The Fight Over Nunc Pro Tunc Adoptions Orders

Author Bio: H. Caleb Griffin, Esq. is a practicing immigration and family attorney in Annapolis,
Maryland, who is partnered with his wife at the firm of Griffin and Griffin, LLP, and currently
has a case pending before the 4th Circuit Court of Appeals on the issue of nunc pro tunc adoption
orders as they affect derivative citizenship. Oral arguments will be held in December 2015.

Derivative Citizenship for Adopted Children

Under the Childhood Citizenship Act of 2000 (CCA), codified at 8 U.S.C. 1431, a child born
outside of the United States automatically becomes a U.S. citizen when all of the following
conditions have been fulfilled: (1) at least one parent of the child is a citizen of the United States,
whether by birth or naturalization; (2) the child is under the age of 18 years; and (3) the child is
residing in the United States in the legal and physical custody of the citizen parent pursuant to a
lawful admission for permanent residence. This is commonly called derivative citizenship.

The CCA further provides that adopted children may derive citizenship as long as they comply
with 8 U.S.C. 1101(b)(1) [INA 101(b)(1)] which requires that an adopted child be an
unmarried person under 21 years of age, adopted while under the age of 16, who has resided in
the legal custody of the adopting parent or parents for at least two years.

The process is generally rather straightforward. Most often, parents find their child in a foreign
nation and adopt them there or they bring the child to the U.S. under an orphan visa and adopt
them here. In time, the child becomes a U.S. citizen.

But what if the parents bungle the adoption? This happens more often than you might think. For
example, a couple may adopt a child in a non-Hague country like Jamaica, thinking that this
adoption is fully valid, only to find out when the child turns 16 and cant get a drivers license
that non-Hague adoptions are not recognized in the United States and their child is not really a
U.S. citizen. At this point, of course, it would be too late for derivative citizenship purposes to
re-adopt the child under U.S. law.
Nunc Pro Tunc Adoption Orders

One way that attorneys get around this problem is by requesting adoption orders, nunc pro tunc.
Nunc pro tunc is Latin, meaning now for then. A nunc pro tunc order is one that is issued
after the time it should have been issued, but given the same effect as if it had been issued on
time, i.e. a retroactive effect. Historically, these orders were used to correct clerical or
typographical errors but if you find the right family law judge or practice in one of the right
jurisdictions, you can get a nunc pro tunc adoption order on equitable grounds such as that your
client, the adopted child, would otherwise not be a U.S. citizen, unable to enjoy the rights and
privileges that citizenship affords, and could possibly be deported and separated from the only
family and community he or she has ever known.

This works great in many circumstances but if your child faces removal proceedings in
Immigration Court, you have another problem. Apart from a narrow exception discussed below,
the Board of Immigration Appeals (BIA or Board) has a longstanding policy of generally
disregarding nunc pro tunc adoption orders.

The Legislative Intent of INA 101(b)(1) / INA of 1952

The age cut-off for adopted children to receive derivative citizenship, codified at U.S.C.
1101(b)(1), was set by a 1957 amendment to the Immigration and Nationality Act of 1952. See
Immigration and Nationality Act of September 11, 1957 (71 Stat. 639). The BIA looked to the
legislative history of the amendment and the Act in setting its policy to disregard nunc pro tunc
adoptions. Matter of Cariaga, 15 I&N Dec. 716 (BIA 1976). In Cariaga, the BIA emphasized
Congress desire to prevent adoption fraud, specifically, adults circumventing immigration laws
by finding U.S. citizens to adopt them. The Board cites Congressman Francis Walters remarks
on the deliberate evasions of quota restrictions that had occurred in the past by permitting the
preferential entry of adult aliens adopted long after they reach their majority. Cariaga at 717,
fn.1.

Although, the Board also acknowledges that the legislative history of the Immigration and
Nationality Act of 1952 clearly indicates that the Congress was concerned with the problem of
keeping the families of immigrants united, and that [a]s part of that policy, Congress provided
liberal treatment of children, ultimately, the BIA is more persuaded by the fact that Congress
first, in 1952, disallowed adopted children altogether from derivative citizenship and later,
through the 1957 amendment, imposed an age cut-off of 14. Therefore, the Board believes a
strict interpretation of the time of adoption is in order.

Why the BIA is Wrong.

However, Congress desire to keep bona fide families together and its desire to treat children
liberally is much more supported in the legislative history of the INA than Congress desire to
prevent adoption fraud. See H.R.Rep. No. 1365, 82d Cong., 2d Sess., 29 (1952), reprinted
in 1952 U.S.C.C.A.N. 1653, 1680 (statute implements "the underlying intention of our
immigration laws regarding the preservation of the family unit"); H.R.Rep. No. 1199, 85th
Cong., 1st Sess., 7 (1957), reprinted in 1957 U.S.C.C.A.N. 2016, 2020 ("The legislative history
of the Immigration and Nationality Act clearly indicates that the Congress intended to provide
for a liberal treatment of children and was concerned with the problem of keeping families of
United States citizens and immigrants united."); Fiallo v. Bell, 430 U.S. 787, 795 n. 6, 97 S.Ct.
1473, 52 L.Ed.2d 50 (1977) (explaining that the INA aims to preserve family units and keep
families united); Kaho v. Ilchert, 765 F.2d 877, 885 (9th Cir.1985) (purpose of INA is to reunite
families).

