U.S.
Citizenship
and
Immigration
Services
In
Re:
26180583
Motion
on
Administrative
Appeals
Office
Decision
Form
1-360,
Petition for
Special
Immigrant
Juvenile
Non-Precedent
Decision
of the
Administrative Appeals Office
Date:
APR.
24,
2023
The
Petitioner
seeks
classification
as
a
special
immigrant juvenile
(SIJ).
See
sections
101(a)(27)(J)
and
204(a)(l)(G) of
the
Immigration
and
Nationality Act
(the
Act), 8
U.S.C.
§§
1101(a)(27)(J)
and
1154(a)(l)(G).
SIJ
classification
protects
foreign-born children
in
the
United
States
who
cannot
reunify with
one
or
both
parents
because
of
abuse,
neglect,
abandonment,
or
a similar
basis
under
State
law.
The
Director of
the
National
Benefits
Center
denied
the
Form
1-360,
Petition for
Special
Immigrant
Juvenile
(SIJ
petition), finding
that
the
Petitioner
was
not
under
the
age
of
21
at
the
time of filing
and
does
not
warrant
U.S.
Citizenship
and
Immigration
Services
(USCIS)'
consent
as
the
record
contains
material
inconsistencies.
The
Petitioner filed a
combined
motion
to
reopen
and
to
reconsider,
which
the
Director
denied.
We dismissed the Petitioner's appeal.
The
matter
is
now
before
us
as
a
combined
motion
to
reopen
and
to
reconsider.
8
C.F.R.
§ 103.5(a)(2)-(3).
The
Petitioner
bears
the
burden
of proof
to
demonstrate
eligibility
by
a
preponderance
of
the
evidence.
Matter of
Chawathe,
25
l&N
Dec.
369,
375-76
(AAO
2010).
Upon
review,
we
will
dismiss
the
motion.
I.
LAW
A motion
to
reopen
must
state
new
facts
to
be
proved
and
be
supported
by
affidavits
or
other
documentary
evidence.
8
C.F.R.
§ 103.5(a)(2). A motion
to
reconsider
must
state
the
reasons
for
reconsideration;
be
supported
by
any
pertinent
decision
to
establish
that
the
decision
was
based
on
an
incorrect application of law
or
policy;
and
establish
that
the
decision
was
incorrect
based
on
the
evidence
in
the
record
at
the
time of
the
decision.
8
C.F.R.
§
103.5(a)(3).
One
of
the
requirements
petitioners
must
show
to
establish
eligibility for
SIJ
classification
is
that
they
were "under
21
years old" at the time
of
filing
of
their petition.
Section
101(a)(27)(J)(i) of
the
Act;
8
C.F.R.
§ 204.ll(b).
Evidence
of
age
can
be
in
the
form of a valid birth certificate, official
government-issued
identification,
or
other
document
that
in
USCIS' discretion
establishes
the
petitioner's
age.
8
C.F.R.
§ 204.ll(b).
II. ANALYSIS
A.
Relevant
Procedural
and
Factual
Background
We
herein
incorporate
the
relevant
facts
and
procedural
history
discussed
in
the
Director's
January
2021
decision
denying
the
SIJ
petition
and
our
decision
on
appeal.
We
highlight
or
add
the
below
facts
for
our
analysis
of
the
instant
motion.
The
record
contains
an
affidavit
by
the
Petitioner which
was
submitted
to
the
State
of New York Family
Court,
County I lduring
his
guardianship
proceedings.
In
the
May 2016 affidavit,
the
Petitioner
attests
to
the
following:
being
born
on
1998;
his
father
owning a furniture
store
in
Bangladesh;
his
father
being
involved
in
politics
since
2013;
being
harassed
and
assaulted
by
an
opposing
political
party
in
Bangladesh;
attending
school
until
June
2014;
his
father
arranging
his
travel
from
Bangladesh;
and
leaving
Bangladesh
in
June
2015.
He
explained
he
traveled
for 6
months
before
reaching
the
United
States
in
December
2015, traveling
through
12
countries.
