Jill v. Blinken

• Decision Date: 30 January 2023
• Docket Number: 4:22-cv-00077-JAR
• Parties: JILL and ADAM TROWER Plaintiffs, v. ANTHONY BLINKEN, et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

JILL and ADAM TROWER Plaintiffs,
v.
ANTHONY BLINKEN, et al., Defendants.

No. 4:22-cv-00077-JAR

United States District Court, E.D. Missouri, Eastern Division

January 30, 2023

MEMORANDUM AND ORDER

JOHN A. ROSS UNITED STATES DISTRICT JUDGE

This matter is before the Court on the parties' cross motions for summary judgment in this case involving an international adoption. (Docs. 45, 48). Plaintiffs are the prospective adoptive parents, Jill and Adam Trower. Defendants are Anthony Blinken as Secretary of the U.S. Department of State, Alejandro Mayorkas as Secretary of the U.S. Department of Homeland Security, Ur Mendoza Jaddou as Director of U.S. Citizen and Immigration Services (USCIS), Carol Cox as Consular Section Chief of the U.S. Embassy in the Democratic Republic of Congo (DRC), and the United States of America. For the following reasons, Plaintiffs' motion will be granted, and Defendants' motion will be denied.

BACKGROUND

Overview

In April 2018, Baby M.S. was allegedly found abandoned near a trash heap in Kinshasa and was subsequently placed at the Ma Famille Orphanage. That summer, Plaintiffs began the process to adopt him, and by October 2018 they had filed an I-600A Application for Advance Processing of Orphan Petition stating their intent to adopt from the DRC. USCIS swiftly approved the application, thus enabling Plaintiffs to proceed with the adoption and file an I-600

1

Petition to Classify Orphan as an Immediate Relative. Among the documents necessary for approval, Plaintiffs were required to submit, as pertinent here:

Evidence of adoption abroad .. in accordance with the laws of the foreign-sending country [in the form of]:

A legible, certified copy of the adoption decree, if the orphan has been the subject of a full and final adoption abroad

8 C.F.R. § 204.3(d)(1)(iv)(A).

Plaintiffs were also required to submit evidence that the child was in fact an orphan (e.g., evidence that the child was abandoned or deserted, parents' death certificates, or parents' irrevocable releases). 8 C.F.R. § 204.3(d)(1)(iii). In countries where State Department officials have reason to doubt the reliability of local court orders, USCIS may require additional evidence of abandonment. (Doc. 46-2 at p. 23).

While Plaintiffs navigated U.S. visa requirements, they concurrently pursued the adoption of M.S. in the DRC. On April 4, 2019, a juvenile court in Kinshasa approved the adoption, making Plaintiffs the legal parents of M.S. This decision was not appealed, and a certificate of non-appeal was issued May 24, 2019. With this evidence of a final adoption abroad in hand, Plaintiffs then filed their I-600 petition on May 29, 2019. However, in July 2020, the U.S. Embassy in Kinshasa recommended that USCIS deny the petition because DRC law prohibited international adoptions and the judgment was likely procured by fraud, as evidenced by several discrepancies in the local documentation. Accordingly, on January 21, 2021, USCIS issued a notice of its intent to deny the petition because (1) the adoption was not granted in accordance with the laws of the foreign-sending country and (2) the evidence of abandonment was not credible. Only the first reason is before the Court on the present motions.

2

The Road to Limbo

In 2016, the DRC enacted legislation amending its family code to suspend all international adoptions pending the creation of a public agency to oversee the process.^[1] Various exhibits in the record reflect that the DRC instituted this change and ceased issuing exit permits due to concerns of child trafficking and systemic corruption. DRC Law No. 16/008 of July 15, 2016, states in pertinent part:

Article 923 bis^[2]

While waiting for the implementation measures provided for [in] Article 691 bis and the creation of the public body responsible for adoptions provided for in Article 652 of this Law, the examination of new cases of international adoption of Congolese children is suspended.^[3]

Articles 652 and 691 bis, referenced in Article 923 bis, charge the Prime Minister to create the agency and procedures governing international adoptions.^[4] Six years later, no such body has been established. For a time, local juvenile courts continued to approve international adoptions despite these amendments. Article 674 gives the DRC Public Ministry standing to

3

challenge an adoption within three months of the judgment (Doc. 49-7 at p. 2), but the record lacks any indication whether the Ministry has ever appealed a judgment on the basis of Article 923 bis.

Defendants likewise continued to approve adoptions from the DRC for a time.

According to State Department annual reports, from October 2016 to September 2020, the Department issued a total of twenty IR-3 visas for children adopted from the DRC. (Doc. 49-11).

IR-3 visas are “only issued.. .where an I-600.. .has been approved by USCIS” Id. In April 2017, however, the Department “strongly recommend[ed] against initiating adoption in the DRC.”^[5] In May 2019, just as Plaintiffs filed their I-600 petition, the Department urged USCIS to stop approving petitions until the DRC lifted its suspension on exit permits. (Doc. 46-9 at p. 89).

In late 2019 and early 2020, the Department asked DRC authorities to clarify the status of international adoptions. (Doc. 19-1 at pp. 164-171). Referring to nine particular cases involving American adoptive parents (Doc. 46-1), including Plaintiffs (Doc. 19-1 at p. 151), the DRC Ministry of Justice responded that, although these adoption judgments violated Article 923 bis, they were nonetheless binding and enforceable judgments because they had not been appealed.^[6](Doc. 19-1 at pp. 169, 171). At the same time, the Ministry indicated that these children would not be granted exit permits and therefore recommended that the Department suspend visa

4

processing until the public agency contemplated by Article 923 bis could be created to regularize decisions made during the suspension. Id.

In July 2020, the U.S. Embassy in Kinshasa recommended that USCIS “place no weight on the validity of DRC adoption judgments issued after July 15, 2016.” (Doc. 19-2 at p. 5-12). According to the State Department's 2020 report, only one adoption was approved during that fiscal year, and the Department...