678 F.2d 123 (10th Cir. 1982), 80-2072, Mila v. District Director of Denver, Colorado Dist. of Immigration and Naturalization Service, United States Dept. of Justice

Docket Nº80-2072.
Citation678 F.2d 123
Party NameFinau F. MILA and Anau S. Fainga, Plaintiffs-Appellees, v. DISTRICT DIRECTOR OF the DENVER, COLORADO DISTRICT OF the IMMIGRATION AND NATURALIZATION SERVICE, UNITED STATES DEPARTMENT OF JUSTICE, Defendant-Appellant.
Case DateApril 19, 1982
CourtUnited States Courts of Appeals, United States Court of Appeals (10th Circuit)

Page 123

678 F.2d 123 (10th Cir. 1982)

Finau F. MILA and Anau S. Fainga, Plaintiffs-Appellees,

v.

DISTRICT DIRECTOR OF the DENVER, COLORADO DISTRICT OF the

IMMIGRATION AND NATURALIZATION SERVICE, UNITED

STATES DEPARTMENT OF JUSTICE, Defendant-Appellant.

No. 80-2072.

United States Court of Appeals, Tenth Circuit

April 19, 1982

Rehearing Denied June 2, 1982.

Page 124

Jimmy Gurule, Washington, D. C. (James P. Morris, Crim. Div., Dept. of Justice, Washington, D. C., with him on the briefs), Attys., for defendant-appellant.

Charles B. Casper of Fabian & Clendenin, Salt Lake City, Utah, for plaintiffs-appellees.

Terry J. Helbush, San Francisco, Cal., filed an amicus curiae brief for the Immigration and Nationality Lawyers Association.

Before SETH, Chief Judge, and McKAY and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

The government appeals from the district court's judgment that the Immigration and Naturalization Service (INS) incorrectly denied Anau S. Fainga preferential status as the sister of Finau F. Mila, a naturalized United States citizen, in qualifying for a permanent visa. See 8 U.S.C. § 1153(a)(5). Fainga, a native of the Kingdom of Tonga, was adopted by her mother's sister (Mila's mother) shortly after birth. Because Tongan law provides only for legal adoptions of children born illegitimately and Fainga was born legitimately, the adoption was according to Tongan custom. The INS interpreted the statute that defines "adopted children" as excluding Tongan children adopted by custom. The district court disagreed with the INS interpretation. The controlling issue on appeal is whether the district court gave too little deference to the INS interpretation.

To guide the INS in determining the order in which aliens subject to numerical quotas may become lawful permanent residents of the United States, Congress has set forth a system of priorities under which brothers and sisters of United States citizens are entitled to preferential treatment. See 8 U.S.C. § 1153(a) (5). To establish a brother-sister relationship, petitioner and the beneficiary of the preference must show they are "children" of a common parent as defined at 8 U.S.C. § 1101(b)(1). Matter of Clahar, 16 I & N Dec. 484, 485 (BIA 1978).

Page 125

Adopted children must meet the requirements of 8 U.S.C. § 1101(b)(1) (E):

"(E) a child adopted while under the age of fourteen years if the child has thereafter been in the legal custody of, and has resided with, the adopting parent or parents for at least two years ...."

Petitioner has the burden of establishing that the purported adoption accords with the law of the country where it took place. Matter of Garcia-Rodriguez, 16 I & N Dec. 438, 439 (BIA 1978).

The INS district director does not dispute that Fainga was adopted by custom, but denied Mila's petition because Fainga's adoption was not a legal one. The Board of Immigration Appeals affirmed the district director's decision and dismissed Mila's appeal. On review the district court reversed and remanded, directing that Fainga be given preferential status because Tongan custom recognizes Fainga as the bona fide adopted daughter of Mila's mother. The district court held the INS requirement of legal adoption was unduly restrictive and misinterpreted congressional intent, declaring that so long as a bona fide parent-child relationship exists, the INS has no reason to distinguish between a country that provides for adoption by law and one that provides for adoption by custom.

A federal court may reverse an INS denial of a preferential visa petition only if the INS abused its discretion. The INS abuses its discretion if it bases its decision upon an improper understanding of the law. Kaliski v. District Director of Immigration and Naturalization Service, 620 F.2d 214, 216 n.1 (9th Cir. 1980). The Supreme Court has recognized that the construction of a statute by those charged with its administration is entitled to substantial deference. See, e.g., United States v. Rutherford, 442 U.S. 544, 553, 99 S.Ct. 2470, 2475, 61 L.Ed.2d 68 (1979). If reasonable and not contrary to the discernible intent of Congress, the agency's interpretation should be approved even though it is not the only reasonable interpretation or the one the reviewing court would make if deciding the issue in the first instance. See Unemployment Compensation Comm'n v. Aragon, 329 U.S. 143, 153-54, 67 S.Ct. 245, 250, 91 L.Ed. 136 (1946); Nazareno v. Attorney General, 512 F.2d 936, 939-40 (D.C.Cir.1975).

