DOS Cable on Bone Age Testing in IV Processing
FM SECSTATE WASHDC
TO ALL IMMIGRANT VISA PROCESSING POSTS
Unclas State 096341
E.O. 12958: N/A
TAGS: CVIS
Subject: Use of Bone Age Testing in IV Processing
Ref: (A) 97 Islamabad 9752, (B) Guangzhou 1323
1. Summary. Reftel posts have requested guidance as to whether they can use bone age testing to determine whether applicants are eligible for derivative status as children under the age of 21. After extensive research, VO believes that this method at this time is insufficiently proven or reliable to be the sole determinant of an applicant’s eligibility for derivative status. End summary.
2. Reftel posts have, on the suggestion of local panel physicians, recommended the use of radiological bone age testing as a means to catch fraudulent claims to derivative IV status by aliens who may be over the age of 21 and therefore ineligible for such status. VO believes that other posts are using or have used such methods in the past.
3. Since the CDC supervises panel physicians, and has regulatory authority to make medical determination for 212(a)(1) purposes, VO first turned to the CDC. The CDC was not able to provide us with guidance on this issue, as it does not involve an issue of public health concern or a medical ineligibility.
4. VO notes that this issue is as much a legal as a medical issue. While it has come up so in derivative IV cases where post has final authority over the visa application, it will likely come up in the context of petition cases (as in F22 cases), and therefore the bone age evidence will have to pass administrative and possibly judicial review. VO therefore researched the legal database for case law on the acceptability of this evidence in court proceedings. A search of both Lexus/Nexis (the most extensive legal database) and the Internet revealed no substantial case law or legal articles relating to this issue.
5. VO consulted the INS, which would have to accept the tests if petitions are returned for revocations, but neither the General Counsel’s office nor INS forensics examiners had any knowledge of this issue. VO then consulted with forensics experts in the FBI, but again was unable to find anyone with sufficient expertise to advise us on this issue.
6. VO was able to set some guidance from the Armed Forces Institution of Pathology (AFIP) and a forensic anthropologist and research scientist for the Smithsonian Institution, who acts as an expert witness for the Department of Justice in litigation cases. According to both sources, 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. There are some bones which generally fuse at certain ages, however, and assumption could be made that a person may be over that age if these bones are fused.
7. The one bone related factor which could determine whether the alien is over 21 was the fusing of the clavicle bones. The U.S. experts noted that this would generally be determinative of whether American males were older than 21. It would be less useful for females, who develop at an earlier age. Growth rates vary significantly in different populations, however, and in order to determine the reliability of the test, studies would have to be done on the development rates of the specific ethnic group involved in visa processing at post. Moreover, there are individual variations in development rates, such as heredity, diet, and disease, which would make it possible that an individual could have matured at an earlier time than normal within the general population.
8. Given the paucity of information related to this technique, the lack of any legal precedent indicating the acceptability of this evidence in court proceedings, and the caveats relating to the reliability of this proceeding expressed by the Smithsonian experts, VO believes that this procedure is insufficiently reliable or proven to be the sole factor to use in determining that an IV applicant is over the age of 21 and therefore ineligible for status. Post may use this evidence, however, as a fraud indicia or as one of several factors relating to chronological age in visa determinations.
Strobe Talbott