4. The Fee for Filing an Application

Some commenters requested that the Department provide a reduced fee level for families filing two or more applications for adjustment of status under the HRIFA program.

The fees charged under the HRIFA program are the same as those charged all other adjustment applicants and (on an individual case basis) the regulations already allow persons who are unable to pay the specified fees to request a waiver of the filing fee. Upon consideration of all factors, it was determined that it was not appropriate to provide a reduced fee level for HRIFA applicants in general.

5. Documentation in General

A number of commenters made suggestions regarding the documentation required for proof of eligibility and the manner and timeframe in which that documentation is to be submitted. Some commenters suggested that the regulations should not require submission of proof of unavailability of primary evidence ( e.g., a birth certificate) before accepting secondary evidence ( e.g., a baptismal record or a consistent prior claim). Conversely, other commenters suggested that the standard should call for the submission of the “best evidence available.” In considering applications and petitions for benefits under the Act, the Department’s policy has generally been that the applicant should submit, and the adjudication should be based on, the best evidence available. In determining whether a particular type of evidence is generally available from foreign countries, the Department is guided by the information contained in Volume 9, Part IV, Appendix C of the Department of State’s Foreign Affairs Manual (FAM), which reports that birth certificates, marriage records, divorce records, death certificates, and adoption certificates are all generally available from Haiti. This is not to say, as it could be said about any country in the world, that in an individual case, a particular record may not have become lost or destroyed, or be otherwise unavailable. For this reason, the Department requires an applicant to submit proof of the unavailability of primary documentation from Haiti before considering secondary evidence. In short, the only way of knowing that secondary evidence is the “best evidence available,” and is therefore acceptable documentation, is to first establish that the primary evidence is unavailable. However, with regard to applications for adjustment of status under HRIFA, there is a very significant factor that complicates the application of the “best evidence available” standard: the March 31, 2000, HRIFA deadline for the filing of applications by principal applicants. Because of this deadline, the Department has determined that it is best to temper this standard so as to allow applicants to file for adjustment of status u sing secondary evidence as long as they also submit evidence that they have requested the primary evidence from an official recordkeeper ( e.g., the Haitian National Archives). This approach will avoid the risk of persons being unable to apply for adjustment under HRIFA, while at the same time ensuring the integrity of the documentation. In instances in which the primary documentation arrives prior to the applicant’s interview with an immigration officer or hearing before an immigration judge, the applicant would present the primary documentation at such interview or hearing. Where the documentation does not arrive prior to the interview or hearing , the interviewing officer or presiding judge would make a determination whether to make a decision based on the evidence available or to continue the case until the primary documentation arrives.

Some commenters were under the mistaken impression that the regulations, see, e.g. 8 CFR 245.15(i), always require that a Form I-94 be submitted as proof of entry. If the alien is in possession of the Form I-94, he or she should submit it, but if the alien never received or lost the Form I-94, it cannot be submitted. Where it is crucial that the applicant establish the date of arrival, as with children who arrived without parents, secondary documents may be submitted (such as transportation company records or an affidavit) in lieu of a missing or nonexistent Form I-94. The regulations ha ve been amended to clarify this point. However, the applicant is still required to meet the requirements set forth in 8 CFR 245.15(i) pertaining to documenting when the applicant’s physical presence in the United States began.

Some commenters suggested that the Department allow applicants to submit a list of documents already known to be in their Service files. While the regulations already contain this provision, the relevant provision in 8 CFR 245.15(m) has been revised to eliminate possible confusion on this issue.

6. Documenting Haitian Nationality

A number of commenters felt that it was not reasonable for the Department to require applicants under HRIFA to submit evidence of nationality. Many felt that any “evidence” of nationality already contained in the alien’s file (including the applicant’s prior claims of Haitian nationality) should be more than sufficient to prove that the applicant is Haitian. Additionally, some commenters stated that it is unreasonable to require the applicant to submit evidence of the unavailability of a document before the Service or Immigration Court will accept secondary evidence in lieu of that document. Finally, some commenters expressed concerns that children born in Guantanamo Bay of Haitian parents would be unable to document either Haitian or Cuban nationality.

