attorney or by an accredited representative,^[46] the officer also sends a copy of USCIS decision notices to such authorized attorney or accredited representative.^[47] A person representing an organization such as a non-profit or charitable organization must first be accredited by the Board of Immigration Appeals. In general, adoption agencies do not qualify as accredited representatives. 

Information about the particulars of any case can only be given to the PAP, or to an attorney or accredited representative with a Form G-28 or Form G-28I on file. The Privacy Act forbids disclosing information about the case to anyone else, unless the PAP has signed a written consent^[48] to the disclosure or such disclosure is not prohibited by law.^[49]

Footnotes

[^ 1] See Part B, Adoptive Parent Suitability Determinations [5 USCIS-PM B].

[^ 2] The officer examines the actual circumstances to determine whether the child meets the conditions for an orphan under U.S. immigration law. See Chapter 5, Qualifying Adoptive or Custodial Relationship [5 USCIS-PM C.5].

[^ 3] See Chapter 5, Qualifying Adoptive or Custodial Relationship [5 USCIS-PM C.5].

[^ 4] See Part A, Adoptions Overview, Chapter 5, Authorized Adoption Service Providers [5 USCIS-PM A.5].

[^ 5] See Section D, Orphan Determination [5 USCIS-PM C.8(D)].

[^ 6] See INA 291. See Matter of Brantigan (PDF), 11 I&N Dec. 493 (BIA 1966). See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burden and Standards of Proof [1 USCIS-PM E.4].

[^ 7] See Matter of Kodwo (PDF), 24 I& N Dec. 479, 482 (BIA 2008) (citing Matter of Fakalata (PDF) 18 I&N Dec. 213 (BIA 1982) and Matter of Annang (PDF), 14 I&N Dec. 502 (BIA 1973)).  

[^ 8] See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burden and Standards of Proof [1 USCIS-PM E.4].

[^ 9] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 375 (AAO 2010).

[^ 10] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010). See Matter of E-M- (PDF), 20 I&N Dec. 77, 80 (Comm. 1989).  

[^ 11] See INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), which defines more likely than not as a greater than 50 percent probability of something occurring.  

[^ 12] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010).

[^ 13] If USCIS is adjudicating the case, see Section E, Decisions and Actions, Subsection 3, Requests for Evidence and Notices of Intent to Deny [5 USCIS-PM C.8(E)(3)]. If a consular officer is adjudicating the case, see Section E, Decisions and Actions, Subsection 4, Not Clearly Approvable Cases [5 USCIS-PM C.8(E)(4)] and Subsection 5, Consular Returns [5 USCIS-PM C.8(E)(5)].

[^ 14] If there are any indicators of fraud, see Chapter 6, Additional Requirements, Section A, No Child-Buying, Fraud, Misrepresentation, or Non-Bona Fide Intent [5 USCIS-PM C.6(A].

[^ 15] For a full discussion on RFEs and NOIDs, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].

[^ 16] An order may be legally invalid if the order was issued by an entity without proper authority to issue such orders or if the court invalidated its order.  

[^ 17] See 8 CFR 204.3(k)(1).

[^ 18] See 8 CFR 204.3(k)(1).

[^ 19] See INA 103(a). See INA 204(b).

[^ 20] See 8 CFR 204.3(k)(2).

[^ 21] See 8 CFR 204.3(k)(2).

[^ 22] See Part B, Adoptive Parent Suitability Determinations [5 USCIS-PM B].

[^ 23] See Part B, Adoptive Parent Suitability Determinations [5 USCIS-PM B].

[^ 24] See Notice of Approval of Relative Visa Petition (Form I-171) or the Notice of Action (Form I-797).

[^ 25] For more information on approvals, see Volume 1, General Policies and Procedures, Part E, Adjudications [1 USCIS-PM E].

[^ 26] See Volume 1, General Policies and Procedures, Part E, Adjudications [1 USCIS-PM E].

[^ 27] See Part B, Suitability Determinations, Chapter 5, Action on Pending or Approved Suitability Determinations [5 USCIS-PM B.5].

[^ 28] See 8 CFR 204.3(h)(11).

[^ 29] See Subsection 3, Requests for Evidence and Notices of Intent to Deny [5 USCIS-PM C.8(E)(3)].

[^ 30]  See Subsection 7, Denials [5 USCIS-PM C.8(E)(7)].

[^ 31] Probative evidence is evidence which proves or helps prove a fact or issue.

[^ 32] See Subsection 6, Revocation [5 USCIS-PM C.8(E)(6)].

[^ 33] For more information, see 9 FAM 502.3-3(C)(7), Orphan Visa Applications.

[^ 34] See 8 CFR 205.2. See 8 CFR 204.3(h)(14). For more information on revocations, see Volume 1, General Policies and Procedures, Part E, Adjudications [1 USCIS-PM E].

[^ 35] See 8 CFR 205.2(b).

[^ 36] See 8 CFR 205.2(b). A NOIR is not required when the petitioner or beneficiary dies or when some other automatic ground for revocation applies. See 8 CFR 205.1. See 8 CFR 205.2(b).

[^ 37] See INA 205. See 8 CFR 205.2. See 8 CFR 204.3(h)(14). See Matter of Estime (PDF), 19 I&N Dec. 450 (BIA 1987).

[^ 38] See Matter of Cheung (PDF), 12 I&N Dec. 715 (BIA 1968).

[^ 39] See Matter of Estime (PDF), 19 I&N Dec. 450, 451 (BIA 1987).  

[^ 40] See Matter of Arias (PDF), 19 I&N Dec. 568, 570-51 (BIA 1988).  

[^ 41] Probative evidence is evidence which proves or helps prove a fact or issue.

[^ 42] See Matter of Estime (PDF), 19 I&N Dec. 450, 451 (BIA 1987).  

[^ 43] A DOS consular officer does not have the authority to deny an orphan petition. For more information on denials, see Volume 1, General Policies and Procedures, Part E, Adjudications [1 USCIS-PM E].

[^ 44] See 8 CFR 103.2(b)(16).

[^ 45] For more information on appeals and motions, see Volume 1, General Policies and Procedures, Part F, Motions and Appeals [1 USCIS-PM F].

[^ 46] Under 8 CFR 292.2.

[^ 47] See 8 CFR 103.2(b)(19).

[^ 48] See Consent to Disclose Information  (Supplement 2 for Form I-600A and I-600).

[^ 49] See Privacy Act of 1974, Pub. L. 93-579 (PDF), 88 Stat. 1896 (December 31, 1974) (codified at 5 U.S.C. 552a).