Stoll III v. Cowan ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 GAYLAND DURSTON JORDAN Case No. 1:20-cv-666-BAM STOLL, III, et al., 11 ORDER RE CROSS MOTIONS FOR Plaintiffs, SUMMARY JUDGMENT 12 13 v. (Doc. Nos. 14, 16) 14 UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., 15 Defendants. 16 17 Plaintiffs Gayland-Durston Jordan Stoll, III (“plaintiff-son”) and Gayland Durston Stoll, II 18 (“plaintiff-father” and collectively “Plaintiffs”) bring this civil action against Defendants Robert 19 M. Cowan, Director of United States Citizenship and Immigration Services (“USCIS”), Robert P. 20 Barr, Attorney general of the United States, Kenneth T. Cuccinelli, Senior Official Performing 21 Duties of Director of USCIS, Michael J. Creppy, Member of Board of Immigration Appeals, and 22 Gary D. Malphrus, Acting Chairman of Board of Immigration Appeals (collectively 23 “Defendants”). Plaintiffs seek judicial review of a denial of an I-130 petition by USCIS’s 24 National Benefits Center and the U.S. Department of Justice’s Board of Immigration Appeals 25 (“BIA”). Plaintiffs bring this action pursuant to § 10(b) of the Administrative Procedures Act 26 (“APA”), 5 U.S.C. § 702, et seq., seeking review of Defendant U.S. Citizenship and Immigration 27 Services' (“USCIS”) decision, and the BIA’s affirmance of that decision, denying Plaintiff- 28 1 father’s petition to classify Plaintiff-son, the beneficiary, as an immediate relative child. See 8 2 U.S.C. §1154(a)(1(A)(i) (right to petition) and §1151(b)(2)(A)(i) (definition of “immediate 3 relative”).The parties’ cross-motions for summary judgment are now pending before the Court.1 4 (Doc. Nos. 14, 16.) 5 The motions were heard before the Honorable Barbara A. McAuliffe, United States 6 Magistrate Judge, on February 12, 2021. Plaintiffs’ Counsel Gregory W. Olson appeared by 7 video conference. Defendants’ Counsel Audrey Benison Hemesath appeared by video 8 conference. Having considered the record, the parties' briefs and arguments, the relevant law, and 9 the entire record, the Court DENIES Plaintiffs’ motion for summary judgment, and GRANTS 10 Defendants’ motion for summary judgment. 11 I. BACKGROUND 12 A. Factual Background 13 Plaintiff-father is a United States citizen who is married and lives with his family in 14 Porterville, California. In August 2000, Plaintiff-father and his wife met Plaintiff-son, Gayland- 15 Durston Jordan Stoll, III, whose birth name was Jordan Carrillo Cruz, when he was three years 16 old and living in Mexico with his biological parents. AR 100, 103.2 When Plaintiff-father and his 17 wife met Plaintiff-son and his biological family, the child was suffering from various medical 18 conditions, his family was living in poverty, and his biological mother was pregnant with twins. 19 AR at 100. At the time Plaintiffs met, Plaintiff-son’s biological parents were considering placing 20 plaintiff-son in an orphanage temporarily. AR 216. Plaintiff-father and his wife consulted the 21 United States Consulate in Mexico and the Mexican Department of Social Services to ensure that 22 their actions were appropriate. AR 100, 103. 23 Plaintiff-son entered the United States on November 4, 2000. AR 72. He was brought to 24 the United States by his biological father on visitor visas. AR 216. After observing the Stolls’ 25 1 The parties have consented.to the jurisdiction of the United States Magistrate Judge for all purposes pursuant to 28 U.S.C. § 636(c). (Doc. Nos. 4, 12, and 15.) 26 27 2 “AR” refers to the Administrative Record in this case which is found at Docket no. 22 in the Court’s electronic docket. All page references to the Administrative Record are to the electronic 28 page number in the Court’s electronic docket. 1 living situation, the biological father “knew it was the right decision” and left Plaintiff-son in the 2 custody of the Stolls. AR 216. The biological mother, who could not travel due to pregnancy, left 3 the Plaintiff-son a letter telling him to be a good “son” and that he was now a part of their family. 4 AR 176. 5 Plaintiff-father and his wife obtained temporary guardianship over the child on July 17, 6 2001 and permanent guardianship on September 14, 2001. AR 178-80 and 112. Plaintiff-father 7 enrolled Plaintiff-son in his health and dental insurance. AR 106-07. 