Amponsah v. Holder

Nunc pro tunc adoption decrees must be considered on a case-by-case basis in determining whether an adopted child qualifies as a "child" under 8 U.S.C. § 1101(b)(1), and the Board of Immigration Appeals’ blanket rule against recognizing states’ nunc pro tunc adoption decrees was an “unreasonable and impermissible construction” of the statute.

Doris Amponsah Apori, a citizen of Ghana, came to the United States as a visitor and filed an I-130 visa petition and I-485 petition to adjust her status after her United States citizen aunt adopted her. The adoption was commenced in Washington prior to her 16th birthday. The Washington Superior Court issued an adoption nunc pro tunc setting the effective date of the adoption prior to Apori’s 16th birthday. The immigration judge denied Apori’s petition, and the Board of Immigration Appeals (“BIA”) affirmed, holding that Apori did not meet the definition of “child” under 8 U.S.C. § 1101(b)(1)(E) because she was adopted after she turned 16. Reviewing the BIA decision using the test set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., the panel found that statutory definition of a “child” includes a child adopted under 16 years old. However, the statute is ambiguous because it does not say if the adoption has to be issued or effective before the child turns 16. The panel found that BIA’s determination was an impermissible construction of the statute because it (1) failed to recognize adoption as a “legal status defined by state law,” (2) failed to give full faith and credit to the adoption decree, and (3) impermissibly determined all nunc pro tunc decrees to be invalid. Nunc pro tunc decrees must be considered on a case-by-case basis. The BIA also denied Apori’s status by determining she entered into a fraudulent marriage. Because the fraud issue was not litigated in the removal proceeding, Apori was denied due process by not being given a reasonably opportunity to be heard. PETITION GRANTED.