It is important to note that the submission of evidence of nationality with the application for adjustment is a standard requirement for all applicants for adjustment and not a special requirement placed upon applicants under HRIFA. Likewise, it is standard practice to require evidence of the unavailability of a document of record before considering secondary evidence. (As previously stated, the Department of State’s FAM reports that such documents are generally available in Haiti.) Furthermore, files that were created upon an alien’s arrest or submission of an application for benefits may contain no documentary evidence of nationality, but may refer to the alien’s (perhaps self-serving) statement of nationality. Despite some commenters’ contention to the contrary, while rare, it is not unheard of for a non-Haitian alien to falsely claim to be Haitian when it is to his or her advantage. Accordingly, every prior claim to Haitian nationality cannot automatically be presumed to be valid.

However, even considering all of these factors, the Department is willing to concede that, in light of the relatively short filing period provided in the statute, it will be difficult-if not impossible-for many bona fide applicants to obtain the normally required documentation in time to file an application for adjustment before the March 31, 2000, deadline. Accordingly, the Department is making a number of changes to the regulation that it believes will significantly alleviate, if not eliminate, this probl em.

First, as previously stated, the regulations will now allow an applicant to file the application without the birth record being included in the application package, if the applicant presents evidence that he or she is attempting to obtain the birth record. Once the birth record has been received, such applicant would present it at his or her interview before a Service officer or hearing before an immigration judge.

Second, the regulations will allow the Service or Immigration Court to consider secondary evidence of nationality, if the applicant submits evidence that he or she has unsuccessfully attempted to obtain the standard documentation. Such an unsuccessful attempt to obtain the standard documentation may be shown by submitting a photocopy of a letter from the applicant to the keeper of records requesting the document in question. If the primary evidence is received prior to the interview or hearing, the applican t can present it at that time; otherwise, the adjudicating officer or judge may make a determination based on the secondary evidence. The secondary evidence which may be taken into consideration could include baptismal and other religious records, passports, and evidence or statements already contained in the alien’s Service file. However, it must also be noted that all determinations as to the weight and credibility to be given to the secondary evidence rest with the adjudicating officer or judge.

With regard to those children born in Guantanamo Bay, there are at least three methods by which an applicant could document his or her birth. First, the United States Naval authorities issued a certificate of live birth to the parents of each child born on that naval base. Second, the records of the Service would reflect the place of birth as being at Guantanamo Bay. Third, the records of the voluntary agency that assisted in the family's resettlement would also show that the applicant was born at the U.S. Naval Base at Guantanamo Bay. Any of these records could be used in support of an application for adjustment under HRIFA.

7. Documenting Presence in the United States on December 31, 1995

Some commenters contend that the statutory requirement contained in section 902(b)(1) that limits the benefits of HRIFA to nationals of Haiti who were “present in the United States on December 31, 1995,” also applies to those who had been present in the United States at some time before that date but had left and were not here on that specific date. This contention is based on the commenters' interpretation of the requirement in section 902(b)(2) of HRIFA that the applicant must have been physically present in the United States for a continuous period beginning not later than December 31, 1995, but allows for absences of up to 180 days in the aggregate during that period. The commenters interpret the phrase “beginning not later than December 31, 1995,” as applying not only to the period of continuous presence, but also to the absences. This would have been a logical interpretation if section 902(b)(1) of HRIFA had allowed applicants to have been present “on or before December 31, 1995,” but it does not. The o nly way to read both sections in concert is that persons who departed prior to December 31, 1995, and were not physically present on that date are ineligible for benefits under HRIFA as principal applicants.

8.Documenting Presence in the United States Since December 31, 1995

Many commenters were concerned that the rough guideline for documenting continuity of presence (one document for each 90-day period) would be impossible for many bona fide applicants to meet due to cultural norms unique to Haitians. Others contended that due to other factors unique to Haitians, such as political, financial and geographical constraints, it is unlikely that any Haitians departed from the United States and returned since December 31, 1995, and that even a rough guideline of one document for ea ch 90 days is excessive. A few commenters argued that the Department should provide a more generous guideline of one document for each 180 days, since the statute allows applicants to have been outside the United States for up to 180 days without breaking continuity of presence.