In
response
to
the
Director's
notice
of intent
to
deny
(NOID),
the
Petitioner
submitted
an
affidavit
dated
July 2020
attesting
to
the
following:
an
agent arranged
for
his
travel
to
depart
Bangladesh
in
2015;
gave
him
a
passport
with a different
name
1
and
a 1992
date
of birth;
told
him
if
he
did
not
use
the
1992
date
of birth
he
would
be
treated
as
a minor
and
not
reach
the
United
States;
and
the
passport
evidencing
his
1992
date
of birth
was
taken
away
in
Columbia.
In
the
decision
denying
the
SIJ
petition,
the
Director
acknowledged
the
Petitioner
included
a
copy
of
his
birth certificate evidencing 1998,
as
his
date
of birth
but
explained
that
records
indicate
that
he
previously
used
I 1992,
as
his
date
of birth while traveling
outside
of
Bangladesh
in
2013
and
again
when
traveling
outside
of
Bangladesh
in
2015.
The
Director
also
noted
that
the
Petitioner's
birth certificate
was
registered
in
2003,
over
four
years
after
his
alleged
date
of birth.
The
Director
raised
discrepancies
in
the
record
with
respect
to
documents
submitted in
support
of
the
Petitioner's
age.
For
example,
the
Director
noted
that
the
record
included
a
document
by
the
principal of a
school
certifying
that
the
Petitioner
attended
his
school
from 2005
to
2013
but
in
the
2016 affidavit
submitted
with
his
guardianship
proceedings,
the
Petitioner
claimed
to
have
attended
school
until
June
2014.
The
Director
explained
that
the
supplemental
evidence
submitted in
support
of
the
Petitioner's
date
of
birth
were
dated
after
2013, which
was
when
he
used
his
alternate
date
of birth
and
were
either
created
after a NOi D
was
sent
to
the
Petitioner
or
report
his
date
of birth
as
recorded
in
official
records
without
including
copies
of
the
records.
While not specified in
the
Director's
decision,
we
include
as
an
example,
that
the
document
by
the
principal
is
in English
and
states,
"[a
a ]ccording
to
the
admission
register his
date
of
birth
is
1998." A
copy
of
the
admission
register
was
not submitted with
the
document.
In
our
decision
on
appeal,
we
explained
that
we
gave
significant evidentiary weight
to
U.S.
government
records,
which
were
based
on
the
Petitioner's fingerprint
records
and
indicated
he
used
the
1992 birthdate while traveling
outside
of
Bangladesh
in
2013
and
2015. While
we
acknowledged
the
late-registered
birth certificate,
documents
by
the
United Nations Children's
Fund
(UNICEF)
and
U.S.
Department
of
State
(DOS)
providing context
around
the
late
registration,
and
other
supplemental
evidence
in
the
form of affidavits
and
records
submitted
in
the
record
below,
we
explained
the
birth
certificate
was
given
diminished evidentiary weight
and
the
supplemental
documentation
provided,
which
also
had
evidentiary
issues,
were
not
sufficient
to
meet
the
preponderance
of
the
evidence
standard
to
establish
the
Petitioner
was
under
21
years
of
age
at
the
time
he
filed
his
SIJ
petition.
In
1
According
to
the
Petitioner,
his
last
name
was
misspelled by
one
letter.
2
the
instant
motion,
the
Petitioner
submits
a verification of
his
birth certificate via
the
Bangladesh
Online Birth Registration
System
2
and
a brief
asserting
our
decision
on
appeal
is
"arbitrary,
vague,
and
capricious,
and
a violation of petitioner's
procedural
due
process
rights."
3
The
Petitioner's brief
further
asserts
that
our
decision
was
"flawed"
because
we
"improperly contend"
that
the
Petitioner
has
not
met
his
burden
of proof
in
establishing
his
age.
B.
The
Petitioner
has
not
established
he
was
under
21
years
of
age
when
he
filed
his
SIJ
petition
The
issue
on
appeal
was
whether
the
Petitioner
established
he
was
21
years
at
the
age
of filing
his
SIJ
petition.
As
discussed
above,
it
is
the
Petitioner's
burden
to
demonstrate
his
eligibility by a
preponderance
of
the
evidence.
Matter
of
Chawathe,
25
l&N
Dec.
at
375-76.
According
to
the
Petitioner's birth certificate,
he
was
born
in
1998
and
his
birth
was
registered
in
2003.
According
to
an
article
by
UNICEF
submitted
by
the
Petitioner, births
were
not
required
to
be
registered
in
Bangladesh
prior
to
2006.
