Use of Bone Age Testing by DOS and USCIS

 

Introduction

Many immigration visas and benefits depend on the applicant or beneficiary being under the age of 21.

In U.S. Department of State (DOS) cable 98-State-096341, reprinted in 75 No. 24 Interpreter Releases 883 (June 29, 1998), the DOS provided guidance to consular officers “as to whether they can use bone age testing to determine whether [visa] applicants are eligible for derivative status as children under the age of 21.” The DOS concluded that bone age testing was, at that time, “insufficiently proven or reliable to be the sole determinant of an applicant's eligibility for derivative status.” Although the cable was issued in 1998, the DOS has not issued contradictory guidance since.

In this article, we will examine the 1998 DOS cable on bone age testing and other related issues.

Summarizing the Cable

Multiple DOS consular posts requested guidance on whether they could use bone age testing to determine whether an applicant was eligible for derivative status as a child under the age of 21. The Cable notes that some consular posts had recommended the use of radiological bone age testing on the advice of panel physicians as a way to catch fraudulent claims by aliens over the age of 21 seeking derivative status as a child under 21. The Cable added that the DOS believed that some posts had employed radiological bone age testing for this purpose.

The DOS first sought guidance from the Centers for Disease Control and Prevention (CDC), which has the regulatory authority to make medical determinations for purposes of section 212(a)(1) of the Immigration and Nationality Act (INA) (medical grounds of inadmissibility). However, the CDC was not able to provide the DOS with guidance on radiological bone age testing because it did not involve a public health concern or issues of medical ineligibility for immigration benefits. DOS also found no guidance in the most extensive legal database at the time.

In one noteworthy passage, the DOS explained that it had consulted the then-Immigration and Naturalization Service (INS), which has since been supplanted by the immigration components of the Department of Homeland Security (DHS). Specifically, DOS submitted the issue to INS because the INS “would have to accept the tests if petitions [were] returned for revocations…” However, the DOS Cable states that “neither the [INS] General Counsel's office nor INS forensics examiners had any knowledge of the issue.” FBI forensics experts also stated that they had no knowledge of the issue.

The DOS did, however, obtain guidance from the Armed Forces Institution of Pathology and from a forensic anthropologist and research scientist with the Smithsonian Institution. These sources advised the DOS that “there is no general way to determine a person's chronological age by bone age testing, and there may be significant differences between an individual's chronological age and his/her bone age.”

The DOS added that the one bone-related factor that could determine whether an alien is older than 21 — the fusing of the clavicle bones — would be far more likely to be determinative in the case of males than females. Furthermore, differing growth rates in different populations would also call into question the validity of the results.

Due to the lack of available information at the time on the accuracy of radiological bone age testing and the lack of legal precedents on the issue, the DOS determined in the Cable “that this procedure is insufficiently reliable or proven to be the sole factor to use in determining whether an [immigrant visa] applicant is over the age of 21 and therefore ineligible for status.” However, the DOS did not foreclose the use of radiological bone age testing entirely, stating that consular posts may use it “as a fraud indicia or as one of several factors relating to chronological age in visa determinations.”

DOS Policy Unchanged at Least as of 2009

There is no indication that the DOS has changed its policies on bone age testing since 1998. In 2009, in response to questions from the American Immigration Lawyers Association (AILA), the DOS stated that its policy on bone age testing set forth in 1998 was still in place.1 The DOS restated that while bone age testing cannot be used as the sole determinant of an applicant's age, it may be considered along with other factors. The DOS stated that its current position was that consular officers could request bone age testing even in cases where there is no indication of fraud.

USCIS Consideration of Bone Age Testing As Evidence that Individual is Under a Certain Age

Although there is almost no formal guidance on the issue of radiological bone scans, the 2018 edition of Immigration Law & Family suggests that bone scans have been successfully used in some cases as evidence in support of a petitioner for special immigrant juvenile classification [see category] being under the age of 21.2 Specifically, the chapter states that some immigration lawyers have turned to the submission of radiological bone scans as evidence of their clients' ages “[w]here there is absolutely no possibility of obtaining a birth record or other more traditional proof of the juvenile's birth…” However, the chapter notes the 1998 DOS cable and the fact that INS had, at the time, denied any knowledge about the reliability of bone scans.

Although the USCIS has not issued formal guidance, the Nebraska Service Center (NSC) did briefly address the issue in response to a question from the AILA on October 25, 2007.3 AILA requested guidance on whether bone scans could be submitted as evidence of age for refugee applicants whose ages were improperly represented on their Form I-94s. The NSC responded by stating that adjudicating officers rely upon the date listed on the refugee applicant's Form I-590, Registration for Classification as Refugee. However, the NSC stated that “if the applicant takes the initiative and submits a bone scan as a way of verifying his/her own age, USCIS may accept the evidence depending on the reliability of the evidence i.e. scientific validity and certification/quality of the scanner.”

In short, it appears that the USCIS is willing to consider bone scans as evidence submitted in support of an individual claim to being under a certain age. However, whether the USCIS accepts the evidence and the weight that the USCIS gives it will likely depend on the totality of the facts and circumstances in a given case. Furthermore, the NSC answer to AILA's question in 2007 strongly suggests that the USCIS will consider the circumstances of the bone scan, including the qualifications of the person(s) who administered the scan and interpreted the results, in considering whether to accept it as evidence of the individual's age.

Conclusion

There does not appear to be any conclusive published guidance on the reliability of radiological bone scans for immigration purposes subsequent to the 1998 DOS cable. However, as we noted, it appears that the USCIS is willing to consider bone scans as evidence that an individual is under a specific age under certain circumstances. With regard to using bone scans as a means of fraud detection, the DOS policy appears to remain that the results may support a case of fraud, but that they cannot make the case by themselves. It is unclear whether the USCIS uses bone scans as a means of fraud detection or to what extent they may consider such evidence, although it is worth noting that the NSC's language in 2007 appears to adopt a similarly cautious posture with regard to bone age testing, as did the 1998 DOS cable.

When dealing with the DOS or USCIS in any immigration matter, an individual is strongly advised to consult with an experienced immigration attorney. In circumstances where there are questions as to the individual's age, an experienced immigration attorney may provide expert case-specific guidance.

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  1. “AILA Liaison/DOS Meeting Minutes (10/22/09).” Published on AILA InfoNet at AILA Doc. No. 10020230
  2. § 14:86.Application procedure and evidence, Immigration Law & Family § 14:86 (2018 ed.). Available on Westlaw at https://www.westlaw.com/Document/I1b43814ddddd11d99e88bfe37081ce3d/View/FullText.html?transitionType­Default&contextData=(sc.Default)&VR=3.0&RS­cblt1.0
  3. “AILA Liaison/NSC Q & As on Refugee/Asylee Issues (10/25/07).” Published on AILA InfoNet at AILA Doc. No. 07102976