A lawful permanent resident (LPR) or US Citizen (USC) parent may file an immigrant petition for his alien child including an adopted child. Under INA 101(b)(1)(E)(i), a child adopted while under the age of 16 years and who has been in the legal custody and has resided with the adopting parent for at least 2 years may qualify for immigration benefits.
What if the adoption process started when the child was under 16 but the court issued the adoption decree after the child turned 16 due to unforeseen delays? Later, what if the court issues another order modifying the adoption decree and setting an effective date for the adoption decree that was before the child turned 16? Would USCIS recognize this adoption decree and grant immigration benefits to this child? This was the issue in the recent case of Amponsah v. Holder, No. 11-71311, slip op. (9th Cir. March 22, 2013).
In Amponsah, the adoption process started when the petitioner was under 16 but the Washington Superior Court issued the decree after she turned 16. A year later, the Superior Court modified the adoption decree and made it effective 4 days prior to the petitioner’s 16th birthday. Petitioner’s mother then filed an I-130 petition for her but USCIS denied it and initiated removal proceedings against petitioner. The Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) denied relief to the petitioner. The BIA found that she was not adopted before the age of 16.
The BIA based its decision on its blanket rule against recognizing nunc pro tunc (“now for then”) adoption orders such as the one the Washington Superior Court issued amending the effective date of petitioner’s adoption decree. The Ninth Circuit had to decide whether a child must be under 16 on (1) the date the adoption is effective; or (2) the date the adoption process is concluded.
The Ninth Circuit held that the BIA’s blanket rule against recognizing nunc pro tunc adoption orders is an impermissible interpretation of INA 101(b)(1)(E)(i). Instead, nunc pro tunc adoption orders must be considered on a case-by-case basis. The Ninth Circuit cited the following reasons for its decision.
First, adoption creates a legal status that’s defined by state law. There’s no federal law on domestic relations. Hence, in interpreting the meaning of “adopted” under INA 101(b)(1)(E)(i), federal agencies must defer to state law. In Amponsah, Washington State Law deemed the adoption effective prior to the petitioner’s 16th birthday. USCIS should have recognized this order which was valid under state law. Second, federal policy recognizes the validity of state court judgments. The BIA’s blanket rule contradicts this federal policy.
Third, the BIA’s blanket rule was an attempt to strike a balance between the need to keep families together and to discourage fraudulent adoptions. The Ninth Circuit found that, instead of addressing the possibility of fraud on an individual basis, the BIA’s blanket rule lumps all nunc pro tunc adoption orders together and presumes them as invalid without regard for meritorious orders. The BIA’s blanket rule refuses to acknowledge nunc pro tunc orders even when the adoption papers were filed on time but the proceedings were delayed due to circumstances beyond the parents’ control such as agency delays in processing a child’s background check. The Ninth Circuit concluded that the possibility that some nunc pro tunc adoption orders may involve fraud does not justify the BIA’s blanket rule because federal agencies are capable of uncovering fraud.
It’s tempting to see this Ninth Circuit decision as a new blanket rule that recognizes all nunc pro tunc orders regardless of the circumstances. However, the Ninth Circuit explained that if the evidence shows that an adoption decree’s effective date does not represent the legitimate date of the adoption, federal agencies need not recognize it.
What then might be a legitimate purpose for revising an adoption decree’s effective date? May an adopting parent, for example, ask a state court to issue a nunc pro tunc order to revise the effective date of an adoption decree for the sole purpose of making the adoption valid for immigration purposes? Judging from the Ninth Circuit’s rationale in Amponsah, it would seem like revising an adoption decree’s effective date to qualify for immigration benefits might not be a legitimate reason because the Ninth Circuit’s decision was made in the context of delays in adoption proceedings that are beyond the control of the parents. However, for those who have valid reasons for amending the effective date of an adoption decree, the Ninth Circuit’s decision should give new hope to immigrant children and their families.
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Charles Medina practices immigration law. Visit his website at medinalawgroup.net for more details. This article provides general information only and does not provide legal advice on any specific matter or predict the outcome of any legal matter. It does not invite or create an attorney-client relationship.
