Doris Amponsah v. Eric Holder, Jr. ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DORIS AMPONSAH , No. 11-71311
Petitioner,
Agency No.
v. A079-811-066
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 7, 2012—Seattle, Washington
Filed March 22, 2013
Before: William A. Fletcher and Raymond C. Fisher,
Circuit Judges, and Gordon J. Quist, District Judge.*
Opinion by Judge Fisher
*
The Honorable Gordon J. Quist, Senior United States District Judge for
the W estern District of Michigan, sitting by designation.
2 AMPONSAH V . HOLDER
SUMMARY**
Immigration
The panel granted Doris Amponsah Apori’s petition for
review of the Board of Immigration Appeals’ decision
holding that she did not satisfy the definition of “child” under
8 U.S.C. § 1101(b)(1)(E) for the purposes of adjustment of
status, because she was not adopted before her 16th birthday.
The panel held under Chevron that the BIA’s blanket rule
against recognizing states’ nunc pro tunc adoption decrees
was an unreasonable and impermissible construction of
§ 1101(b)(1), and that case-by-case consideration of such
adoption decrees is required. The panel also held that the
BIA’s determination that Apori engaged in marriage fraud
violated her due process rights.
COUNSEL
Carol L. Edward (argued), Law Offices of Carol L. Edward
& Associates, P.S., Seattle, Washington, for Petitioner.
Stuart F. Delery, Acting Assistant Attorney General, Civil
Division, Douglas E. Ginsburg, Assistant Director, Office of
Immigration Litigation, and Katherine A. Smith (argued),
Trial Attorney, Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C., for Respondent.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
AMPONSAH V . HOLDER 3
OPINION
FISHER, Circuit Judge:
Doris Amponsah Apori seeks review of the Board of
Immigration Appeals’ (BIA) decision upholding the
immigration judge’s pretermission of her adjustment of status
application. The BIA pretermitted Apori’s application on the
ground that Apori did not satisfy the definition of “child”
under 8 U.S.C. § 1101(b)(1)(E) because she was not adopted
before her 16th birthday. The BIA applied its precedent
imposing a blanket rule against giving effect to state court
adoption decrees entered nunc pro tunc after a child turned
16. The BIA thus refused to give effect to a Washington state
court judgment decreeing that Apori’s adoption occurred
before her 16th birthday. Apori petitioned for review.
We hold that the BIA’s blanket rule against recognizing
state courts’ nunc pro tunc adoption decrees constitutes an
impermissible construction of § 1101(b)(1)(E) under
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 843 (1984). The BIA’s interpretation is
unreasonable because it gives little or no weight to the federal
policy of keeping families together, fails to afford deference
to valid state court judgments in an area of the law – domestic
relations – that is primarily a matter of state concern and
addresses the possibility of immigration fraud through a
sweeping, blanket rule rather than considering the validity of
nunc pro tunc adoption decrees on a case-by-case basis. We
further hold that the BIA’s determination that Apori engaged
in marriage fraud violated her rights to due process of law.
We therefore grant the petition for review.
4 AMPONSAH V . HOLDER
Background
Apori, a native and citizen of Ghana, was born in March
1984. She entered the United States as a visitor in July 1999,
when she was 15 years old. On July 28, 2000, the Pierce
County, Washington, Superior Court issued a decree
providing for Apori’s adoption by her United States citizen
aunt, Beatrice Apori. Apori maintains, and the government
does not dispute, that her adoptive mother initiated this
adoption process before Apori turned 16.
In September 2000, Apori’s adoptive mother filed an
I-130 family visa petition on Apori’s behalf. Apori filed a
corresponding I-485 application to adjust status. The parties
agree that the I-485 was denied in May 2001 and that there
was no separate formal denial of the I-130. Apori’s adoptive
mother filed a second I-130 petition in 2007, and Apori
ultimately renewed her application for adjustment of status.