The INS interprets 8 U.S.C. § 1101(b)(1)(E) as requiring an adoption to accord with the laws of the country where it allegedly occurred. Matter of Garcia-Rodriguez, 16 I & N Dec. 438, 439 (BIA 1978). If that country has a legal procedure for adoption, the INS insists that the petitioner prove the adoption met those requirements. See Matter of Kong, 15 I & N Dec. 224 (BIA 1975); Matter of Kwik, 13 I & N Dec. 89 (BIA 1968). If the country has no formal adoption system, the INS recognizes customary adoption, but only if that country's courts accept customary adoption as legally valid. The INS has recognized China's customary adoptions because China's legal system treats customarily adopted children as having rights equal in all respects to natural children. See Matter of Kwok, 14 I & N Dec. 127, 128-29 (BIA 1972). But if the country does not legally acknowledge customary adoption, the INS, at least since 1961, has refused to find an adoption valid for immigration purposes. Matter of B, 9 I & N Dec. 521 (BIA 1961); accord, Matter of Palelei, 16 I & N Dec....

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12 practice notes
  • 837 F.2d 847 (9th Cir. 1988), 86-7540, Dohmen-Ramirez v. Commodity Futures Trading Com'n
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • 20 Enero 1988
    ...at 1339. This is because the ALJ has the opportunity to observe the witnesses' demeanors. Weinberger, 819 F.2d at 1339; Photo-Sonics, 678 F.2d at 123. STANDARD OF REVIEW BY CFTC OF ALJ'S An agency board must evaluate whether substantial evidence, looking at the record as a whole, supports t......
  • 719 F.Supp. 532 (N.D.Tex. 1989), Civ. A. CA3-89-0020, Chi-Feng Chang v. Thornburgh
    • United States
    • Federal Cases United States District Courts 5th Circuit United States District Courts. 5th Circuit. Northern District of Texas
    • 29 Junio 1989
    ...is thus limited to determining from the administrative record whether the INS abused its discretion. Mila v. District Director of Denver, 678 F.2d 123, 125 (10th Cir.1982), cert. denied, 459 U.S. 1104, 103 S.Ct. 726, 74 L.Ed.2d 952 (1983); Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.......
  • 345 F.3d 683 (9th Cir. 2003), 01-16391, Spencer Enterprises, Inc. v. U.S.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • 17 Septiembre 2003
    ...authority to make preference classification decisions rests with the INS."); Mila v. Dist. Director of Denver, Colorado Dist. of INS, 678 F.2d 123, 125 (10th Cir. 1982), cert. denied, 459 U.S. 1104, 103 S.Ct. 726, 74 L.Ed.2d 952 (1983) ("A federal court may reverse an INS denial o......
  • 722 F.2d 893 (1st Cir. 1983), 83-1135, North American Industries, Inc. v. Feldman
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (1st Circuit)
    • 5 Diciembre 1983
    ...upon an improper understanding of the law or if there is no evidence to support the decision. See, Mila v. District Director of Denver, 678 F.2d 123, 125 (10th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 726, 74 L.Ed.2d 952 (1983); Kaliski v. District Director of INS, 620 F.2d 214, 21......
  • Request a trial to view additional results
12 cases
  • 837 F.2d 847 (9th Cir. 1988), 86-7540, Dohmen-Ramirez v. Commodity Futures Trading Com'n
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • 20 Enero 1988
    ...at 1339. This is because the ALJ has the opportunity to observe the witnesses' demeanors. Weinberger, 819 F.2d at 1339; Photo-Sonics, 678 F.2d at 123. STANDARD OF REVIEW BY CFTC OF ALJ'S An agency board must evaluate whether substantial evidence, looking at the record as a whole, supports t......
  • 719 F.Supp. 532 (N.D.Tex. 1989), Civ. A. CA3-89-0020, Chi-Feng Chang v. Thornburgh
    • United States
    • Federal Cases United States District Courts 5th Circuit United States District Courts. 5th Circuit. Northern District of Texas
    • 29 Junio 1989
    ...is thus limited to determining from the administrative record whether the INS abused its discretion. Mila v. District Director of Denver, 678 F.2d 123, 125 (10th Cir.1982), cert. denied, 459 U.S. 1104, 103 S.Ct. 726, 74 L.Ed.2d 952 (1983); Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.......
  • 345 F.3d 683 (9th Cir. 2003), 01-16391, Spencer Enterprises, Inc. v. U.S.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • 17 Septiembre 2003
    ...authority to make preference classification decisions rests with the INS."); Mila v. Dist. Director of Denver, Colorado Dist. of INS, 678 F.2d 123, 125 (10th Cir. 1982), cert. denied, 459 U.S. 1104, 103 S.Ct. 726, 74 L.Ed.2d 952 (1983) ("A federal court may reverse an INS denial o......
  • 722 F.2d 893 (1st Cir. 1983), 83-1135, North American Industries, Inc. v. Feldman
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (1st Circuit)
    • 5 Diciembre 1983
    ...upon an improper understanding of the law or if there is no evidence to support the decision. See, Mila v. District Director of Denver, 678 F.2d 123, 125 (10th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 726, 74 L.Ed.2d 952 (1983); Kaliski v. District Director of INS, 620 F.2d 214, 21......
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