Recently, the 9th Circuit Court of Appeals (which is one court below the US Supreme Court) ruled that the BIA’s “blanket rule against recognizing states’ nunc pro tunc adoption decrees brackets [is] an unreasonable and impermissible construction of” the law.
One of the requirements to petition an adopted child is that the adoption must take place before the child’s 16th birthday. The Board of immigration Appeals (BIA) has always interpreted this law to mean that there must be a final adoption decree before the child’s 16th birthday. Therefore, even if the adoptive parents started the adoption before the child’s 16th birthday, if the final decree was issued after the child’s 16th birthday, they were out of luck.
Some state courts were willing to make the “effective date” of the adoption to be before the child’s 16th birthday, even though the final decree occurred after the child’s 16th birthday. This is what we call a “nunc pro tunc” (or “legally backdated”) court order. However, the BIA had a “blanket” policy, where it refused to recognize such nunc pro tunc orders, and would not give retroactive effect to such state court adoption decrees.
Recently, the 9th Circuit Court of Appeals (which is one court below the US Supreme Court) ruled that the BIA’s “blanket rule against recognizing states’ nunc pro tunc adoption decrees brackets [is] an unreasonable and impermissible construction of” the law.
In that particular case, the child entered the US as a visitor when she was 15 years old. Her aunt, a US citizen, initiated adoption proceedings before the child’s 16th birthday. However, the final adoption decree was issued after her 16th birthday. The adoptive mother (the aunt) then petitioned her, but the case was denied, because the adoption was final after her 16th birthday. The adoptive mother then went back to the state court that issued the adoption decree and obtained an order modifying the adoption decree “nunc pro tunc,” which provided an earlier “effective date” of the adoption decree of 4 days before the child’s 16th birthday. In other words, even though the adoption decree was issued after the child’s 16th birthday, the state court made the effective date of the final decree to be before the child’s 16th birthday. Both the USCIS and the BIA refused to recognize the state court’s order regarding the effective date of the adoption decree.
In its ruling, the Ninth Circuit pointed out that adoptions are governed by states, not the federal government. Therefore, the federal government “must afford due deference to state law.” In other words, if adoptions are governed by state law, and if the state courts are willing to give retroactive effect to adoption decrees, then the federal government has to respect and follow those state laws. If the USCIS was suspicious that some adoptions could be fraudulent, or “adoptions of convenience,” it could evaluate them on a case by case basis, vs. presuming ALL nunc pro tunc adoptions to be fraudulent.
I know that there have been many cases where adoptive parents have raised the child since birth. They file for adoption before the child’s 16th birthday, but the final decree was not issued until after the child’s 16th birthday. This new case could provide hope for the family, depending on the circumstances, and if they can obtain a proper nunc pro tunc order, making the effective date of the final decree to before the child’s 16th birthday.
However, before running to state court, or initiating adoption proceedings, you should seek the advice of a reputable attorney, who could evaluate your situation, and see if your case could possibly qualify. When it comes to adoption, there are several requirements, all of which must be met and proven. In addition, let us hope that the USCIS does not appeal this decision to the US Supreme Court. Instead, as the Ninth Circuit pointed out, there is supposed to be a federal policy of “keeping families together.” This new case would help do that.
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Michael J. Gurfinkel is licensed, and an active member of the State Bar of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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