Adebowale Ojo v. Loretta Lynch ( 2016 )


Menu:
  •                                PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 15-1138
    ADEBOWALE OLOYEDE OJO,
    Petitioner,
    v.
    LORETTA E. LYNCH,
    Respondent.
    On Petition for Review of an Order of the Board of Immigration
    Appeals.
    Argued:   December 8, 2015                 Decided:   February 16, 2016
    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.
    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.
    KING, 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.
    I.
    A.
    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:
    2
    •      First, “[a]t least one parent of the child is a
    citizen of the United States, whether by birth or
    naturalization”;
    •      Second, “[t]he child is under the age of eighteen
    years”; and
    •      Finally, “[t]he 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.”
    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
    3
    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
    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
    4
    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
    1 The Latin phrase “nunc pro tunc” translates literally as
    “now for then.”   See John Gray, Lawyer’s Latin 100 (2002).  An
    order entered nunc pro tunc has “retroactive legal effect
    through a court’s inherent power.”   See Black’s Law Dictionary
    1237 (10th ed. 2014).
    5
    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), and Matter of Drigo, 
    18 I. & N. Dec. 223
     (BIA 1982).
    2.
    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
    6
    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.              According to the BIA, “[t]hrough
    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
    2The version of 
    8 U.S.C. § 1101
    (b)(1)(E)(i) applicable in
    Cariaga and Drigo required that the putative child be adopted
    before turning fourteen.     In 1981, Congress amended that
    provision and changed age fourteen to age sixteen.          See
    Immigration and Nationality Act of 1981, Pub L. No. 97–116,
    § 2(b), 
    95 Stat. 1611
    , 1611 (codified as amended at 
    8 U.S.C. § 1101
    (b)(1)(E)(i)).
    7
    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).
    3.
    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
    8
    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 denying his motion to reopen.                              We
    possess jurisdiction pursuant to 
    8 U.S.C. § 1252
    .
    4.
    On July 8, 2015, during the pendency of this proceeding,
    the   BIA   modified        the    Cariaga/Drigo         rule    in   its    precedential
    decision in Matter of Huang, 
    26 I. & N. Dec. 627
     (BIA 2015).
    The   Huang     decision          related    that        Congress     imposed     an   age
    restriction        in   
    8 U.S.C. § 1101
    (b)(1)(E)(i)            because   it   was
    concerned about “fraudulent adoptions that have no factual basis
    for the underlying relationship,” as well as adoptions that,
    “despite      having        the    appearance       of     validity,        are   actually
    motivated by a desire to circumvent the immigration laws.”                             See
    
    id. at 629-30
    .          Huang also explained, however, that “the blanket
    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
    .
    9
    Pursuant to the new Huang rule, the BIA will recognize a
    nunc pro tunc order relating to an adoption “where the adoption
    petition was filed before the beneficiary’s 16th birthday, the
    State in which the adoption was entered expressly permits an
    adoption decree to be dated retroactively, and the State court
    entered such a decree consistent with that authority.”                           See 26
    I. & N. Dec. at 631.                On July 22, 2015, pursuant to Rule 28(j)
    of   the      Federal       Rules     of    Appellate    Procedure,       the   Attorney
    General notified our Court of the Huang decision and asserted
    that, “under the new framework set forth in [Huang], Petitioner
    [Ojo] still did not derive citizenship under 
    8 U.S.C. § 1431
    .” 3
    II.
    We review the BIA’s denial of a motion to reopen removal
    proceedings for abuse of discretion.                        See Lin v. Holder, 
    771 F.3d 177
    ,    182    (4th     Cir.    2014).     For   our   Court    to   grant   a
    petition          for    review,    the    BIA’s    decision   must   be    “arbitrary,
    3At oral argument, the Attorney General’s counsel
    maintained that her client would be entitled to press an
    additional contention if this matter were remanded:      that Ojo
    cannot qualify for citizenship under 
    8 U.S.C. § 1431
    (a) because
    he did not become a legal permanent resident (an “LPR”) prior to
    turning eighteen.   The LPR issue was an alternative ground for
    the IJ’s ruling that Ojo is a non-citizen removable from this
    country. The BIA did not reach the LPR issue, so it is not ripe
    for our review in this proceeding.    See Mulyani v. Holder, 
    771 F.3d 190
    , 196 (4th Cir. 2014) (“[R]eview of an IJ decision is
    permissible only to the extent that the BIA adopted it.”).
    10
    capricious, or contrary to law.”           See Nken v. Holder, 
    585 F.3d 818
    , 821 (4th Cir. 2009).
    III.
    The dispute presented here between Ojo and the Attorney
    General centers on the statutory phrase, “adopted while under
    the age of sixteen years.”          See 
    8 U.S.C. § 1101
    (b)(1)(E)(i).
    More specifically, we must determine whether the term “adopted”
    plainly denotes the effective date of an adoption, or whether
    that term is ambiguous and could instead signify the date that
    the act of adoption occurred.             Only if the term “adopted” is
    ambiguous may we accord Chevron deference to the BIA’s policy of
    summarily   disregarding     nunc    pro     tunc    orders      relating   to
    adoptions conducted in the various state courts of this country
    — a policy engendered in the Cariaga/Drigo rule and recently
    modified in Huang.     See Chevron, U.S.A., Inc. v. Nat. Res. Def.