Because the statute allows an applicant to be outside the United States for up to 180 days in the aggregate without breaking continuity of presence, not absences of up to 180 days each, the Department finds that the argument that the guideline should be set at 180 days is without merit. However, the Department has determined that the guideline that had been intended to ease the burden on applicants by assisting them in gauging how much documentation to submit has instead become a hindrance that may result in some applicants believing that, without a certain minimum amount of documentation, they are ineligible to apply for or receive the benefit of adjustment of status under HRIFA. Accordingly, the guideline is being removed from the regulations and applicants should simply submit sufficient documentation to satisfy the adjudicating officer or immigration judge that they have maintained continuous presence in the United States within the meaning of the statute. The adjudicating officer or immigration judge retains the right to request additional documentation should the evidence submitted by the applicant prove insufficient to meet his or her burden of proof.

9. Definition of the Term “Parole”

Several commenters suggested that all Haitians released from Service custody before December 31, 1995, including those released on bond or on their own recognizance pursuant to section 242(a)(1) of the Act, 8 U.S.C. 1252(a), as it was in effect at that time, should qualify as “parolees” under HRIFA. In support of this suggestion, these commenters cited an April 19, 1999, Service policy memorandum. That memorandum concerned the eligibility of certain Cuban nationals for adjustment of status under the Cuban A djustment Act, despite their having arrived at a place other than a designated port-of-entry. It has no impact on the eligibility of a person seeking to adjust status under HRIFA as a Haitian national who was paroled in the United States prior to December 31, 1995. The April 19, 1999, memorandum provided in pertinent part that the “release of an applicant for admission from custody [pursuant to section 236 of the Act ], without resolution of his or her admissibility, is a parole.”(emphasis added.) The release from custody of someone other than an applicant for admission ( e.g., an overstay) does not constitute a parole. In the HRIFA context, an alien who had entered the United States without inspection, was detained by the Service, and was later released prior to December 31, 1995, cannot be seen as having been paroled into the United States because the alien was not an applicant for admission at the time of his or her release. The treatment of aliens present without inspection as applicants for admission was introduced to the immigration laws as a result of the enactment of the Ille gal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) in September 1996. These statutory reforms applied prospectively only. See IIRIRA section 309(c)(1). Accordingly, this suggestion will not be adopted.

10. Issues Pertaining to Applications Submitted by Children

A number of commenters felt that the Department’s interpretation of “child without parents in the United States” was too restrictive and undercut the legislative intent. Others mistakenly believed that the Department adopted this position in order to combat possible fraud. In fact, the Department had simply taken the common meaning of the phrase since no definition was provided by the statute. According to the commenters, the focus should be on whether there has been a sustainable parent-child relationship between the child and his or her parents in the United States. In other words, who has or has had parental control over the child since his or her arrival into the United States? The Department agrees that this interpretation better reflects the legislative intent behind the provisions concerning children without parents. Therefore, the regulations have been amended by placing commas before and after the phrase “without parents” in 8 CFR 245.15(b)(1)(iii)(A).

A number of commenters felt that the regulations unnecessarily and onerously require children to show proof of their manner of arrival. Some commenters were under the mistaken impression that the regulations required that a Form I-94 be submitted in all cases. Where an applicant must establish his or her date of arrival, as with children who arrived without parents, the Form I-94 should be submitted whenever possible. However, as explained earlier, if the Form I-94 is not available, secondary documents may be submitted instead. In the case of a child arriving without parents, the secondary evidence may include the child’s declaration which may be supported by other documentation ( e.g., his or her attendance record at school shortly after the claimed date of arrival). The regulations have been amended to clarify this point.

