We received a new unpublished decision from the Board today that demonstrates an unwritten exception to a very clear rule.

The General Rule: No New Evidence on Appeal

Generally, the BIA is limited to reviewing only the evidence, testimony, and applications that were presented to either the USCIS or the IJ before the appeal.  See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988).  That usually means, if you didn’t file it or ask for it before, you can’t file or ask for it before the Board.

But You Should Still Try, Especially in Visa Appeals

In the context of visa appeals, though, the BIA has generally been open to giving applicants a second shot.

That is especially true in the context of DNA evidence.

We have appealed or moved to reopen 3 or 4 denied visas in the last year where the denial was only for failure to prove a sibling relationship because of a late-issued birth certificate.  At the same time, the USCIS rarely requests DNA evidence, and some consulates will not process DNA evidence without a formal request from the USCIS.

As the decision we received today demonstrates, the BIA is not completely insensitive to this issue.  In our brief, we asked for an opportunity to submit DNA evidence.

Rather than deny the appeal for failure to submit this evidence at the time, the BIA has thankfully given our client an opportunity to submit DNA evidence.

The consulate will accept the BIA’s decision as the necessary request, and I have no doubt this I-130 (which has been pending over 4 years now) will eventually be approved.