8 In or around 2006, Plaintiff-son’s biological mother asked Plaintiff-father’s wife if she 9 and Plaintiff-father wanted to adopt Plaintiff-son. AR 103. On July 10, 2009, Plaintiff-father and 10 his wife adopted Plaintiff-son eight and a half years after Plaintiff-son’s entry into the United 11 States. AR 76-78. 12 On May 27, 2014, Plaintiff-father filed an I-130 Petition for Alien Relative with USCIS 13 on behalf of Plaintiff-son. AR 72-73. On November 25, 2014, USCIS issued a Request for 14 Evidence identifying that the Hague Convention3 applied to adoptions finalized after April 1, 15 2008 and requesting additional evidence to support that the adoption was outside the convention. 16 AR 261-66. On February 16, 2015, Plaintiffs responded to the first Request for Evidence with 17 multiple affidavits, school records, medical records, legal documents from the adoption, and 18 identity documents. AR 267-70. On June 28, 2016, USCIS issued a second request for Evidence 19 identifying that the Hague convention appeared to apply to the adoption and requiring additional 20 evidence in support of the petition. AR 126-133. On September 22, 2016, Plaintiff also responded 21 to the second Request for Evidence with multiple affidavits, school records, letters from relevant 22 parties, legal documents for the adoption and guardianship proceedings, and medical records. AR 23 134. 24 On January 31, 2017, USCIS issued a Notice of Denial to Plaintiffs’ I-130 petition. AR 25 81-87. On March 3, 2017, Plaintiffs provided additional information after receiving the Notice of 26 Intent to Deny including resubmitting evidence already submitted, additional affidavits and 27 3 The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry 28 Adoption is discussed at length, supra. 1 letters, more evidence of medical care and the manner of travel to and from Mexico in 2000. AR 2 88-117. 3 The biological parents both submitted declarations during the pendency of the I-130 4 petition. Plaintiff-son’s biological mother stated that she did not see a future for him in Mexico, 5 and that she made the decision so that he would know the comfort of a warm home and never 6 have to worry about food or medical attention. AR 213, 216. Plaintiff-son’s biological father 7 stated that the Stolls entering their lives was a blessing and that the Stolls offered to be Plaintiff- 8 son’s guardian. AR 227-28. Plaintiff-son stated in his affidavit in support of the I-130 petition, 9 that his biological parents eventually distanced themselves for him to focus on his “present 10 family.” AR 227-28. 11 On April 18, 2017, USCIS issued a denial of Plaintiffs’ I-130 petition on the grounds that 12 Plaintiff-father failed to provide sufficient evidence that the adoption falls outside the scope of the 13 Hague Convention. AR 20. On May 16, 2017, Plaintiffs appealed the April 18, 2017 denial of 14 Plaintiffs’ I-130 petition to the Board of Immigration Appeals. AR 10-11. On November 19, 15 2019, the BIA dismissed the appeal finding that “the record indicates that the reason the 16 beneficiary moved from his native Mexico to the United States was to be in a familiar 17 relationship with [Plaintiff-father] and his spouse, which tends to suggest that his move to the 18 United States was ‘for the purpose of’ adoption.” AR 5. 19 B. Procedural History 20 Plaintiffs initiated this action on May 11, 2020. (Doc. 1.) On May 27, 2014, Plaintiff- 21 father’s I-130 petition was filed on behalf of plaintiff-son. In the instant action, Plaintiffs alleges 22 the following claims: (1) APA violations by USCIS Defendants of 5 U.S.C. § 701, et seq; and (2) 23 APA violations by BIA Defendants of 5 U.S.C. § 701, et seq. 24 Defendants now move for summary judgment on both of Plaintiffs’ claims. (Doc. 14.) 25 Plaintiffs opposed the motion, arguing that Defendants are not entitled to summary judgment on 26 these claims. (Doc. 19.) No reply was filed. 27 Plaintiffs concurrently move for summary judgment on all of their claims. (Doc. 16.) 28 Defendants opposed the motion. (Doc. 18.) No reply was filed. 