The
Director notified
the
Petitioner
that
additional
evidence
was
required
to
establish
his
age
because
government
records
contained
fingerprint
evidence
that
the
Petitioner
used
a
1992
date
of birth,
and
the
late-registered
birth certificate
did
not
overcome
this inconsistency with
respect
to
his
age.
In
order
to
establish
the
authenticity of
the
birth certificate,
the
Petitioner
submitted
a
copy
of
the
DOS's Reciprocity
Schedule
for
Bangladesh,
which
describes
the
requirements
for birth
certificates,
but
does
not
speak
to
the
authenticity of
late-registered
birth certificates.
The
Petitioner
also
submitted
school
records,
affidavits,
and
a vaccination
card.
USCIS
may
consider
affidavits
or
secondary
evidence
of
age
in
order
to
evaluate
whether
the
petitioner
has
met
the
petitioner's
burden
of proof
by
the
preponderance
of
the
evidence.
See
generally 6
USCIS
Policy Manual,
supra,
at
J.3
(explaining,
as
guidance,
acceptable
documentation
of
age
in
the
SIJ
context).
When
adjudicating a
benefit
request
under
the
preponderance
of
evidence
standard,
the
officer
examines
each
piece
of
evidence
for
relevance,
probative
value,
and
credibility,
both
individually
and
within
the
context of
the
totality of
the
evidence,
to
determine
whether
the
fact
to
be
proven
is
more
likely
than
not
or
probably
true.
See
generally 1
USCIS
Policy Manual,
supra,
at
E.6
(explaining,
as
guidance,
the
use
of
evidence
in
the
adjudications
process).
The
Director
weighed
the
relevant
evidence
and
explained
that
the
documents
provided
were
either
procured
after
the
NO
ID
was
issued
or
reference
an
official
record,
without providing
the
record.
The
Director
also
explained
that
the
document
by
the
principal
attesting
to
the
dates
the
Petitioner
attended
school
contradicted
the
Petitioner's 2016 affidavit.
The
Petitioner
did
not
cure
or
explain
the
issues
raised
by
the
Director
on
appeal
and
we
also
gave
the
supporting
documents
less
evidentiary weight
in
our
de
nova
analysis.
2
We
acknowledge
the
verification, which
we
noted
was
referenced
but
not
provided
in
the
underlying
record.
3
In
the
brief,
the
Petitioner's
counsel
asserts
that
the
law
requires
the
Petitioner
be
afforded
the
procedural
due
process
of
an
in-person
interview
relating
to
his
SIJ
petition.
Counsel
argues
that
the
Petitioner
has
been
grossly
prejudiced
because
he
has
been
deprived
of
the
opportunity
to
supplement
the
record
through
sworn
testimony.
However,
the
Petitioner
included
affidavits
in
the
record
and
had
an
opportunity
to
further
supplement
the
record
when
responding
to
the
two
NOIDs
issued
below,
when
filing
his
combined
motion
to
reopen
and
to
reconsider
with
the
Director,
on
appeal,
and
in
the
instant
combined
motion.
Further,
counsel
does
not
provide
any
legal
precedent
for
the
assertion
that
the
Petitioner
is
entitled
to
an
in-person
interview with
respect
to
his
SIJ
petition
and
the
regulations
do
not
require
an
interview.
See
8
C.F.R.
§ 103.2(b)(9) (providing
USCIS
may
require
any
applicant,
petitioner,
sponsor,
beneficiary,
or
individual filing a
benefit
request,
or
any
group
or
class
of
such
persons
submitting
requests,
to
appear
for
an
interview
and/or
biometric
collection)
(emphasis
added);
see
generally 6
USCIS
Policy
Manual
J.4(C)(1),
https://www.uscis.gov/policymanual
(explaining,
as
guidance,
that
USCIS
conducts
a full review of
the
petition
and
supporting
evidence
to
determine
whether
an
interview
may
be
warranted
and
has
discretion
to
interview
SIJ
petitioners).
3
In
the supporting brief, the Petitioner's counsel
asserts
our decision
on
appeal "failed to take into
account"
the
Petitioner's explanation
for
his late-registered birth certificate
and
"failed to explain" any
"rational or
reasoned
basis" for
why
we
"arbitrarily"
discounted
the
evidence
on
the
question
of
late
registration
of
his birth. Counsel
states
the
DOS
and
UNICEF documents discuss
the
birth registration
system
as
"manual"
and
that "accurate records were not maintained" in Bangladesh prior to 2006 but
simultaneously
asserts
this
does
not undermine
the
credibility
and
authenticity
of
the
birth certificate.
