American Bar Association
Media Alerts
Media Alerts - Ojo v. Lynch -- Fourth Circuit
Decrease font size
Increase font size
March 29, 2016
  Ojo v. Lynch -- Fourth Circuit
Board of Immigration Appeals Must Recognize State Adoption Decisions

Areas of Law: Immigration Law, Administrative Law

Issue Presented: Whether the Board of Immigration Appeals must recognize state court orders determining when an individual has been adopted.

Brief Summary: Adebowale O. Ojo, a native of Nigeria and the adopted son of a U.S. citizen ("USC"), petitioned the United States Court of Appeals for the Fourth Circuit for review of a decision by the Board of Immigration Appeals ("BIA") denying Ojo's motion to reopen his removal proceedings. In denying the motion, the BIA relied on its administrative interpretation of INA § 1101(b)(1)(E)(i), relating to the adoption of children by USCs. The Fourth Circuit vacated the BIA decision and remanded for further proceedings because, contrary to what the BIA asserted INA § 1101(b)(1)(E)(i) is not ambiguous and thus does not contain a gap that Congress left for the BIA to fill. Moreover, the BIA's interpretation, which summarily disregards valid state court orders, is contrary to law.

Extended Summary: Ojo was born in Nigeria on August 28, 1983, and lawfully entered the U.S. in August 1989. Two weeks later, when Ojo was six years old, his uncle, a USC, became Ojo's legal guardian. More than ten years later, when Ojo was sixteen years old, Ojo's uncle filed a petition to adopt Ojo. On January 24, 2001, after Ojo turned seventeen, the Circuit Court for Montgomery County, Maryland entered a judgment of adoption. Between 2009 and 2012, Ojo was convicted of two drug-related offenses. The offenses qualify as aggravated felonies under INA § 1101(a)(43)(B). In May 2013, the Department of Homeland Security ("DHS") charged Ojo with removability from the U.S. under INA § 1227(a)(2)(A)(iii) due to his aggravated felonies and the DHS' refusal to recognize his derivation of citizenship.

On May 5, 2014, an immigration judge determined that Ojo was removable from this country by clear and convincing evidence. The judge explained that because Ojo turned sixteen on August 28, 1999, and was not adopted by a USC until he was seventeen years old, he did not qualify as an adopted child under INA § 1101(b)(1)(E). On appeal to the BIA, Ojo advised the BIA that his adoptive father would seek a nunc pro tunc order (a court ruling that applies retroactively to correct an earlier ruling) from the Montgomery County Circuit Court specifying that Ojo's adoption became effective before he turned sixteen years old. The BIA ruled that Ojo was seventeen years old when adopted and did not qualify as an adopted child under INA § 1101(b)(1)(E) for the purposes of derivative citizenship under INA § 1431. In November 2014, Ojo filed a motion to reopen his removal proceedings, supported by a nunc pro tunc order entered on October 29, 2014, by the Montgomery County Circuit Court. That order made Ojo's adoption effective on August 27, 1999, the day before he turned sixteen years old. The BIA denied Ojo's motion to reopen, observing that it did not recognize nunc pro tunc adoption decrees after a child reaches the age limit for both the filing of the adoption petition and decree. This is the BIA's Cariaga/Drigo precedent. On July 8, 2015, as the Fourth Circuit's review was pending, the BIA modified the Cariaga/Drigo precedent in its Matter of Huang decision, 26 I&N Dec. 627 (BIA 2015). In Huang, the BIA stated that it would recognize a nunc pro tunc order relating to an adoption "where the adoption petition was filed before the beneficiary's 16th birthday."

Applying a Chevron analysis, the Fourth Circuit held that the plain meaning of the term "adoption" in the relevant sections of the INA was not ambiguous. Where Congress speaks clearly, the statutory language controls and the BIA is not entitled to deference. The Fourth Circuit found no indication in the text of § 1101(b)(1)(E)(i) that Congress intended to alter or displace the plain meaning of "adopted." Therefore, a child is "adopted" for purposes of § 1101(b)(1)(E)(i) on the date that a state court rules the adoption effective, without regard to the date on which the act of adoption occurred. The federal government has "deferred to state-law policy decisions with respect to domestic relations." United States v. Windsor, 133 S.Ct. 2675, 2691 (2013). Therefore, the date on which an individual has been "adopted" under § 1101(b)(1)(E)(i) will depend on the effective date of the adoption as set forth in the relevant state court instructions. Carachuri-Rosendo v. Holder, 560 U.S. 563, 576-78 (2010) (explaining that federal immigration court must look to state conviction itself to determine whether state offense is "aggravated felony" under the INA).

According to the Fourth Circuit, it was contrary to law for the BIA not to recognize the nunc pro tunc order in Ojo's case. As a result, the BIA abused its discretion in denying Ojo's motion to reopen his removal proceedings.

To read the full opinion, click here.

Panel: Judges Motz, King, and Keenan

Argument Date: 12/08/2015

Date of Issued Opinion: 02/16/2016

Docket Number: No. 15-1138

Decided: Vacated and remanded by published opinion

Case Alert Author: Eric Suárez, Univ. of Maryland Carey School of Law

Counsel: Argued: Henry Caleb Griffin, GRIFFIN AND GRIFFIN, Annapolis, Maryland, for Petitioner. Sefanie 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

Author of Opinion: Judge King

Case Alert Supervisor: Professor Renée Hutchins

Edited: 03/29/2016 at 11:50 AM by Renee Hutchins

    Posted By: Renee Hutchins @ 03/29/2016 09:09 AM     4th Circuit  

FuseTalk Enterprise Edition - © 1999-2018 FuseTalk Inc. All rights reserved.

Discussion Board Usage Agreement

Back to Top