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No. 15-1138
Argued:
December 8, 2015
Decided:
In so ruling, the
That
provision
BIA,
is
not
ambiguous
in
the
way
asserted
by
the
however, and thus does not contain a gap that Congress has left
for the BIA to fill.
summarily disregards
facially
contrary to law.
valid
state
court
orders
is
I.
A.
Before addressing the particulars of Ojos case, we briefly
sketch the
relevant
statutory
framework
governing
citizenship
An
adopted
child
qualifies
as
child
for
purposes
of
satisfies
1101(b)(1).
the
relevant
requirements
of
U.S.C.
See 1431(b).
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.
foreign-born
remains an alien.
child
who
fails
to
obtain
citizenship
The Department of
States,
including
aggravated felony.
any
alien
who
has
committed
an
For
purposes
of
1227(a)(2)(A)(iii),
an
aggravated
felony
is
defined in 1101(a)(43).
B.
1.
The pertinent facts of this case are not in dispute.
Ojo
14, 1989, when Ojo was just six years old, his uncle a United
States citizen became Ojos legal guardian.
years later, on June 19, 2000, when Ojo was sixteen, Ojos uncle
and the uncles 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),
2009
and
2012,
Ojo
was
convicted
of
two
drug-
of
Ojos
convictions,
and
alleging
On May 6, 2013, in
that
Ojo
had
not
U.S.C.
removability
1101(b)(1)(E),
from
the
United
the
DHS
States
charged
under
him
8
with
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
4
evidence.
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).
derived
citizenship
from
his
adoptive
father
(his
biological
request for a remand to the IJ, Ojo advised the BIA that his
adoptive
father
Maryland
state
would
court
seek
nunc
specifying
pro
that
tunc
Ojos
order
from
adoption
the
became
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
that
Ojos
representation
that
his
adoptive
father
would seek an order from the Maryland state court making Ojos
adoption effective nunc pro tunc to a date before he turned
sixteen did not warrant a remand to the IJ.
Consequently, the
removal
proceedings,
supported
by
nunc
pro
tunc
order
That
order made Ojos adoption effective on August 27, 1999, the day
before he turned sixteen.
recognize
reaches
the
nunc
age
pro
limit
tunc
for
adoption
both
the
decrees
filing
after
of
the
child
adoption
attains
the
age
[specified
6
in
the
INA],
thereby
relationship,
Congress
has
attempted
to
distinguish
circumvent
statutory
restrictions.
Id.
Thereafter,
in
contention
that
decree
of
adoption
is
fully
Congress
intent
that
the
age
restriction
other
words,
on
the
premise
in
[8
U.S.C.
Id. 2
that
its
decisions
in
valid nunc pro tunc orders entered by the various state courts
of
this
country.
Multiple
federal
courts
thereafter
cast
See, e.g.,
772
F.
Supp.
2d
1270
(D.
Haw.
2011);
Gonzalez-
that the BIAs blanket rule against recognizing nunc pro tunc
adoption
decrees
1101(b)(1)
constitutes
and
that
an
impermissible
case-by-case
consideration
Cir.
2013).
The
Ninth
construction
of
nunc
of
pro
Circuit
withdrew
its
Amponsah
Cariaga/Drigo
decisions
addressing
rule.
across-the-board
the
Ninth
The
BIA,
as
not
Circuits
8
however,
binding.
Amponsah
rejected
those
Specifically
opinion,
the
BIA
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 Ojos removal proceedings.
On
February
10,
2015,
Ojo
filed
timely
petition
for
We
BIA
modified
the
Cariaga/Drigo
rule
in
its
precedential
Huang
decision
restriction
in
related
U.S.C.
that
Congress
imposed
an
age
1101(b)(1)(E)(i)
because
it
was
having
the
appearance
of
validity,
are
actually
See
rule [from Cariaga and Drigo] we have applied for many years is
too limiting in that it does not allow us to adequately consider
the interests of family unity.
