8 FAM 304.2
DNa testing and citizenship
(CT:CITZ-26; 09-11-2019)
(Office of Origin: CA/PPT/S/A)
8 FAM 304.2-1 Introduction
(CT:CITZ-26; 09-11-2019)
a. This subchapter provides guidance to passport
agencies and centers and U.S. embassies and consulates abroad about citizenship
adjudication and the use of DNA testing to establish the requisite relationship
between the U.S. citizen putative or alleged parent and a child claiming
derivative U.S. citizenship. For procedural
information about DNA testing, see 7 FAH-1 H-944. For information regarding the requirement of a
biological relationship, see 8 FAM 301.4-1.
b. The requirement that there
be a biological relationship between the U.S. citizen parent and the
child is in accordance with section 1993
RS, section 201(g) of the Nationality Act of 1940, and section 301(g) INA (a
person born of parents). Assessing whether
a claimant has provided sufficient evidence to
establish a derivative claim to U.S. citizenship can usually be accomplished through review of documentary evidence provided
by the claimant. If doubt arises that the U.S.
citizen parent is biologically related to the child, you are expected to
investigate carefully (8 FAM
301.4-1(D)(1)).
c. Genetic testing is most commonly used to verify a
parent/child relationship in conjunction with a citizenship case or an
immigrant visa application, when other forms of credible evidence are insufficient.
However, because of the expense,
complexity, and logistical delays inherent in parentage testing, genetic
testing should be used only if other credible proof does not establish to your satisfaction that the relationship exists.
d. When genetic testing appears warranted see 8 FAM
301.4-1(D)(1) for illustrative circumstances
you, with concurrence of the supervisor,
may advise the applicant that genetic testing may establish the validity of the
relationship. Such testing is entirely voluntary, and all costs of testing and
related expenses must be borne by the applicant and typically be paid to the laboratory in advance.
The applicant must be cautioned that submitting to testing does not guarantee
the subsequent issuance of a U.S. passport, and that the results of DNA testing
may rather preclude issuance. Standard language for communicating with
applicants about DNA testing is available in the Passport Services Information
Request Letter (IRL). General guidance about the Bureau Consular Affairs (CA)
requirements for DNA parentage testing is available on the CA Internet page.
e. Who should be tested: If at all possible, the
child, mother, and father should all be tested. In the event of the death of
one or both parents, the American Association of Blood Banks (AABB) accredited
testing facility will provide specific guidance regarding the utility of
testing of other relatives.
|
NOTE:
Why test both parents? DNA relationship/parentage testing favors testing
the child and both the mother and father to ensure that the child is actually
the child of the two alleged parentsthat is, to rule out cousins, unrelated
children, etc. CA follows this practice even if the citizenship claim is
through the U.S. citizen parent. Including both
biological parents in any
DNA paternity test strengthens test results. Whenever possible, both biological parents should submit DNA samples as a participant. Testing
both parents DNA increases the likelihood of a conclusive result
for any DNA test, including DNA tests for paternity, siblings, grandparents,
etc.
|
8 FAM 304.2-2 Burden of Proof for
Establishing U.S. Citizenship AND DNA TESTING
(CT:CITZ-26; 09-11-2019)
a. Applicants for U.S. passports and Consular Reports
of the Birth Abroad of a Citizen of the United States have the burden of
proving by a preponderance of the evidence, also known as balance of
probabilities, their identity (22 CFR 51.23) and that they are citizens of the
United States (22 CFR 51.40). The standard is met if the proposition is more
likely to be true than not true. Effectively, the standard is satisfied if
there is greater than a 50 percent chance that the proposition is true. Nothing
contained in 22 CFR 51.42 through 51.46 shall prohibit the consular officer or
the passport specialist from requiring an applicant to submit additional
evidence deemed necessary to meet this standard to establish U.S. citizenship
or nationality. (See 22 CFR 51.45).
b. 8 U.S.C. 1409 (a)(1) (INA 309(a)(1)) provides that
for a person born abroad out of wedlock to a U.S. citizen father, a blood
relationship between the person and the father must
be established by clear and convincing evidence. This is an
intermediate level of burden of persuasion sometimes employed in U.S. civil
procedure. In order to prove a contention by
"clear and convincing evidence," the
party with the burden of proof must convince the trier (or finder) of fact that it is substantially
more likely than not that the thing is in fact true. This is a lesser standard than "proof beyond a reasonable
doubt" which requires that the trier of fact be close to certain of the
truth of the matter asserted, but a stricter requirement than proof by
"preponderance of the evidence," which merely requires that the
matter asserted seems more likely true than not.
c. DNA paternity/maternity testing reliability has
advanced to the industry-accepted standard of 99.5 percent. When the mother
and father of the child are tested, consular officers may only rely on test results reporting a 99.5 percent or
greater degree of certainty with respect to paternity/maternity in citizenship
cases. However, a test that supports paternity/maternity to a degree less than
99.5 percent generally can be followed by retests to determine if the 99.5
percent accuracy can be achieved.
|
NOTE:
It is also possible to reach 99.5 percent certainty or better on sibling tests, although it
is not possible to do it consistently enough for the testing to be conclusive.
|
d. In cases where an alleged mother or father are
deceased, missing, or unavailable to participate in genetic testing, both of
the paternal or maternal grandparents can be tested in order to determine the
likelihood of grandparentage. In a case where both grandparents are not
available to contribute samples, a Family Reconstruction Test must take place.
Reconstruction can include any known biological family members of the possible
father or possible mother, including their siblings. This type of DNA testing
is referred to as avuncular DNA analysis. Unlike a DNA paternity test which
will always provide a conclusive result, avuncular DNA tests are different. It is possible and quite probable that two genuinely
related people will not achieve a 99.5 percent result. It is not
possible to achieve a 99.5 percent result using avuncular
DNA analysis. However, CA will accept as probative DNA test results involving
siblings, grandparents, aunts and uncles, etc., for U.S. citizenship, if the
testing facility confirms that such test is able to produce meaningful results.
For example:
(1) The test lab
performs a Y chromosome test, which provides a 99.5 percent certainty or better
match for an uncle/nephew or grandfather/grandson, even though the DNA test as
a whole provides less than 99.5 percent certainty; or
(2) The test lab
performs tests of multiple purported relatives, which provides a combined 99.5
percent certainty or better match as noted by the lab, even though the
individual DNA tests provide less than 99.5 percent certainty.
|
NOTE:
This differs from the 9 FAM 601.11
policy guidance due to the differing burden of proof and evidentiary standard
in citizenship cases.
|