In October 2001, the Washington superior court issued an
order modifying the July 2000 decree of adoption nunc pro
tunc. The court provided that “the Decree of Adoption herein
is hereby modified, nunc pro tunc, in so far as the effective
date of filing of the Decree of Adoption is hereby February
28, 2000, four days prior to the sixteenth birthday of the
adoptee.”
In May 2004, the Department of Homeland Security
(DHS) initiated removal proceedings against Apori, charging
her as removable under 8 U.S.C. § 1227(a)(1)(C)(i) for failing
to comply with the conditions of her nonimmigrant status.
Apori conceded that she was removable, but sought
adjustment of status as the adopted child of a United States
citizen.
AMPONSAH V . HOLDER 5
In December 2008, the immigration judge (IJ) granted the
government’s motion to pretermit Apori’s application for
adjustment of status. Federal law provides for adjustment of
status to legal permanent residence if “(1) the alien makes an
application for such adjustment, (2) the alien is eligible to
receive an immigrant visa and is admissible to the United
States for permanent residence, and (3) an immigrant visa is
immediately available to him at the time his application is
filed.” 8 U.S.C. § 1255(a). The government argued that an
immediate relative visa was not available to Apori because
she was adopted after the age of 16 and, hence, did not meet
the statutory definition of a child under § 1101(b)(1)(E).
Section 1101(b) provides in relevant part:
(1) The term “child” means an unmarried
person under twenty-one years of age who is
...
(E)(i) a child 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 or if
the child has been battered or subject to
extreme cruelty by the adopting parent or by
a family member of the adopting parent
residing in the same household: Provided,
That no natural parent of any such adopted
child shall thereafter, by virtue of such
parentage, be accorded any right, privilege, or
status under this chapter . . . .
8 U.S.C. § 1101(b) (first emphasis added); see also 8 C.F.R.
§ 204.2(d)(2)(vii).
6 AMPONSAH V . HOLDER
The IJ declined to decide whether Apori was adopted
before the age of 16. Instead, the IJ concluded that Apori
could not satisfy the statutory definition of child because she
did not show that she had “been in the legal custody of, and
has resided with, the adopting parent . . . for at least two
years.” 8 U.S.C. § 1101(b)(1)(E). Apori appealed the IJ’s
decision, and the BIA, reviewing de novo, affirmed. The BIA
did not decide the legal custody question, but agreed with the
government that Apori could not satisfy the definition of
child because she was not adopted before the age of 16:
The Immigration Judge correctly
pretermitted the respondent’s application to
adjust her status based on the absence of an
immediately available visa. The visa petitions
filed in 2000 and 2007 by the respondent’s
adoptive parent are presumptively not
grantable because an adoption decree entered
nunc pro tunc after the age of 16 is not given
retroactive effect under the immigration laws.
See Matter of Cariaga, 15 I&N Dec. 716(BIA 1976).
(Citations omitted.)
Apori timely petitioned for review. She challenges the
BIA’s blanket rule against giving effect to state court
adoption decrees entered nunc pro tunc after a child’s 16th
birthday. She also challenges the BIA’s separate
determination, discussed below, that she had engaged in
marriage fraud.
AMPONSAH V . HOLDER 7
Standard of Review
Where, as here, the BIA has conducted a de novo review
of the IJ’s decision, we review only the decision of the BIA.
See Hernandez v. Ashcroft, 345 F.3d 824, 832 (9th Cir. 2003).
The BIA’s resolutions of questions of law are reviewed de
novo. See id. Determinations of fact are reviewed for
substantial evidence. See id.Discussion
I.
The BIA held that Apori did not satisfy the statutory
definition of child because she was adopted after her 16th
birthday. In so holding, the BIA declined to give effect to the
Washington state court’s nunc pro tunc decree establishing
Apori’s adoption date as four days before she turned 16. The
BIA cited its precedential decision adopting a blanket rule
against recognizing nunc pro tunc adoption orders, Matter of
Cariaga, 15 I. & N. Dec. 716 (BIA 1976). The government
defends the BIA’s blanket rule as a correct, or at least
permissible, interpretation of § 1101(b)(1)(E). Apori argues
that the statute must be understood to require the BIA to give
effect to valid state adoption decrees, including nunc pro tunc
decrees. She argues that the BIA must review those decrees
on a case-by-case basis and give effect to them in the absence
of fraud.
Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984), establishes a two-step
framework for reviewing agency interpretations of statutes
they administer. Under the first step, we determine “whether
Congress has directly spoken to the precise question at issue.
8 AMPONSAH V . HOLDER
If the intent of Congress is clear,” then we “must give effect
to the unambiguously expressed intent of Congress.” Id. at
842–43. Under step two, “if the statute is silent or ambiguous
with respect to the specific issue, the question for the court is
whether the agency’s answer is based on a permissible
construction of the statute.” Id. at 843. “If a statute is
ambiguous, and if the implementing agency’s construction is
reasonable, Chevron requires a federal court to accept the
agency’s construction of the statute, even if the agency’s
reading differs from what the court believes is the best
statutory interpretation.” Nat’l Cable & Telecomms. Ass’n v.
Brand X Internet Servs., 545 U.S. 967, 980 (2005).
A. Chevron Step One
Section 1101(b) defines a child to include “a child
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.” 8 U.S.C.
§ 1101(b)(1)(E)(i) (emphasis added). The government argues
that this language unambiguously requires the adoption
decree to issue before the child reaches age 16. The statute,
however, says nothing about issuance of a decree. It speaks
of adoption, which could refer to the date the adoption is
effective under state law, as Apori asserts, or to the date the
adoption process is concluded, as the government maintains.
The statute is therefore ambiguous with respect to the specific
issue presented. See Mathews v. USCIS, 458 F. App’x 831,
833 (11th Cir. 2012) (so holding); Sook Young Hong v.
Napolitano, 772 F. Supp. 2d 1270, 1276 (D. Haw. 2011)
(same). We thus proceed to Chevron step two.
AMPONSAH V . HOLDER 9
B. Chevron Step Two
At step two, the question is whether the BIA’s
interpretation of § 1101(b)(1)(E), imposing a blanket rule
against recognition of nunc pro tunc adoption orders, is
reasonable.
The BIA adopted its interpretation of § 1101(b)(1)(E) in
Matter of Cariaga, 15 I. & N. Dec. 716, 717 (BIA 1976), and
Matter of Drigo, 18 I. & N. Dec. 223, 224 (BIA 1982). These
decisions, according to the BIA, establish the rule that “an
adoption decree entered nunc pro tunc after the age of 16 is
not given retroactive effect under the immigration laws.”
In Cariaga, a United States citizen petitioner applied for
immediate relative status for his adopted child. See Cariaga,
15 I. & N. Dec. at 716. The child came to the United States
in 1958, when he was two years old. See id. In 1963, when
the child was seven, the child’s father executed an affidavit
giving his consent to the adoption of the child by the
petitioner and his wife, with whom the child had been living.
See id. In 1975, when the child was 19, an Iowa court issued
a decree of adoption, declaring the child adopted by the
petitioner and his wife retroactive to April 8, 1963, the date
of the father’s affidavit. See id. at 717.
At the time, federal immigration law provided that the
adoption had to occur before the child attained the age of 14,
and the issue was “whether the retroactive effect which the
Iowa Court has given the adoption should be considered by
this Board in applying the provisions of the Immigration and
Nationality Act.” Id. The BIA, relying primarily on
legislative history, cursorily determined that it should not be:
10 AMPONSAH V . HOLDER
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. As part of that policy,
Congress provided liberal treatment of
children. Despite this concern, Congress did
not [initially] extend immigration benefits to
adopted children for fear that fraudulent
adoptions would provide a means of evading
the quota restrictions. See S. Rept. 1515, 81st
Cong., 2d Sess. 468. In 1957, however,
Congress included within the definition of
“child”, “one adopted while under the age of
fourteen if the child has thereafter been in the
legal custody of, and has resided with, the
adopting parent or parents for at least two
years . . .” See Immigration and Nationality
Act of September 11, 1957 (71 Stat. 639).