1 II. LEGAL STANDARD OF REVIEW 2 Under the Administrative Procedure Act (“APA”), a court may set aside a final agency 3 decision if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with 4 the law.” 5 U.S.C. § 706(2)(A). Following this narrow standard of review, a district court is not to 5 replace its own judgment for that of the agency. FCC v. Fox Television Stations, Inc., 556 U.S. 6 502, 513 (2009). The district court instead is to determine whether the decision was based on a 7 consideration of the relevant facts. Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. 8 Ct. 1891, 1905 (2020). Under the APA, the Court’s review is limited to the administrative record. 9 Northwest Motorcycle Ass’n v. U.S. Dept. of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). The 10 reviewing court must ensure that the agency reviewed the relevant facts and satisfactorily 11 articulated an explanation for its determination. FCC, 556 U.S. at 513. For a court to uphold an 12 agency decision, it must find that the evidence presented before the agency “provided a 13 reasonable and ample basis for its decision.” Northwest Motorcycle Ass’n v. U.S. Dept. of 14 Agriculture, 18 F.3d 1468, 1471 (9th Cir. 1994). It is an abuse of discretion if the agency acts as if 15 “there is no evidence to support the decision or if the decision was based on an improper 16 understanding of the law.” Kazarian v. U.S. Citizenship and Immigration Services, 596 F.3d 17 1115, 1118 (9th Cir. 2010) (internal citations omitted). 18 For purposes of the motions for summary judgment, the usual “genuine dispute of 19 material fact” standard for summary judgment does not apply in an APA case. San Joaquin River 20 Group Auth. v. Nat'l Marine Fisheries Serv., 819 F. Supp. 2d 1077, 1083-84 (E.D. Cal. 2011), 21 citing Occidental Eng'g Co. v. INS, 753 F.2d 766, 769 (9th Cir.1985). Since summary judgment is 22 restricted to an administrative record, the district court’s function is to determine “whether or not 23 as a matter of law the evidence in the administrative record permitted the agency to make the 24 decision it did.” Occidental Eng’g Co., v. INS, 753 F.2d 766, 769 (9th Cir. 1985). The district 25 court is not to resolve any disputed facts in review of an administrative proceeding, even if there 26 where facts in dispute before the agency. Occidental, 753 F.2d at 766. In Judulang v. Holder, 27 565 U.S. 42, 63 (2011), an opinion considering the arbitrary and capricious nature of a Board of 28 Immigration Appeals decision, Justice Kagan wrote, “[w]e must reverse an agency policy when 1 we cannot discern a reason for it.” The function of the district court is to determine whether or 2 not as a matter of law the evidence in the administrative record permitted the agency to make the 3 decision it did. See City & Cnty. of San Francisco v. United States, 130 F.3d 873, 877 (9th Cir. 4 1997). 5 III. ADOPTION LEGAL FRAMEWORK 6 A. The Hague Convention and the Implementing Statutory Framework 7 “The Hague Convention on Protection of Children and Co-operation in Respect of 8 Intercountry Adoption (Hague Adoption Convention) is an international treaty that provides 9 important safeguards to protect the best interests of children, birth parents, and adoptive parents 10 who are involved in intercountry adoptions.” 11 https://www.uscis.gov/adoption/immigrationthrough- 12 adoption/hague-process (last visited Feb. 26, 2021) (hereinafter “Hague Convention”). The 13 purpose of the Hague Convention, as it relates to adoptions, is “to establish safeguards to ensure 14 that intercountry adoptions take place in the best interests of the child and with respect for his or 15 her fundamental rights as recognised in international law.” Hague Convention, Art. 1. The Hague 16 Convention applies where: “a child habitually resident in one Contracting State ("the State of origin") has 17 been, is being, or is to be moved to another Contracting State ("the receiving 18 State") either after his or her adoption in the State of origin by spouses or a person habitually resident in the receiving State, or for the purposes of such an adoption in 19 the receiving State or in the State of origin.” 