Nwankwere v. UR M. Jaddou
| Docket Number | 1:22-cv-01212-SKO |
| Decision Date | 07 September 2023 |
| Parties | THERESA NWANKWERE, Plaintiff, v. UR M. JADDOU, Director, United States Citizenship & Immigration Services, Defendant. |
| Court | U.S. District Court — Eastern District of California |
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, AND GRANTING DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT (DOCS. 20, 21)
Plaintiff Theresa Nwankwere brings this action challenging the denial of a Petition to Classify Orphan as an Immediate Relative U.S. Citizenship and Immigration Services (USCIS) Form I-600 (the “Form I-600” or the “Petition”) filed by Plaintiff and her husband on behalf of D.A.C., a child they adopted abroad.[1] (See Doc. 1.) Pending before the Court are Plaintiff's motion for summary judgment and Defendant's cross motion for summary judgment. (Docs. 20 21.) Plaintiff filed an opposition to Defendant's motion on June 1, 2023, and Defendant filed a reply brief on June 22, 2023. (See Docs. 23, 27.) The Court deemed the matters suitable for decision without oral argument pursuant to Local Rule 230(g) and vacated the hearing set for July 27 2023. (Doc. 28.)
For the reasons set forth below, the Court denies Plaintiff's motion for summary judgment, and grants Defendant's cross motion for summary judgment.[2]
Plaintiff is a United States citizen residing in Coracan, California, with her husband. (Administrative Record (“AR”) 31, 120, 251, 287, 317.) In February 2018, Plaintiff and her husband wrote to the Director of the Ministry of Gender Affairs and Social Development, Owerri, Imo State, Nigeria[3] (“the Ministry”) expressing their intent to apply for adoption of a baby through the Ministry. (AR 31.)
On June 6, 2019, the Family Court Unit, Magistrate Court, Owerri Imo State (“the Family Court”) issued an order finding that D.A.C., a female child from Love Care Child Centre, an orphanage in Owerri (“Love Care” or “the Orphanage”), should be placed under Plaintiff's and her husband's foster and care “for all good intents and purposes” (“the Foster Order”). (AR 278-79.) The Family Court also directed a Child Development Officer to carry out an investigation to assist the Court in assessing the couple's suitability for an adoption order. (Id.)
On October 9, 2019, upon evaluating Plaintiff's application and the report made by the Child Development Officer and the Ministry, the Family Court issued an adoption order (“the Adoption Order”). (AR 280.) The Court ordered as follows: the child will be placed for adoption by Plaintiff and her husband; the child shall be known as D.A.C.; the adopters reserved the right to travel with the adoptee to their place of residence in the United States; and the period of three months of consecutive fostering was waived “because of the inconvenience this will cause to the child.” (AR 280-81; see also AR 248-52.)
On January 7, 2020, Plaintiff filed a Form I-600 with USCIS seeking to classify D.A.C. as her immediate relative. (AR 1, 119-32.) The form indicated D.A.C. was an orphan because she had only one sole or surviving parent who was incapable of providing proper care and who irrevocably released the child for emigration and adoption in writing. (AR 123.) The form also listed the date of adoption as October 9, 2019, the date of the Adoption Order. (AR 124.)
On February 11, 2020, USCIS issued its first Request for Evidence (“RFE”), seeking evidence of the following information: (1) irrevocable consent of the sole or surviving parent to release the orphan for emigration and adoption as required by 8 C.F.R. § 204.3(d)(1)(C); (2) that D.A.C. met the definition of an “orphan” as set forth in Section 101(b)(1)(F)(i) of the Immigration and Naturalization Act (“INA”); (3) abandonment by both parents; and (4) that Plaintiff and her husband were present at court at the time of adoption, so there was no proxy adoption. (AR 235-37.) USCIS forwarded Plaintiff's case to the U.S. Consulate in Lagos, Nigeria, for the mandatory I-604 Determination on Child for Adoption.[4] (See AR 55, 134.) Plaintiff timely submitted evidence in response to the first RFE. (See AR 238-63.)