Through 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.
In light of the history behind the age
restriction in section 101(b)(1)(E), it appears
clear that the provision should be given a
literal interpretation. The act of adoption
must occur before the child attains the age of
fourteen. Therefore, despite the retroactive
effect given the beneficiary’s adoption by the
AMPONSAH V . HOLDER 11
Iowa Court, an adoptive relationship was not
created within the meaning of the
Immigration and Nationality Act, when the
beneficiary was adopted under Iowa law at
age nineteen.
Id. (footnote omitted).
In Drigo, a lawful permanent resident petitioner applied
for preference status for her adopted son. See Drigo, 18 I. &
N. Dec. at 223. The Territorial Court of the Virgin Islands
issued an adoption decree in October 1979, after the child’s
14th birthday, but the decree was entered nunc pro tunc as of
May 1979, before the child turned 14. See id. at 224.
Following Cariaga, the BIA ruled that it “was Congress’
intent that the age restriction in section 101(b)(1)(E) be
construed strictly” and, thus, that the “act of adoption must
have occurred before the child attained the age of 14.” Id.1
The government argues that the BIA’s interpretation is
reasonable, and should be accorded Chevron deference, for
essentially three reasons: (1) Cariaga was decided in 1976
and the BIA’s interpretation is therefore longstanding, see
Barnhart v. Walton, 535 U.S. 212, 220 (2002) (according
“particular deference to an agency interpretation of
‘longstanding’ duration”); (2) the BIA’s interpretation
balances Congress’ competing goals of keeping immigrant
families together and discouraging fraudulent adoptions made
only for the purpose of circumventing immigration laws; and
(3) the BIA acted within its discretion by giving greater
1
See also 8 C.F.R. § 204.2(d)(2)(vii)(C) (“To meet the definition of
child contained in sections 101(b)(1)(E) and 101(b)(2) of the Act, the child
must have been under 16 years of age when the adoption is finalized.”).
12 AMPONSAH V . HOLDER
weight to Congress’ concern about preventing fraud than to
its competing concern about keeping families together. The
government argues that this weighing of priorities “is
precisely the type of agency interpretation that . . . courts
should refrain from second-guessing.” We are not persuaded.
First, in the absence of a contrary intention expressed by
Congress, any construction of the word “adopted” in
§ 1101(b)(1) must afford due deference to state law. 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
added). The BIA’s blanket rule disregards this principle:
Apori was, as a matter of Washington law, adopted at the age
of 15. It is true, of course, that federal immigration law
“exists independent of state family law,” Bustamante-Barrera
v. Gonzales, 447 F.3d 388, 400 (5th Cir. 2006), but “where
the term in question involves a legal relationship that is
created by state or foreign law, the court must begin its
analysis by looking to that law,” Minasyan v. Gonzales,
401 F.3d 1069, 1076 (9th Cir. 2005). The BIA’s construction
fails to recognize that “adopted” is a legal status defined by
state law.
Second, the BIA’s blanket rule affords no weight to the
strong federal policy favoring federal recognition of valid
state court judgments. This policy is exemplified by the Full
Faith and Credit Act, which provides that the “records and
AMPONSAH V . HOLDER 13
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. The BIA’s categorical rule pays no heed to this
important federal policy.
Third, rather than addressing the possibility of fraud on an
individual basis, the BIA’s blanket rule conclusively lumps
all nunc pro tunc decrees together as invalid. This rule
presumes that every nunc pro tunc decree is spurious, thus
sweeping aside meritorious, nonfraudulent, nunc pro tunc
adoption decrees that recognize a bona fide family
relationship that actually existed before the child turned 16.
See Gonzalez-Martinez v. DHS, 677 F. Supp. 2d 1233, 1237
(D. Utah 2009). The BIA’s conclusion that the age restriction
in § 1101(b)(1)(E) must be “construed strictly,” Drigo, 18
I. & N. Dec. at 224, is in tension with the acknowledged
policy of “liberal treatment of children,” Cariaga, 15 I. & N.
