Ojo v. Lynch, 15–1138.
| Decision Date | 16 February 2016 |
| Docket Number | No. 15–1138.,15–1138. |
| Citation | 813 F.3d 533 |
| Parties | Adebowale Oloyede OJO, Petitioner, v. Loretta E. LYNCH, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED:Henry Caleb Griffin, Griffin And Griffin, Annapolis, Maryland, for Petitioner. Stefanie A. Svoren–Jay, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF:Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, John S. Hogan, Assistant Director, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
Before MOTZ, KING, and KEENAN, Circuit Judges.
Petition for review granted; vacated and remanded by published opinion. Judge KING
wrote the opinion, in which Judge MOTZ and Judge KEENAN joined.
, Circuit Judge:
Adebowale Oloyede Ojo, a native of Nigeria and the adopted son of a United States citizen, petitions for review of the decision of the Board of Immigration Appeals (the "BIA") denying a motion to reopen his removal proceedings. In so ruling, the BIA relied on its administrative interpretation of a provision in the Immigration and Nationality Act (the "INA") relating to adopted children, codified at 8 U.S.C. § 1101(b)(1)(E)(i)
. That provision is not ambiguous in the way asserted by the BIA, however, and thus does not contain a gap that Congress has left for the BIA to fill. Moreover, the BIA's interpretation—which summarily disregards facially valid state court orders—is contrary to law. We therefore grant the petition for review, vacate the BIA's decision, and remand for further proceedings.
Before addressing the particulars of Ojo's case, we briefly sketch the relevant statutory framework governing citizenship for foreign-born children. Section 1431(a) of Title 8
provides that "[a] child born outside of the United States automatically becomes a citizen of the United States when [three] conditions" are satisfied:
An adopted child qualifies as a "child" for purposes of § 1431(a)
if he was "adopted by a United States citizen parent" and satisfies the relevant requirements of 8 U.S.C. § 1101(b)(1). See § 1431(b).
Section 1101(b)(1)(E)(i)
, in turn, defines a child as "an unmarried person under twenty-one years of age," who was "adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years." The INA does not provide its own definition of the term "adopted," specify any requirements for a proper adoption, or contemplate the BIA's involvement in any adoption proceedings.
A foreign-born child who fails to obtain citizenship remains an alien. See 8 U.S.C. § 1101(a)(3)
. The Department of Homeland Security (the "DHS")—acting on behalf of the Attorney General—has the power to order certain aliens removed from the United States, including any alien who has committed an "aggravated felony." See 8 U.S.C. § 1227(a)(2)(A)(iii). For purposes of § 1227(a)(2)(A)(iii), an "aggravated felony" is defined in § 1101(a)(43).
The pertinent facts of this case are not in dispute. Ojo was born in Nigeria on August 28, 1983, and he lawfully entered the United States in August 1989. Two weeks later, on September 14, 1989, when Ojo was just six years old, his uncle—a United States citizen—became Ojo's legal guardian. More than ten years later, on June 19, 2000, when Ojo was sixteen, Ojo's uncle and the uncle's wife filed a petition to adopt Ojo. On January 24, 2001, after Ojo had turned seventeen, the Circuit Court for Montgomery County, Maryland (the "Maryland state court"), entered a judgment of adoption.
Between 2009 and 2012, Ojo was convicted of two drug-related offenses, either of which qualifies as an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(B)
. On May 6, 2013, in light of Ojo's convictions, and alleging that Ojo had not derived citizenship as an adopted child under 8 U.S.C. § 1431 and 8 U.S.C. § 1101(b)(1)(E), the DHS charged him with removability from the United States under 8 U.S.C. § 1227(a)(2)(A)(iii).
On May 15, 2014, an immigration judge (the "IJ") determined that Ojo was removable from this country by clear and convincing evidence. The IJ explained that, because Ojo turned sixteen on August 28, 1999, and was not adopted by his citizen uncle until he was already seventeen years old, he did not qualify as an adopted child under § 1101(b)(1)(E)
. As a result, Ojo had not derived citizenship from his adoptive father (his biological uncle) pursuant to § 1431.
On June 25, 2014, the BIA received Ojo's notice of appeal of the IJ's decision. On September 10, 2014, in support of a request for a remand to the IJ, Ojo advised the BIA that his adoptive father would seek a nunc pro tunc order from the Maryland state court specifying that Ojo's adoption became effective before he turned sixteen.1 Ojo asserted that the court would likely grant such an order because—between the time Ojo entered the United States at age six in 1989 and the approval of his adoption in 2001—he had lived continuously as the child of his adoptive father.
