Kaho v. Ilchert

• Decision Date: 10 July 1985
• Docket Number: No. 83-2534,83-2534
• Citation: 765 F.2d 877
• Parties: Kuli Haapai KAHO, Valeti Kaho and Tupou Kaho, Plaintiffs-Appellees, v. David N. ILCHERT, District Director, Immigration and Naturalization Service, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 877

765 F.2d 877

Kuli Haapai KAHO, Valeti Kaho and Tupou Kaho, Plaintiffs-Appellees, v. David N. ILCHERT, District Director, Immigration and Naturalization Service, Defendant-Appellant.

No. 83-2534.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 8, 1985.

Decided July 10, 1985.

Terry J. Helbush, Simmons & Ungar, Lawrence N. DiCostanzo, on brief, San Francisco, Cal., for plaintiffs-appellees.

Larry J. Gallagher, San Francisco, Cal., for defendant-appellant.

Appeal from the United States District Court for the Northern District of California.

Before HALL and WIGGINS, Circuit Judges, and SMITH ^*, District Judge.

WIGGINS, Circuit Judge:

David N. Ilchert, San Francisco District Director for the Immigration and Naturalization Service, (Ilchert), appeals from the district court's decision granting summary

judgment in favor of Kuli Haapai Kaho and his adopted daughters and remanding the case to the Immigration and Naturalization Service (INS) for a determination whether there was a bona fide customary adoption of Valeti and Tupuo Kaho by Kuli Haapai Kaho. We must decide whether the district court erred in conducting a de novo review on the validity of customary adoptions under Tongan law and whether customary adoptions are valid under Tongan law. We affirm.

FACTS

On October 19, 1980, Kuli Haapai Kaho (Kaho), a lawful permanent resident of the United States, filed two petitions for immigrant visa preference status under 8 U.S.C. Sec. 1154 on behalf of Valeti Kaho and Tupuo Kaho. ¹ Kaho claimed that he adopted Valeti and Tupuo under the customary laws of Tonga ² and therefore, they were eligible for second preference immigrant visas under 8 U.S.C. Sec. 1153(a)(2). ³ When the petitions were filed, Valeti was 22 and Tupuo was 16.

Valeti and Tupuo were born in Tonga in 1958 and 1963, respectively, as the legitimate offspring of their natural parents. When Valeti was 7 years old and Tupuo 3 years old, their natural mother died. Following the mother's instructions, their natural father entrusted Valeti and Tupuo to the care of Kuli Haapao Kaho, a cousin of their natural mother.

On November 3, 1981, Ilchert denied Kaho's petitions for preference classifications for Valeti and Tupuo. Ilchert concluded that customary adoptions were not legally recognized in Tonga and therefore, as a matter of law, the adoptions of Valeti and Tupuo could not be recognized as valid adoptions under 8 U.S.C. Sec. 1101(b)(1)(E). Relying on its previous decisions in Matter of Fakalata, 18 I. & N. Dec. 213 (BIA 1982), and Matter of Palelei, 16 I. & N.Dec. 716 (BIA 1979), the Board of Immigration Appeals (BIA) affirmed Ilchert's decision.

On November 29, 1982, Kuli, Valeti and Tupuo Kaho (the Kahos) filed the present action in district court seeking declaratory and injunctive relief. Specifically, they sought: (1) a declaration that the denial of their applications for visa petitions was unlawful because it was based on misconstructions of the pertinent sections of the Immigration and Nationality Act (the Act) and Tongan law, and (2) an injunction requiring the INS to grant their visa applications.

The parties filed cross-motions for summary judgment. On May 6, 1983, the district court entered its order disposing of the summary judgment motion.

Deferring to the INS's interpretation of 8 U.S.C. Sec. 1101(b)(1)(E), the district court concluded that this section requires more than a showing of a parent and child relationship. The district court held that section 1101(b)(1)(E) requires that an adoption be legally recognized under the law of the country where the adoption took place.

In reviewing whether customary adoptions are legally recognized under the law of the Kingdom of Tonga, the district court did not defer to the INS's interpretation of Tongan law. The district court reviewed the issue de novo.

In light of the evidence introduced in the district court proceedings, the court concluded that customary adoptions were recognized under Tongan law. Accordingly, the district court remanded the matter to the INS with respect to Tupuo to determine whether there had been a bona fide customary adoption by Kaho and to grant the petition upon a finding of a bona fide adoption. Because Valeti was 22 years old when the petition was filed, the district court believed that she did not qualify as a "child" under the Act. Therefore, with respect to Valeti, the district court granted partial summary judgment in favor of Ilchert.