Dec. at 717. The BIA refuses to acknowledge a nunc pro
tunc adoption decree even when adoption papers are filed on
time but adoption proceedings are delayed due to
circumstances entirely beyond the parents’ control.2
2
In Velazquez v. Holder, No. C 09-01146 MEJ, 2009 W L 4723597, at
*1 (N.D. Cal. Dec. 9, 2009), for example, the adoptive parents filed an
adoption petition in July 2005. Because of a delay by the U.S.
Department of Justice in returning the child’s live scan results, the state
court did not issue an adoption decree until April 2006, four months after
the child’s 16th birthday. See id. The senior adoption specialist from the
California Department of Social Services asked the court issue a nunc pro
tunc order to allow the adoption to be finalized before the child’s birthday,
and the court did so. See id. The United States Citizenship and
Immigration Services found that the child did not qualify as a “child”
because he was over the age of 16 when the adoption was finalized. See
14 AMPONSAH V . HOLDER
That some nunc pro tunc adoptions decrees may involve
fraud does not justify the BIA’s categorical refusal to
recognize nunc pro tunc decrees issued after the age of 16.
We confronted a similar question in Kaho v. Ilchert, 765 F.2d
877 (9th Cir. 1985). In Matter of Fakalata, 18 I. & N. Dec.
213 (BIA 1982), the BIA had refused to recognize Tongan
customary adoptions – which are less formal than
conventional adoptions – under § 1101(b)(1)(E), justifying its
decision as “a necessary safeguard against the possibility of
fraud.” Id. at 218. We rejected that reasoning, explaining:
[The government]’s contention that the
fluidity of Tongan customary adoptions would
create an unacceptable potential for fraud and
manipulation is unpersuasive. The INS is
quite capable of ferreting out fraudulent
claims. A petitioner seeking classification for
a relative bears the burden of demonstrating
that an adoption took place. The INS can ably
scrutinize the evidence submitted in support
of the petition and determine whether a bona
fide customary adoption in fact occurred
under the particular circumstances presented.
Furthermore, the specific requirements of
section 1101(b)(1)(E) minimize the possibility
of fraud.
Kaho, 765 F.2d at 886.
id. Citing Cariaga, the agency stated that it did not consider the court’s
nunc pro tunc order effective for immigration purposes. See id. The
district court ruled that the government’s “disregard of the order was
arbitrary, capricious, an abuse of discretion, and not in accordance with
law.” Id. at *7.
AMPONSAH V . HOLDER 15
Here too, the BIA can address fraud by investigating
individual cases, as it does when evaluating the possibility of
marriage fraud. See Sook Young Hong, 772 F. Supp. 2d at
1280; cf. Minasyan, 401 F.3d at 1080 n.20 (distinguishing
between nunc pro tunc divorce decrees that “would create a
legal fiction and would not serve the purpose of the statute”
and a nunc pro tunc decree that “acknowledged a separation
that was actually in effect both in practice and as a matter of
California law at the [relevant] time”). If the evidence shows
that an adoption decree’s effective date does not represent the
legitimate date of the adoption, the BIA need not recognize
it. Furthermore, as we emphasized in Kaho, the specific
requirements of § 1101(b)(1)(E) – at least two years of legal
custody pursuant to state law, with the child and the adoptive
parent having resided together in a familial relationship –
minimize the possibility of fraud. See Kaho, 765 F.2d at 886;
see also 8 C.F.R. § 204.2(d)(2)(vii)(A)–(B). The BIA’s strict
construction of the age requirement is based on the notion
that Congress drew a bright line using age to screen out fraud,
but ignores the fact that Congress also included the two-year
legal custody and residence requirements as an effective
screen. In sum, although the BIA’s blanket rule purports to
balance Congress’ liberal policy toward children and interest
in maintaining family unity against its interest in preventing
fraud, in fact it affords controlling weight to fraud prevention
while disregarding the child and family unity.3
3
W e agree with the BIA that Congress intended § 1101(b)(1) to serve
both of these interests. See Matter of Yuen, 14 I. & N. Dec. 71, 72 (BIA
1972) (“The definition of ‘child’ contained in section 101(b)(1) did not
extend to an adopted child until section 101(b)(1)(E) was added by the Act
of September 11, 1957 (71 Stat. 639). The amendment was designed to
prevent hardship and to keep families together. At the same time
Congress desired to prevent the recognition of ad hoc adoptions made only
for the purpose of circumventing the immigration laws.”).