    Council, Inc., 
    467 U.S. 837
     (1984).
    A.
    Congress has charged the Attorney General, and in turn the
    BIA, with administering significant portions of the INA.                    See
    Fernandez   v.   Keisler,   
    502 F.3d 337
    ,   343-44   (4th   Cir.   2007).
    Thus, we generally evaluate the BIA’s interpretations of the
    INA’s provisions by following the two-step approach announced by
    the Supreme Court in Chevron.        See Barahona v. Holder, 
    691 F.3d 11
    349, 354 (4th Cir. 2012).              At Chevron’s first step, we “examine
    the statute’s plain language; if Congress has spoken clearly on
    the precise question at issue, the statutory language controls.”
    Barahona, 691 F.3d at 354 (internal quotation marks omitted).
    If Congress has not so spoken, in that “the statute is silent or
    ambiguous,    we    defer      to    the    agency’s    interpretation       if     it   is
    reasonable.”       Id. (internal quotation marks omitted).
    To resolve the initial inquiry under Chevron’s first step,
    we focus “purely on statutory construction without according any
    weight to the agency’s position.”                    See Mylan Pharm., Inc. v.
    FDA, 
    454 F.3d 270
    , 274 (4th Cir. 2006).                          That is so “because
    ‘[t]he traditional deference courts pay to agency interpretation
    is not to be applied to alter the clearly expressed intent of
    Congress.’”        
    Id. at 274
        (quoting      Bd.    of    Governors,       FRS   v.
    Dimension Fin. Corp., 
    474 U.S. 361
    , 368 (1986)).
    Preparing     to    handle      the    tools     of   statutory    construction
    prompts us to emphasize, as we have frequently, that “the plain
    language of the statute is . . . the most reliable indicator of
    Congressional intent.”              See, e.g., Soliman v. Gonzales, 
    419 F.3d 276
    , 281–82 (4th Cir. 2005).                If Congress’s intent is clear from
    the   plain   text,      “then,      this    first     canon     is   also   the    last:
    judicial inquiry is complete.”                See Barnhart v. Sigmon Coal Co.,
    
    534 U.S. 438
    , 462 (2002) (internal quotation marks omitted).                             As
    the Supreme Court has recently reiterated, however, “the meaning
    12
    — or ambiguity — of certain words or phrases may only become
    evident when placed in context.”              See King v. Burwell, 
    135 S. Ct. 2480
    , 2489 (2015) (internal quotation marks omitted).                        We
    therefore must “read the words in their context and with a view
    to their place in the overall statutory scheme.”                   
    Id.
     (internal
    quotation marks omitted).
    B.
    1.
    We begin with the text of the relevant statute.                        To be
    considered    a   “child”    for     purposes    of    derivative    citizenship
    under 
    8 U.S.C. § 1431
    , an adopted child must, in pertinent part,
    be “adopted while under the age of sixteen years.”                  See 
    8 U.S.C. § 1101
    (b)(1)(E)(i).       A child is “adopted,” of course, through an
    “adoption.”
    An   adoption   is     “[t]he    creation    by    judicial    order   of   a
    parent-child relationship between two parties.”               See Black’s Law
    Dictionary 58 (10th ed. 2014); see also Black’s Law Dictionary
    49 (6th ed. 1990) (defining “adoption” as the “[l]egal process
    pursuant to state statute in which a child’s legal rights and
    duties toward his natural parents are terminated and similar
    rights and duties toward his adoptive parents are substituted”);
    Black’s Law Dictionary 63 (3d ed., rev. 1944) (similar).                      The
    formal    legal     act     of     adoption      “creates    a      parent-child
    relationship between the adopted child and the adoptive parents
    13
    with    all    the       rights,   privileges,          and     responsibilities         that
    attach to that relationship.”                     See Black’s Law Dictionary 58
    (10th ed. 2014).
    In   short,       an    “adoption,”    as      defined       and    commonly     used,
    contemplates a formal judicial act.                          Furthermore, it is well
    understood that, in the United States, our various state courts
    exercise full authority over the judicial act of adoption.                                See
    Adoptive      Couple      v.   Baby   Girl,     
    133 S. Ct. 2552
    ,     2565    (2013)
    (Thomas, J., concurring) (observing that “[a]doption proceedings
    are adjudicated in state family courts across the country every
    day,   and    domestic         relations   is      an    area    that      has   long   been
    regarded      as     a    virtually    exclusive         province         of   the    States”
    (internal quotation marks omitted)).
    With those principles in mind, we discern no indication
    from the text of § 1101(b)(1)(E)(i) — or from any other aspect
    of the statutory scheme created in the INA — that Congress
    intended to alter or displace the plain meaning of “adopted.”
    The term “adopted” thus carries with it the understanding that
    adoption proceedings in this country are conducted by various
    state courts pursuant to state law.                     Plainly, 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.