Following an investigation, the U.S. Consulate in Lagos issued a memorandum stating it was unable to conclude that D.A.C.'s claimed origins were legitimate. (AR 67-74.) The memorandum concluded as follows:
Consulate General Lagos is now returning the I-604 as not clearly approvable on the basis that there is no credible evidence that this child is an orphan as defined by under INA § 101(b)(1)(F). The involvement of [the Director of Love Care, Chief Mrs. Lauretta A. Madu (“the Director”)], who has fabricated the origins of an orphan to facilitate international adoption in the past, casts serious doubts onto the legitimacy of this child's origin. Furthermore, inconsistencies contained within the documentation, including differing explanations of whether the child was abandoned or relinquished, and when the [prospective adoptive parents (“PAPs”)] were actually in Nigeria, and consistently poor record keeping at both the Ministry and this orphanage further call into question the credibility of this child's purported orphanhood. These concerns, coupled with the serious child trafficking and baby-racketeering problems in Imo state, as admitted by Ministry officials, means that Consulate General Lagos cannot accept the purported origins of the child as genuine and is returning the I-604s as Not Clearly Approvable.
(AR 70.)
On June 7, 2021, USCIS issued its second RFE. (AR 134-40.) The RFE contained a summary of the U.S. Consulate's I-604 report, and specifically, that the U.S. Consulate returned Plaintiff's petition because “they found, among other things, serious inconsistencies and discrepancies in the submitted evidence such that it found no credible evidence supports petitioners' claim [that] the child is an orphan by reason of abandonment or under any other subdefinition of INA [§] 101(b)(1)(F).” (AR 136.) The RFE listed the following inconsistencies: (1) Plaintiff and her husband had provided evidence that the child was relinquished at birth by a named biological mother, but a letter from the Ministry indicated the child was born to an unknown birth mother; (2) a document from the Nigeria Police Force recorded the birth mother's relinquishing affidavit as dated on May 8, 2019, whereas the affidavit from the birth mother, Ngozi Obijuru, was dated May 7, 2019; (3) a letter from the Director and the post-adoption birth certificate indicated that the child was lifted from the Orphanage by Plaintiff and her husband on May 22, 2019, but this date is two weeks before the issuance of the Foster Order; (4) Plaintiff's travel itinerary and passport stamps show that she was not in Nigeria on May 22, 2019, and she arrived no earlier than May 30, 2019; and (5) another letter from the Director showed that Love Care, and not the Ministry, placed the child with Plaintiff and her husband. (AR 136.)
To overcome these issues, USCIS requested that Plaintiff submit (1) the child's birth certificate containing the names of the biological mother and father, or if that is not available, “an explanation together with secondary evidence for proof of identity, birth parent(s), and age, as required by 8 CFR 204.3(d)(1)(ii);” (2) evidence of orphanhood as defined by Section 101(b)(1)(F)(i) of the INA; and (3) evidence of a “full and final adoption” completed pursuant to the laws of Nigeria as required by 8 C.F.R. § 204.3(d)(1)(C)(iv). (AR 136-39.)
Plaintiff timely submitted evidence in response to the second RFE, including a letter from the Ministry sent to the U.S. Department of Homeland Security. (See AR 141-234.) In this letter, the Ministry explained that it “not only authorizes the placement of children with approved [PAPs] prior to the fostering order, it recommends such action as being in the child's best interest.” (AR 160.)
The Ministry stated that by placing the child with Plaintiff and her husband “for a trial period prior to the court-issued fostering order,” Love Care and the couple “were acting in accordance with the policies of the Ministry.” (Id.) Plaintiff also provided explanations for the other discrepancies identified by USCIS, and described how no original birth certificate exists for D.A.C., so she submitted secondary evidence of the child's identity, including her passport, national identity management enrollment transaction slip, and medical record. (AR 143-46; see also AR 169-94.)
On January 31, 2022, USCIS denied Plaintiff's Form I-600 without prejudice. (AR 55-60.) After summarizing all of the evidence submitted by Plaintiff, USCIS stated as follows:
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