16 AMPONSAH V . HOLDER
We are not the only ones to have seen these flaws in the
BIA’s blanket rule. A number of district courts have rejected
Cariaga as unreasonable at Chevron step two or as arbitrary
or capricious under the Administrative Procedure Act (APA).
See Sook Young Hong, 772 F. Supp. 2d at 1281 (Chevron step
two); Velazquez, 2009 WL 4723597, at *7 (APA);
Gonzalez-Martinez, 677 F. Supp. 2d at 1238 (same); Messina
v. USCIS, No. Civ. A 05CV73409DT, 2006 WL 374564, at
*6 (E.D. Mich. Feb. 16, 2006) (same); 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). We find these decisions persuasive.
We recognize that the Eleventh Circuit recently accorded
deference to Cariaga at Chevron step two. See Mathews v.
USCIS, 458 F. App’x 831, 833 (11th Cir. 2012)
(unpublished). Mathews, however, provides only a cursory
analysis, and it does not cite Sook Young Hong, Velazquez,
Gonzalez-Martinez, Messina or Allen or address any of the
concerns raised in those decisions (or discussed by us here).
Mathews, therefore, is not persuasive authority.
We hold 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
W hen Congress amended § 1101(b)(1) in 1981, see Pub. L. No. 97-
116, § 2(b), 95 Stat. 1611 (1981) (raising the adoption age limit from 14
to 16), it appears to have been concerned primarily with family unity
rather than spurious adoptions. See H.R. Rep. No. 97-264, at 19 (1981),
reprinted in 1981 U.S.C.C.A.N. 2577, 2588 (providing that the
amendment “will alleviate hardship for many U.S. citizen adoptive
parents”). The legislative history of the 1981 bill does not reflect
congressional awareness, approval or disapproval of the BIA’s decision
in Cariaga five years earlier.
AMPONSAH V . HOLDER 17
consideration of nunc pro tunc adoption decrees is required.
Accordingly, we grant the petition and remand for further
proceedings.4
II.
The BIA gave a second reason for pretermitting Apori’s
adjustment of status application – Apori’s participation in a
fraudulent marriage. See 8 U.S.C. § 1154(c) (providing that
no visa petition shall be approved if “the Attorney General
has determined that the alien has attempted or conspired to
enter into a marriage for the purpose of evading the
4
After this case was argued, we decided United States v. Yepez, — F.3d
— , 2012 W L 6621346 (9th Cir. Dec. 20, 2012) (en banc). There, we
declined to give effect to state court orders terminating the defendants’
probation nunc pro tunc to dates before the defendants committed their
federal offenses. W e held that U.S. Sentencing Guidelines Manual
§ 4A1.1(d), which provides for an additional two criminal history points
“if the defendant committed the instant offense while under any criminal
justice sentence, including probation,” “looks to a defendant’s status at the
time he commits the federal crime,” and explained that a state court could
not “alter the historical fact that the defendant had the status of probationer
when he committed his federal crime.” Id. at *1. The same reasoning
applies here. W hen applying § 1101(b) to a nunc pro tunc adoption
decree, the BIA must distinguish between a bona fide parent-child
adoptive relationship that actually existed as a matter of historical fact,
and which has been validated as such by the state court, and a decree that
creates an historical fiction. Cf. Minasyan, 401 F.3d at 1080 n.20
(distinguishing between nunc pro tunc divorce decrees that “would create
a legal fiction” and a nunc pro tunc decree that “acknowledged a
separation that was actually in effect both in practice and as a matter of
California law at the [relevant] time”). This inquiry focuses on whether
an adoptive relationship existed as a matter of fact and state law at the
relevant time; the BIA’s rule, by contrast, focuses on the amount of time
it took the state court to approve the adoption application – an irrelevant
consideration.