The Kahos moved the district court to alter the judgment on the ground that it misapplied the law as to Valeti's eligibility to qualify for a visa petition. The Kahos correctly asserted that Valeti was not barred from qualifying for a preference visa under section 1153(a)(2) merely because she was over 21 years of age when the petition was filed. ⁴

The district court granted the Kahos' motion to alter the judgment and remanded the matter to the INS with respect to Valeti as well. Final judgment was entered on September 6, 1983.

DISCUSSION

I. JURISDICTION

A. Appealability of District Court's Remand Order

A threshold question is whether the district court's judgment remanding the matter to the INS for further proceedings is a final appealable order under 28 U.S.C. Sec. 1291.

In Stone v. Heckler, 722 F.2d 464 (9th Cir.1983), we ruled on the finality of a district court order remanding the case to the administrative agency, wherein the district court had conclusively determined a "separable legal issue." Specifically, the district court in Stone held that the Secretary of Health and Human Services had applied an incorrect legal standard. The district court, therefore, remanded the case to the Secretary for application of the correct standard. The Secretary appealed, challenging the district court's determination that she applied an incorrect standard in her administrative decision.

In deciding whether the district court's remand order was final, we noted that 28 U.S.C. Sec. 1291 was to be given a practical construction. Id. at 467. We proceeded to weigh "the inconvenience and costs of piecemeal review" against "the danger of denying justice by delay." Id. (quoting Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732 (1974) ).

We recognized that if the district court's decision were wrong, it "would result in a totally wasted proceeding below, from which the Secretary may not be able to appeal." Id. Judicial economy and fairness would both be promoted by resolving the legal issue on appeal. In light of these considerations, we concluded that the remand order was appealable under section 1291. Id. at 468.

Applying the analysis in Stone to the present case, we are convinced that the district court's remand order should be deemed a final appealable order. Two separable legal issues are presented. Moreover, if the district court erred in concluding that customary adoptions are legally recognized in Tonga, further administrative proceedings would be a waste. Furthermore, as in Stone, the administrative agency involved in this case might not be able to secure judicial review of the issues presented in this appeal unless review is granted now. Appellate jurisdiction under section 1291 is therefore proper. See Lau v. Kiley, 563 F.2d 543 (without discussing jurisdictional question, court ruled on merits of appeal from district court remand order to BIA).

II. MERITS

A. District Court Review

The central issue before the district court was whether the INS abused its discretion in denying Kaho's petitions for preference visas. The INS abuses its discretion if its decision is not supported by the evidence or if it is based on an improper understanding of the law. Kaliski v. District Director, 620 F.2d at 216 n. 1. In order to determine whether the INS abused its discretion, the district court had to resolve two legal issues: (1) the proper interpretation of section 1101(b)(1)(E) and (2) the validity of customary adoptions under the law of Tonga.

Before us, Ilchert contends that the district court failed to give proper deference to the INS's interpretation of section 1101(b)(1)(E) and to its interpretation of foreign law. We disagree.

In ruling upon Kaho's challenge to the INS's interpretation of section 1101(b)(1)(E), the record demonstrates that the district court properly deferred to the INS's interpretation of that section. The district court agreed with Ilchert that to satisfy the requirements of section 1101(b)(1)(E), the adoption must be legally recognized under the law of the country where the adoption took place.

With respect to the question of the validity of customary adoptions under Tongan law, the district court did not defer to the INS's conclusion; instead, the district court reviewed this issue de novo. We reject Ilchert's contention that the district court erred in so doing.

Fed.R.Civ.P. 44.1 governs a district court's determination of foreign law. Rule 44.1 provides:

A party who intends to raise an issue concerning the law of a foreign country shall give notice in his pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court's determination shall be treated as a ruling on a question of law.

The provisions of Rule 44.1 indicate that a deferential standard of review on a question of foreign law is inappropriate. Under Rule 44.1, a district court may consider material that was not before an agency. Where the district court considers material that was not before the agency, as occurred in this case, deferrence to the agency's interpretation on the question of foreign law is misplaced.

Furthermore, the INS is not charged with administering "foreign law." It also does not have any greater expertise on questions of foreign law than does the district court--or this...