Counsel also
states
it
was
"arbitrary
and
highly
prejudicial"
and
"grossly improper,
highly
egregious,
and
an
unconscionable violation which deprives
the
[Petitioner]
of
fundamental fairness" for
us
to
dismiss the
appeal
on
"arbitrary grounds"
such
as
delayed registration, when
the
Petitioner
is
a minor
and
had
no
control over registration
of
his birth. Counsel's brief describes our reasoning
as
"wholly
improper, absurd,
and
irrational"
and
argues
that we
"simply
ignored" and "rejected" the DOS's
reciprocity schedule, which must
be
given significant weight,
"without
stating a specific rationale or
explanation for dismissing" the reciprocity schedule. The Petitioner's explanation for
why
his birth
certificate
was
filed late
was
acknowledged in the
appeal
decision. Also, we acknowledged
the
DOS's
reciprocity schedule, however,
it
did not cure or
add
probative value to the Petitioner's late-registered
birth certificate. Further, his petition
was
not denied solely
on
account
of
a late-registered birth
certificate, but
because
the
Petitioner did not meet his burden by a preponderance
of
the
evidence to
establish his
age.
As explained, our records
have
the Petitioner traveling in 2013
and
2015 using a
1992
date
of
birth. The Petitioner acknowledges using a passport
with
a 1992
date
of
birth that
was
authentic enough
for
him to travel through 12 countries.
He
attests to obtaining his passport through
a travel agent prior to leaving Bangladesh
and
that
he
traveled
for
6 months after leaving in 2015.
He
does
not explain how
he
was
able to travel in 2013
with
the
1992
date
of
birth
if
he
only obtained
the
passport to
escape
Bangladesh in 2015.
On
appeal, we found no
error
in
the Director's analysis that
the
birth certificate
and
supporting documentation did not carry enough probative value to overcome
government records.
Counsel's
brief
also argues that we
do
not
address
or mention the Petitioner's 2020 affidavit explaining
the
reasons
for
using
an
incorrect
date
of
birth. Counsel
states
we "utterly failed to consider the
significant fact that the [Petitioner] was the victim
of
human
trafficking"
and
"was exploited
by
the
agents
and
his
family
members in Bangladesh." Counsel
argues
our decision
is
a "legal absurdity"
relying
on
a
"highly
improper practice"
because
we
are
"prejudicing" the Petitioner by not considering
"the bad
acts
of
travel
agents
and
family
members who controlled
him
and
sent
him
to the [United
States]."
4
Counsel further
states
the Petitioner was
an
underaged minor
with
no
control over his
acts
and
did not
have
the
mens
rea to commit fraud. Counsel
asserts
the Petitioner's parents neglected
their responsibility when they did not register his birth, untimely obtained a birth certificate,
and
sent
him
on
a perilous journey
as
a minor. The Petitioner's affidavit
does
not explain his 2013 travel or
add
credible
and
probative facts surrounding his
date
of
birth, nor
does
it
provide context or
explanation around the supporting documents submitted. Further, the Petitioner's 2020 affidavit,
when
read
together
with
his 2016 affidavit, describe him hiding from
an
opposing political party
at
4
We
also
note
that
the
Petitioner
submitted
affidavits
by
family
members
attesting
to
his
1998
date
of birth. While
the
Director
gave
reduced
weight
to
their
statements
because
they
were
issued
after
the
NOID,
and
we
concluded
no
error
in
the Director's weighing
of
evidence on appeal,
we
note
that
counsel
asks
that
we
give
more
probative
value
to
the
family
affidavits
but
at
the
same
time
requests
that
we
acknowledge
that
the Petitioner's family
members
were
extortive
and
manipulated
records
so
the
Petitioner
could
travel
outside
of
Bangladesh.
We
also
add
that
the
affiants
do
not
provide
any
identification
corroborating
their
identities.
They
each
mention
a
national
identification
number,
but
do
not
provide
a
copy
of their
national
identity
card.