18 AMPONSAH V . HOLDER
immigration laws”). We cannot sustain the BIA’s decision on
this basis, however, because the agency’s actions violated
Apori’s due process rights.
Apori married in 2002. In 2005, Apori’s U.S. citizen
husband filed an I-130 spousal visa petition on Apori’s
behalf. In 2007, the United States Citizenship and
Immigration Services denied that petition, finding that Apori
had entered into “a sham marriage to obtain immigration
benefits.” The BIA affirmed in March 2008, and Apori’s
husband did not seek judicial review.
The marriage fraud issue, however, was not litigated in
the removal proceedings giving rise to this appeal. In the
immigration court, the government neither raised the question
of marriage fraud nor asserted § 1154(c) as a basis for
pretermitting Apori’s adjustment of status application, and
the immigration judge made no finding that Apori’s marriage
was fraudulent. On appeal, however, the BIA took
administrative notice of the March 2008 decision and invoked
the § 1154(c) marriage bar as an alternative ground for
pretermitting Apori’s application:
Even if the respondent were eligible as an
adopted child, she is subject to the provisions
of section 204(c) of the Act, 8 U.S.C.
§ 1154(c), barring the approval of a visa
petition on behalf of a beneficiary who has
engaged in a fraudulent marriage. It is not
disputed that the spousal visa petition filed on
behalf of the respondent was denied on
grounds of a sham marriage, and this
determination was affirmed by the Board on
March 11, 2008. The respondent has
AMPONSAH V . HOLDER 19
presented no evidence or persuasive argument
that she would be able to establish that her
marriage was not entered into for the purpose
of evading the immigration laws.
Apori complains that the BIA’s fraudulent marriage
finding violates due process because (1) she did not have a
reasonable opportunity to present evidence on the issue in the
immigration court and (2) the BIA took administrative notice
of the March 2008 decision without affording her notice or an
opportunity to be heard. We agree.
First, Apori did not have a reasonable opportunity to
present evidence on the marriage fraud issue in the
immigration court because the issue was not raised there.
The BIA’s reliance on § 1154(c) thus violated Apori’s due
process rights. See Colmenar v. INS, 210 F.3d 967, 971 (9th
Cir. 2000) (“[A]n alien who faces deportation is entitled to a
full and fair hearing of his claims and a reasonable
opportunity to present evidence on his behalf.”). The
government’s argument that the marriage fraud question was
raised in the immigration court proceedings is simply not
supported by the record.
Second, Apori’s rights were violated when the BIA took
administrative notice of the March 2008 finding without
affording Apori notice and an opportunity to contest it. When
taking administrative notice of controversial or individualized
facts, the BIA must provide an alien with notice and an
opportunity to rebut them. See Circu v. Gonzales, 450 F.3d
990, 993 (9th Cir. 2006) (en banc); Castillo-Villagra v. INS,
20 AMPONSAH V . HOLDER
972 F.2d 1017, 1028 (9th Cir. 1992). The BIA failed to do so
here.5
To reverse a BIA decision on due process grounds, the
petitioner must also demonstrate prejudice, “which means
that the outcome of the proceeding may have been affected by
the alleged violation.” Ibarra-Flores v. Gonzales, 439 F.3d
614, 620–21 (9th Cir. 2006) (quoting Colmenar, 210 F.3d at
971) (internal quotation marks omitted). Apori has shown
prejudice here. She argues that, if she had received notice of
the fraudulent marriage issue, she would have presented
evidence from her husband, her in-laws and her adoptive
mother showing that her marriage was not a fraud. This
showing is sufficient to establish prejudice. See Zolotukhin
v. Gonzales, 417 F.3d 1073, 1077 (9th Cir. 2005) (explaining
that we may “infer prejudice even absent any allegations as
to what the petitioner or his witnesses might have said”).