The Boards emphasis on fraud is especially bizarre given that the Board never found any fraud
in Cariaga or in Drigo, the other seminal nunc pro tunc adoption case. Matter of Drigo, 18 I. &
N. Dec. 223 (BIA 1982). The Cariaga petitioner had sought an attorneys assistance in adopting
her noncitizen child when the child was very young, but the childs birth mother could not be
located and the attorney advised the petitioner to wait until the child turned 18 so he could
consent to his own adoption. On the other hand, the policy has actually resulted in the
deportation of those who were clearly in bona fide families that existed before the children had
reached the cut-off ages. See Gonzalez-Martinez v. DHS, 677 F.Supp.2d 1233, 1237 (D.Utah
2009).

Second, the Boards policy ignores the fact that state courts control in family law. Unless
Congress expressly intends otherwise, the word, adopted in 1101(b)(1) is defined by state
courts. As the Supreme Court explained in De Sylva v. Ballentine, 351 U.S. 570 (1956), "[t]he
scope of a federal right is, of course, a federal question, but that does not mean that its content is
not to be determined by state, rather than federal law." Id. at 580. "This is especially true where a
statute deals with a familial relationship; there is no federal law of domestic relations, which is
primarily a matter of state concern." Id. "To determine whether a child has been legally adopted,
for example, requires a reference to state law." Id. (emphasis mine).

Third, the Boards policy violates the Full Faith and Credit Act, which says that the "records and
judicial proceedings of any court of any ... State ... shall have the same full faith and credit in
every court within the United States ... as they have by law or usage in the courts of such State ...
from which they are taken." 28 U.S.C. 1738.

Federal Litigation

Of course, a number of parents whose adoption orders were rejected by the BIA appealed to
federal courts for judicial review and, for the most part, the federal judges disagreed with the
BIA. There are two exceptions. The 11th Circuit Court of Appeals, in an unpublished opinion,
deferred to the BIA policy without addressing any of the issues stated above. Mathews v.
USCIS, 458 Fed.Appx. 831, 833 (11th Cir. 2012) (unpublished). Similarly, the District Court of
New Jersey found Cariaga to be reasonable but failed to seriously analyze any of the issues
raised in this article. Khalil v. Napolitano, 983 F.Supp.2d 484 (2013).

Every other court that has published on this issue seems to have ruled against the BIA policy. See
Sook Young Hong v. Napolitano, 772 F. Supp. 2d 1270 (D. Haw. 2011) (Chevron step
two); Velazquez v. Holder, No. C 09-01146 MEJ, 2009 WL 4723597 (N.D. Cal. Dec. 9, 2009);
Gonzalez-Martinez, 677 F.Supp.2d at 1238; Messina v. USCIS, No. Civ.A. 05CV73409DT, 2006
WL 374564, at 6 (E.D.Mich. Feb. 16, 2006); Cantwell v. Holder, 995 F. Supp. 2d 316 (S.D.N.Y.
2014); see also Allen v. Brown, 953 F.Supp. 199, 202-03 (N.D.Ohio 1997) (requiring the BIA to
give effect to a nunc pro tunc adoption order).

Its especially noteworthy that after the 9th Circuit Court of Appeals ruled against the Cariaga
policy, finding the above district cases to be persuasive, the opinion was withdrawn because the
Board requested the opportunity to review whether Matter of Cariaga should be overruled or
modified. See Amponsah v. Holder, 709 F.3d 1318 (9th Cir. 2013); Amponsah v. Holder, 736
F.3d 1172 at 1173 (9th Cir. 2013) The 9th Circuit ordered the Board to issue status updates every
90 days regarding its review of Cariaga and Drigo.
On July 8, 2015, the BIA published an opinion modifying its Cariaga policy. Matter of Huang,
26 I&N Dec. 627 (BIA 2015). Now, instead of automatically denying all nunc pro tunc adoption
orders, the Board recognizes nunc pro tunc adoption orders as long as the adoption petition was
filed before the child turned 16 and there is an express provision in the states law permitting
courts to enter adoption decrees retroactively. This exception would not help the Jamaican
teenager given in our example above or any others who discover too late their adoption
problems. The Board still finds the date of entry of the order, not its (retroactively) effective
date, to be the more important determining factor.

Interestingly, in a concurring opinion, Board Member Michael J. Creppy disagrees with the rest
of the Board, arguing that the existence of a legal qualifying adoptive relationship is established
by the issuance of a valid adoption decree by a court or other government entity. regardless of
whether the decree is retroactive or not. Id. at 636. He sees nunc pro tunc adoption orders in this
respect as the same as other court orders that establish the existence of qualifying relationships
for the purpose of family-based immigration benefits. He points out that the adoption order is not
the end of the matter, but that the Department of Homeland Security retains its sole authority to
determine [whether] the adoptive family relationship is bona fide for immigration purposes.

The Department has proven itself quite capable in distinguishing bona fide marriages from
fraudulent ones entered into for immigration benefits. Why not rely upon that same wisdom
when reviewing adoptive relationships, rather than use a systematic rule that leaves bona fide
U.S. children in the cold?