Id. at 631.
the
Federal
See 26
Rules
of
Appellate
Procedure,
the
Attorney
II.
We review the BIAs denial of a motion to reopen removal
proceedings for abuse of discretion.
F.3d
177,
petition
182
for
(4th
review,
Cir.
the
2014).
For
BIAs
decision
our
Court
must
be
to
grant
arbitrary,
III.
The dispute presented here between Ojo and the Attorney
General centers on the statutory phrase, adopted while under
the age of sixteen years.
disregarding
nunc
pro
tunc
orders
relating
to
v.
Keisler,
502
F.3d
337,
343-44
(4th
Cir.
See
2007).
we
reasonable.
defer
to
the
agencys
interpretation
if
it
is
That is so because
Id.
at
274
(quoting
Bd.
of
Governors,
FRS
v.
to
handle
the
tools
of
statutory
construction
plain
text,
then,
this
canon
is
also
the
last:
As
We
therefore must read the words in their context and with a view
to their place in the overall statutory scheme.
Id. (internal
child
for
purposes
of
derivative
To be
citizenship
See 8 U.S.C.
adoption.
An
adoption
is
[t]he
creation
by
judicial
order
of
legal
act
of
adoption
creates
The
parent-child
with
all
the
rights,
privileges,
and
responsibilities
that
short,
an
adoption,
as
defined
and
commonly
used,
Furthermore, it is well
Couple
v.
Baby
Girl,
133
S.
Ct.
2552,
2565
See
(2013)
and
regarded
domestic
as
relations
virtually
is
an
exclusive
area
that
province
has
of
long
the
been
States
14
2.
Viewing 8 U.S.C. 1101(b)(1)(E)(i) in the broader context
within which Congress legislates confirms our plain reading of
the statute.
legislature
Naturalization,
power
see
[t]o
establish
Const.
art. I,
an
8,
uniform
cl. 4;
Rule
of
Johnson
v.
Whitehead, 647 F.3d 120, 130 (4th Cir. 2011), it has long been a
hallmark of our federalism principles that full authority over
domestic-relations
matters
resides
586,
593-94
(1890)
(The
whole
not
in
the
national
of
the
domestic
deferred
to
state-law
domestic relations.
policy
decisions
with
respect
to
requires
reference
to
state
law);
see
also
Full
It is not surprising,
Army
(explaining
Corps
of
that
the
congressional
alters
intent
the
Engrs,
courts
when
531
U.S.
expect
an
federal-state
159,
clear
172-73
indication
administrative
framework
by
(2001)
of
interpretation
permitting
federal
adopted
for
purposes
of
federal
immigration
law
and
501
quotation
U.S.
452,
(acknowledging
powers
under
460
(1991)
that
the
our
(internal
States
retain
constitutional
substantial
scheme,
marks
powers
omitted)
sovereign
with
which
immigration
law.
Nor
did
Congress
explicitly
2557
(majority
opinion)
(observing
that
the
Indian
Child
child
custody
proceedings
involving
Indian
over
adoptions.
See
U.S.C.
1103(g)
(outlining
over
state
court
adoption
orders.
Thus,
when
an
the
effective
relevant
state
date
court
of
the
adoption
instruments.
as
Cf.
set
forth
in
Carachuri-Rosendo
the
v.
court
must
look
whether
state
to
state
offense
is
conviction
aggravated
itself
felony
to
under
INA).
Put
succinctly,
1101(b)(1)(E)(i)
facially
valid
the
plain
forecloses
nunc
pro
the
tunc
meaning
BIAs
orders
of
adopted
summary
relating
disregard
to
in
of
adoptions
ambiguous
under
Chevrons
17
first
and
the
BIAs
interpretations
that
circumscribe
reliance
on
nunc
pro
tunc
As a
IV.
Pursuant
to
the
foregoing,
we
grant
Ojos
petition
for