The government argues that it does not matter whether
Apori was denied a full and fair opportunity to litigate the
marriage fraud issue in her removal proceedings because she
is bound by the finding of fraud in her husband’s visa petition
case. Neither the IJ nor the BIA, however, mentioned
5
The BIA also appears to have exceeded the permissible scope of
administrative notice. A court in one case may not take judicial notice of
the truth of judicial findings of fact in another case. See Wyatt v. Terhune,
315 F.3d 1108, 1114 n.5 (9th Cir. 2003); 21B Charles Alan W right et al.,
Federal Practice and Procedure § 5106.4 (2d ed. 2012). Thus, although
the BIA could take administrative notice of the contents of its March 2008
decision, it could not take administrative notice of the truth of the findings
in the March 2008 decision – i.e., that Apori’s marriage was a fraud. See
8 C.F.R. § 1003.1(d)(3)(iv) (providing that the BIA may take
“administrative notice of commonly known facts such as current events
or the contents of official documents” (emphasis added)).
AMPONSAH V . HOLDER 21
collateral estoppel or res judicata, and neither tribunal gave
preclusive effect to the March 2008 decision. Thus, even if
those doctrines could apply here (a question we do not reach),
we will not apply them for the first time on appeal. See Andia
v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam)
(“In reviewing the decision of the BIA, we consider only the
grounds relied upon by that agency. If we conclude that the
BIA’s decision cannot be sustained upon its reasoning, we
must remand to allow the agency to decide any issues
remaining in the case.”).
III.
Apori’s remaining contentions are premature or without
merit. Apori’s argument that the BIA violates equal
protection by refusing to give effect to nunc pro tunc adoption
decrees while accepting nunc pro tunc principles in other
contexts is unexhausted. We therefore lack jurisdiction to
consider the argument. See Barron v. Ashcroft, 358 F.3d 674,
678 (9th Cir. 2004). Apori’s argument that the immigration
court wrongly denied her request for a continuance is vague
and conclusory. She therefore has not shown an abuse of
discretion. See An Na Peng v. Holder, 673 F.3d 1248, 1253
(9th Cir. 2012). Finally, we do not address Apori’s argument
that the IJ erred by ruling that Apori did not satisfy
§ 1101(b)’s two-year legal custody requirement. The BIA’s
decision did not rest on that ground, so the IJ’s ruling on that
issue is not before us. See Hernandez v. Ashcroft, 345 F.3d
824, 832 (9th Cir. 2003) (“Where as here, the BIA has
conducted a de novo review of the IJ’s decision, we review
only the decision of the BIA.”).
22 AMPONSAH V . HOLDER
Conclusion
We conclude that neither of the bases the BIA gave for
pretermitting Apori’s adjustment of status application can be
sustained. The BIA’s determination that Apori does not meet
the statutory definition of child was based on a blanket rule
against the recognition of nunc pro tunc adoption decrees that
constitutes an impermissible construction of the statute. The
BIA’s determination that Apori is ineligible for relief on
account of marriage fraud overlooked the due process
requirements recognized in our case law. We therefore grant
the petition for review and remand to the BIA for further
proceedings.6
PETITION GRANTED.
6
In a letter to the court filed two days before oral argument, the
government advised us that Apori’s adoptive mother’s visa petition was
denied by the BIA and asserted that the denial of the petition mooted this
case. We do not agree. First, the BIA did not identify an approved visa
petition as a prerequisite to its decision. Second, the government has not
provided any controlling authority for the proposition that an applicant for
adjustment of status is required to show an approved visa petition. See
Hernandez, 345 F.3d at 842. Third, the BIA denied the petition in
question on the very basis Apori successfully challenges in this appeal –
the BIA’s categorical refusal to recognize nunc pro tunc adoption decrees
issued after the child reaches the age of 16. See In re Doris Amponsah
Apori-Ward, No. A079 811 066 (BIA Feb. 9, 2012). The government
therefore has not met its heavy burden of establishing mootness. See
Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1017 (9th Cir.
2012) (en banc).