Because
the
Petitioner's
date
of birth
is
at
issue,
merely
stating,
for
example,
that
they
were
present
during
the
birth without
more
detail
does
not
lend
significant
probative
value
to
their
statements.
4
home
with
his
parents,
and
his
father
taking
steps
to
protect
him
by
sending
him
out
of
the
country.
The
Petitioner
stated
that
he
was
given
a
passport
with
an
alternate
spelling of
his
name
and
a
1992
date
of birth
and
was
told
to
use
the
1992
date
of birth
or
he
would
be
unable
to
travel
to
the
United
States.
Nowhere
in
the
record
does
the
Petitioner
describe
being
unwilling
to
leave
Bangladesh
or
alleges
being
trafficked
or
controlled
by
the
agents
or
his
family.
He
describes
being
provided
with
instructions
on
how
to
enter
the
United
States
without alerting
authorities.
Furthermore,
our
decision
on
appeal
makes
no
reference
to
fraud
or
the
Petitioner's intent.
As
is
evident
in
the
quoted
language
above,
the
Petitioner's
counsel
includes
unsupported
and
misleading
statements
in
the
brief.
We
do
not
consider
these
statements
as
evidence.
See,
e.g.,
Matter
of
J.J.
Rodriguez,
27
l&N
Dec.
762,
765-66
{BIA
2020)
(noting
that
statements
by
counsel
are
not
evidence
and
are
not
entitled
to
evidentiary weight); Matter
of
Mariscal-Hernandez,
28
l&N
Dec.
666,
673
{BIA
2022)
(stating
unsupported
assertions
and
speculation
have
no
evidentiary
value).
Counsel
then
argues
that
we
"utterly failed
to
analyze
or
adequately
discuss
the
credible
evidence
submitted
and
the
reasons
for rejecting it."
However,
counsel
does
not
explain
how
the
evidence
in
the
record
overcomes
the
evidentiary
issues
raised
by
the
Director
and
in
our
decision
on
appeal.
Rather,
counsel
attempts
to
shift
the
burden
of proof
to
the
agency
by
stating,
we
have
"not
offered
one
iota
of
evidence
to
contest
candid
and
forthright
explanations
rendering
the
dismissal
of
the
appeal
unfair, irrational, highly prejudicial,
and
arbitrary"
and
for
us
"to
burden
the
[Petitioner] with
such
requirements
is
highly arbitrary,
grossly
prejudicial,
and
contrary
to
the
letter
and
spirit of
the
1-360
Petition for
Special
Immigrant,
and
relief from
deportation
which
he
humbly
seeks."
However,
the
burden
of proof
is
on
the
Petitioner
to
establish
his
eligibility.
The
Director
explained
the
reasons
why
the
supporting
evidence
was
given
less
evidentiary weight
and
we
found
no
error in
the
Director's
analysis
on
appeal.
Neither
the
Director's
decision
nor
ours
on
appeal
rejected
any
evidence
provided.
5
The
Petitioner
has
not
presented
new
facts
or
other
documentary
evidence
establishing
his
eligibility
for
SIJ
classification. 8
C.F.R.
§ 103.5(a)(2).
Further,
the
Petitioner
has
not
cited
any
binding
precedent
decisions
or
other
legal
authority
establishing
that
our
prior
decision
incorrectly
applied
the
pertinent
law
or
agency
policy
and
has
not
established
that
our
prior
decision
was
incorrect
based
on
the
evidence
of
record
at
the
time
of
the
initial
decision,
as
required
under
8
C.F.R.
§
103.5(a)(3).
Therefore,
the
Petitioner
has
not
established
eligibility for
the
benefit
sought.
ORDER:
The
motion
to
reopen
is
dismissed.
FURTHER
ORDER:
The
motion
to
reconsider
is
dismissed.
5
On
motion,
the
Petitioner
notes
that
he
also
provided
his
vaccination
card
in
support
of
his
age
in
the
record
below.
However,
a
photocopy
of a vaccination
card
without
supporting
documentation,
i.e.,
explaining
what
authority
issued
it,
where
it
was
issued,
what
source
it
relied
upon
for its
contents,
lessens
its
probative
value.
We
therefore
do
not
conclude
that
we
erred
in
giving
this
evidence
reduced
evidentiary weight
in
our
decision
dismissing
the
appeal.
5