On October 31, 2014, the BIA agreed with the IJ that Ojo was removable, recognizing that Ojo had the burden of proving his citizenship claim and showing that his adoption occurred before his sixteenth birthday. Relying on the judgment of adoption of January 24, 2001, the BIA ruled that Ojo was seventeen when adopted. Accordingly, the BIA decided that he did not qualify as an adopted child under § 1101(b)(1)(E)
for purposes of derivative citizenship under § 1431. The BIA also concluded that Ojo's representation that his adoptive father would seek an order from the Maryland state court making Ojo's adoption effective nunc pro tunc to a date before he turned sixteen did not warrant a remand to the IJ. Consequently, the BIA dismissed Ojo's appeal.
On November 24, 2014, Ojo filed a timely motion to reopen his removal proceedings, supported by a nunc pro tunc order entered on October 29, 2014, by the Maryland state court. That order made Ojo's adoption effective on August 27, 1999, the day before he turned sixteen. By a decision of January 12, 2015, the BIA denied Ojo's motion to reopen, observing that it "does not recognize nunc pro tunc adoption decrees after a child reaches the age limit for both the filing of the adoption petition and decree." For that principle, the BIA relied on its prior decisions in Matter of Cariaga, 15 I. & N. Dec. 716 (BIA 1976)
In its Matter of Cariaga decision, the BIA had established a blanket rule that "[t]he act of adoption must occur before the child attains the age [specified in the INA]," thereby precluding any consideration of a nunc pro tunc order entered after the relevant birthday but made effective before that date. See 15 I. & N. Dec. at 717
the imposition of an age restriction on the creation of the adoptive relationship, Congress has attempted to distinguish between bona fide adoptions, in which a child has been made a part of a family unit, and spurious adoptions, effected in order to circumvent statutory restrictions." Id. Thereafter, in Matter of Drigo, the BIA relied on its Cariaga decision and rejected the contention that "a decree of adoption is fully effective as of the date entered nunc pro tunc and is entitled to recognition for immigration purposes." See 18 I. & N. Dec. at 224
. The BIA's Drigo decision emphasized that "[i]t was Congress' intent that the age restriction in [8 U.S.C. § 1101(b)(1)(E)(i) ] be construed strictly." Id.2
In other words, on the premise that its decisions in Cariaga and Drigo would deter fraudulent and spurious adoptions, the BIA embraced an interpretation of § 1101(b)(1)(E)(i)
that flouted the effective dates of adoptions set forth in facially valid nunc pro tunc orders entered by the various state courts of this country. Multiple federal courts thereafter cast substantial doubt on the BIA's Cariaga/Drigo rule. See, e.g., Cantwell v. Holder, 995 F.Supp.2d 316 (S.D.N.Y.2014) ; Hong v. Napolitano, 772 F.Supp.2d 1270 (D.Haw.2011) ; Gonzalez–Martinez v. DHS, 677 F.Supp.2d 1233 (D.Utah 2009).
Only one of our sister courts of appeals has heretofore addressed the viability of the Cariaga/Drigo rule in a published opinion. In Amponsah v. Holder, the Ninth Circuit concluded "that the BIA's blanket rule against recognizing nunc pro tunc adoption decrees constitutes an impermissible construction of § 1101(b)(1)
and that case-by-case consideration of nunc pro tunc adoption decrees is required." See 709 F.3d 1318, 1326 (9th Cir.2013). The Ninth Circuit withdrew its Amponsah opinion a few months later, in September 2013, after the BIA advised the court that it was considering whether to overrule or modify the Cariaga/Drigo rule. See Amponsah v. Holder, 736 F.3d 1172 (9th Cir.2013).
In support of his motion to reopen his removal proceedings, Ojo invoked several of the federal court decisions discrediting the Cariaga/Drigo rule. The BIA, however, rejected those decisions across-the-board as "not binding." Specifically addressing the Ninth Circuit's Amponsah opinion, the BIA observed that Ojo's "reliance on [Amponsah ] is misplaced as this decision was withdrawn." The BIA did not acknowledge that the Ninth Circuit withdrew its Amponsah opinion because of the BIA's assurance to that court in 2013 that it was revisiting the Cariaga/Drigo rule—the very rule on which the BIA then relied in January 2015 to refuse to reopen Ojo's removal proceedings.
On February 10, 2015, Ojo filed a timely petition for review of the BIA's decision...
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