23.8 Section 289 Cases.

(a) General .

An American Indian born in Canada, with at least 50% American Indian blood, cannot be denied admission to the U.S., and is entitled to evidence of lawful permanent resident status. If the applicant is not seeking admission at a port of entry but is already in the U.S., he or she must also establish that he or she has resided in this country since his or her last entry. The relating regulations are set forth in 8 CFR 289 . The applicant bears the burden of proof in establishing eligibility. Usually, this is accomplished by presenting identification such as a tribal certification that is based on reliable tribal records, birth certificates, and other documents establishing the requisite percentage of Indian blood. The Canadian Certificate of Indian Status (Form IA-1395) issued by the Canadian Department of Indian Affairs in Ottawa specifies the tribal affiliation but does not indicate percentage of Indian blood. Membership i n an Indian tribe in Canada does not necessarily require Indian blood. Once the claim to 50% Indian blood has been established, the applicant is entitled to creation of a record of admission for lawful permanent residence, even if technically inadmissible or previously deported. As with presumption of lawful admission cases under 8 CFR 101.1 or 8 CFR 101.3, USCIS is not adjudicating an application to become a lawful permanent resident, USCIS is verifying a status which the person already has and issuing documentation thereof.

Note

If records show that the applicant has already been accorded creation of a record of admission for lawful permanent residence and issued a Permanent Resident Card (Form I-551), advise him or her that he or she must file Form I-90, Application to Replace Alien Registration Receipt Card, and pay the fee required by 8 CFR 103.7(b). (See Chapter 51 of this field manual regarding processing of such applications.)

(b) Creation of Record of Admission for Lawful Permanent Residence .

If a Canadian native claims to be at least 50% North American Indian by blood, has resided in the U.S. since his or her last entry, and seeks evidence of lawful permanent resident status, complete the following steps to document his or her status:

(1) An applicant is not required to file any application or pay any fee as part of this process.

(2) Review documentation submitted to support the claim, including birth records, tribal records, proof of residence since last entry, etc. Officers at locations which frequently encounter Indian tribal members should familiarize themselves with tribal documentation common to the area. Make photocopies of all documentation. Depending upon the facts and documentation presented, a sworn statement may also be required.

(3) Complete a central index check and open an "A" file in accordance with local procedures.

(4) If the documentation is acceptable and no adverse information develops from the central index query which disproves the applicant’s claim, complete Form I-181, Memorandum of Creation of Record of Admission for Lawful Permanent Residence. The words "Canadian-born American Indian admitted for permanent residence" must be endorsed on the I-181. Under the box marked "Other Law" indicate section 289 of the Act.

(5) Complete Form I-89, Data Collection Card, including fingerprint, proper photograph, and other required data. The admission classification is S13 . Forward the completed I-89 and a copy of the I-181 for USCIS updating and card issuance, in the manner prescribed for immigrant visas. See Appendix 15-8 of the Inspector’s Field Manual .

(6) If the alien is 14 years of age or older, take a complete set of fingerprints on Form FD-258, in compliance with section 264 of the Act. These fingerprints need not be forwarded for clearance to the FBI, but should be retained in the file.

(7) Issue a temporary I-551 to facilitate travel until the actual I-551 is produced.

(8) Include copies of all supporting materials in the file, placing the I-181 on top. Forward the “A” file to the National Records Center in Lee’s Summit, Mo. for storage.

(c) Denied Applications .

In any instance where status as a lawful permanent resident based on claimed American Indian status is denied, either because documentation is lacking, the applicant’s claim to being an Indian is determined to be false, or because the claimant does not possess the requisite percentum of American Indian blood, an “A” file should be created. Place a memorandum in the file indicating that the application has been denied and the reasons therefore. Verbally advise the applicant of the decision. There is no appea l from the decision, although the claimant may renew his or her request if and when he or she is able to overcome the basis of the decision. Depending on the circumstances, such an applicant may be referred to the Investigations Branch for consideration of initiation of removal proceedings.