A number of commenters made suggestions regarding the documentation and level of proof required to prove eligibility as an orphaned or abandoned child. Some commenters suggested that an applicant’s declaration of orphanage should be sufficient proof of orphanage or abandonment. Several commenters wanted secondary evidence to be accepted as proof of orphanage or death of parents ( e.g., declarations, news articles, and publications). Other commenters suggested that the Department should allow any probative evidence which might be submitted to state, local, or other authority to establish orphanage or abandonment. The Department agrees that, where primary evidence ( e.g., official state or court documents) is unavailable, secondary evidence may be submitted to prove orphanage. Accordingly, the regulations have been modified to reflect many of these suggestions.

A number of commenters felt that a broader and more general definition of orphan should be used. Some commenters wanted to include as an orphan a child who has been irrevocably released by his or her sole or surviving parent who is unable to provide support. This is particularly relevant with regard to Haitian children who have had one of their parents disappear due to the actions of the former government of Haiti or due to tragedy at sea. The Department agrees and has so amended the regulation at § 245.15( a). The regulation now allows an otherwise eligible child to qualify for to qualify for classification as an orphan under section 902(b)(1)(C)(ii) of HRIFA if (1) the child has lost one parent through death or through disappearance, (2) competent Haitian authorities have certified that parent to be presumed dead, (3)the sole remaining parent is incapable of providing the proper care, and (4) the sole remaining parent has, in writing, irrevocably released the child for immigration to the United States. Howev er, this amended regulation pertains only to applications filed under HRIFA and has no bearing on applications or petitions filed under the Act, such as petitions for classification under section 101(b)(1)(F) of the Act, where the surviving parent provision only pertains if the other parent

is deceased.

One commenter believed that HRIFA should not be read as limiting orphans to those who lost their parents while under 21 years old. While, by common definition, the term “orphan” only applies to a child, and not to an adult, who has lost his or her parents, section 902(b)(1)(C) of HRIFA includes a unique set of qualifications on applicants seeking status based on orphanage. Those qualifications provide that the applicant must have been unmarried and under 21 years old at the time of his or her arrival in the United States and on December 31, 1995, and that he or she “became orphaned subsequent to arrival in the United States.” Because it is possible for someone who became 21 years old after December 31, 1995, and was later orphaned to still meet the language of the statute, the regulations will be amended in this regard. However, this amended regulation pertains only to applications filed under HRIFA and has no bearing on applications or petitions filed under the Act.

Many commenters felt that the provision for abandoned children should be guided by the best interest of the child. A number of commenters wanted the Department to accept a broader array of evidence, besides official state, local, or court records, to prove the issue of abandonment. These suggestions include school records and declarations by the child (or Service records) indicating nonresidence or nonrelationship with the parents. One commenter suggested that if a child has been left by his or her parents with a relative, that should be sufficient to constitute abandonment along with notarized statements stating such. Other commenters wanted to allow any probative evidence which might be submitted to state, local, or other authority to establish abandonment. Several commenters suggested that runaway children should be considered abandoned, especially where the child ran way due to the home environment. A number of commenters urged the Department to adopt the standard of abandonment as defined by the law in F lorida, where, if the parent or guardian of a child “makes no provision for the child’s support and makes no effort to communicate with the child, * * * [the] situation is [deemed] sufficient to evince a willful rejection of parental obligations.” F.S. 1997, Sec. 39.01. Other commenters suggested that the guidelines for abandonment established by the individual state having jurisdiction over the child should be adopted. The Department agrees that a broader category of evidence to prove abandonment should be allowed. Accordingly, the Department will apply the laws governing abandonment established by the individual state where the child resides, or resided at the time of the abandonment. The regulations have been amended to reflect this change.

A number of commenters wanted the Department to allow a dependent (of a HRIFA principal) to qualify for HRIFA benefits if he or she was a child on the date of HRIFA’s enactment (October 21, 1998), or, alternatively, to toll the child’s age as of October 21, 1998, until the date when his or her adjustment application is adjudicated. The Department will not accommodate this request. The Department has consistently held that an applicant must be eligible for the benefit being sought at the time of adjudication of the application, not on some prior date. See, Matter of Hernandez-Puente, 20 I & N Dec. 335, 337 (BIA 1991) (citing cases). The Department reaffirms this interpretation that benefits such as adjustment cannot be granted nunc pro tunc, which is essentially what the commenters have suggested.