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 parents—that 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.