    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.       Although the Constitution commits to the federal
    legislature       the    power     “[t]o    establish       an    uniform          Rule     of
    Naturalization,”         see    Const.     art. I,   § 8,        cl. 4;          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    not        in        the     national
    government, but in the several States.                See Ex parte Burrus, 
    136 U.S. 586
    ,    593-94     (1890)    (“The    whole   subject          of    the    domestic
    relations of husband and wife, parent and child, belongs to the
    laws of the States and not to the laws of the United States.”).
    To that end, “the Federal Government, through our history,
    has    deferred    to    state-law       policy    decisions       with          respect    to
    domestic relations.”            See United States v. Windsor, 
    133 S. Ct. 2675
    , 2691 (2013) (relying on De Sylva v. Ballentine, 
    351 U.S. 570
    , 580 (1956), wherein the Supreme Court itself observed that,
    “[t]o determine whether a child has been legally adopted, for
    example,      requires    a    reference    to    state   law”);           see    also     Full
    Faith and Credit Act, 
    28 U.S.C. § 1738
     (codifying federal policy
    of deference to state court orders).                      It is not surprising,
    then, that the federal courts might look suspiciously upon a
    federal agency that treads on a traditional judicial domain of
    15
    the various States.                See Solid Waste Agency of N. Cook Cty. v.
    U.S.     Army      Corps      of    Eng’rs,       
    531 U.S. 159
    ,     172-73     (2001)
    (explaining        that      the    courts    expect      a     “clear     indication”       of
    congressional          intent       when     an     “administrative          interpretation
    alters       the     federal-state           framework        by     permitting        federal
    encroachment upon a traditional state power”).
    Here, if Congress had intended a modified definition of the
    term    “adopted”       for     purposes      of     federal        immigration       law   and
    sought to place the interpretation thereof in the hands of an
    administrative agency, such as the BIA, Congress would have made
    that intention “unmistakably clear.”                       See Gregory v. Ashcroft,
    
    501 U.S. 452
    ,    460    (1991)       (internal     quotation        marks      omitted)
    (acknowledging         that     “the       States    retain        substantial     sovereign
    powers       under     our    constitutional            scheme,      powers     with     which
    Congress does not readily interfere”).                          Congress did not, for
    example, specify requirements in the INA that, if met, would
    confer upon a child the status of “adopted” for purposes of
    federal       immigration           law.          Nor     did       Congress     explicitly
    circumscribe state authority over adoptions in the immigration
    context, as it has elsewhere.                     See Adoptive Couple, 
    133 S. Ct. at 2557
        (majority       opinion)       (observing         that   the    Indian    Child
    Welfare Act of 1978 “establishes federal standards that govern
    state-court          child         custody        proceedings          involving        Indian
    children”).          Nor did Congress expressly confer on the Attorney
    16
    General or the BIA any power to override the States’ traditional
    control      over    adoptions.           See    
    8 U.S.C. § 1103
    (g)        (outlining
    powers and duties of Attorney General under INA).
    Instead, in 
    8 U.S.C. § 1101
    (b)(1)(E)(i), Congress chose the
    simple phrase, “adopted while under the age of sixteen years.”
    The inclusion of an age requirement in the statute — without
    more — cannot be read to create some power of federal agency
    review       over    state     court      adoption          orders.          Thus,     when    an
    individual has been “adopted” under § 1101(b)(1)(E)(i) depends
    on    the    effective      date     of   the    adoption          as   set    forth      in   the
    relevant      state    court       instruments.              Cf.    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
    INA).
    Put     succinctly,          the    plain           meaning      of    “adopted”        in
    § 1101(b)(1)(E)(i)           forecloses         the    BIA’s       summary     disregard       of
    facially      valid     nunc    pro       tunc       orders    relating        to     adoptions
    conducted by the various state courts.                         Although the BIA — in
    its recent Huang decision — has jettisoned the Cariaga/Drigo
    rule’s absolute prohibition on giving any effect to such orders
    in immigration matters, the BIA nonetheless has continued to
    automatically deny recognition to some.                            The term “adopted” is
    not     ambiguous      under       Chevron’s          first     step,        and    the    BIA’s
    17
    interpretations      that   circumscribe    reliance     on   nunc   pro    tunc
    orders are not entitled to deference.
    In these circumstances, 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. 4
    IV.
    Pursuant   to    the   foregoing,     we    grant   Ojo’s   petition    for
    review and vacate the BIA’s decision denying Ojo’s motion to
    reopen his removal proceedings.           We remand to the BIA for such
    other and further proceedings as may be appropriate.
    PETITION FOR REVIEW GRANTED;
    VACATED AND REMANDED
    4 We need not reach any issue of whether the Attorney
    General or the DHS is entitled to demonstrate that a particular
    state court nunc pro tunc order evinces a fraudulent or spurious
    adoption.   Importantly, the Attorney General conceded at oral
    argument that there are no indications of fraud with respect to
    the 2014 nunc pro tunc order relating to Ojo’s adoption in the
    Maryland state court.
    18