20 Hague Convention, Art. 2. The Convention proposes to establish “safeguards” and a “system of 21 cooperation” and mutual “recognition” for intercountry adoptions—all with an eye towards 22 preventing “the abduction, the sale of, or traffic in children.” Hague Convention, art. 1, ¶ 1 23 The Hague Convention, however, is not self-executing. “[T]he Convention creates 24 obligations only for State Parties and ‘does not by itself give rise to domestically enforceable 25 federal law’ absent ‘implementing legislation passed by Congress.’” Bond v. United States, 572 26 U.S. 844, 851, 134 S.Ct. 2077, 2084, 189 L.Ed.2d 1 (2014) (plurality) (quoting Medellin v. Texas, 27 552 U.S. 491, 505 n. 2, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008)). 28 Thereafter, in 2000, Congress enacted the Intercountry Adoption Act of 2000, 42 U.S.C. § 1 14901 et seq., (“IAA”) to implement the Hague Convention. The IAA's purpose is to: “protect the rights of, and prevent abuses against, children, birth families, and 2 adoptive parents involved in adoptions (or prospective adoptions) subject to the 3 Convention, and to ensure that such adoptions are in the children's best interests[,] and to improve the ability of the Federal Government to assist United States citizens 4 seeking to adopt children from abroad and residents of other countries party to the Convention seeking to adopt children from the United States.” 5 Id. §§ 14901(b)(2), (b)(3). 6 The IAA added a third definition of “child” to the Immigration and Nationality Act.4 7 Tracking the language of article 2 of the Hague Convention, the IAA added a definition of “child” 8 as a person younger than 16 years of age at the time a petition is filed on the child's behalf to 9 accord a classification as an immediate relative under [ 8 U.S.C. § 1151(b)], who has been 10 adopted in a foreign state that is a party to the Convention on Protection of Children and Co- 11 operation in Respect of Intercountry Adoption, ... or who is emigrating from such a foreign state 12 to be adopted in the United States. 8 U.S.C. § 1101(b)(1)(G)(i) (emphasis added). 13 B. The Regulatory Framework Promulgated under the IAA 14 In 2007, USCIS promulgated an interim rule to implement the provisions of the IAA. See 15 Classification of Aliens as Children of United States Citizens Based on Intercountry Adoptions 16 Under the Hague Convention, 72 Fed. Reg. 56,832 (Oct. 4, 2007) (codified at 8 C.F.R. pts. 103, 17 204, 213a, 299, and 322). The Hague Convention itself took effect on April 1, 2008. See Deposit 18 of Instrument of Ratification by the United States of the Hague Convention on Protection of 19 Children and Cooperation in Respect of Intercountry Adoption, 72 Fed. Reg. 71,730 (Dec. 18, 20 4 The Immigration and Nationality Act (INA”) affords preferential immigration status to an alien 21 who is an “immediate relative” of a United States citizen. See 8 U.S.C. § 1154(b). The INA allows a United States citizen to petition to confer citizen status as an immediate relative to his or 22 her “child.” See id. § 1154(a)(1)(A)(i) (right to petition); see also id. § 1151(b)(2)(A)(i) 23 (definition of “immediate relative”). Immediate relative status is applied for via the filing of a Form I-130 Petition for Alien relative. (Doc. 14, p. 3.) Until 1999, the Immigration and 24 Nationality Act contained only two definitions of “child” related to adopted children. First, section 101(b)(1)(E) defined “child” as a person “adopted while under the age of sixteen years if 25 the child has been in legal custody of, and has resided with, the adopting parent or parents for at least two years.” Id. § 1101(b)(1)(E)(i). Second, section 101(b)(1)(F) broadened the definition of 26 “child” by eliminating the custody and residency requirement if the child qualified as an “orphan” 27 under the Act. Id. § 1101(b)(1)(F)(i). See generally, Fingerson v. Dep't of Homeland Sec., 198 F. Supp. 3d 786, 789–90 (W.D. Ky. 2016). As stated above, the IAA added a third definition to give 28 preferential immigration status to adopted children from a Hague Convention country. 1 2007).5 The interim rule explains the relationship between the longstanding definition of child 2 codified at 8 U.S.C. § 1101(b)(1)(E) and the new definition of child codified at 8 U.S.C. § 3 1101(b)(1)(G). See Classification of Aliens as Children of United States Citizens Based on 4 Intercountry Adoptions Under the Hague Convention, 72 Fed. Reg. at 56,832–35; See generally, 5 Fingerson v. Dep't of Homeland Sec., 198 F. Supp. 3d 786, 791 (W.D. Ky. 2016). 6 The regulations define what is considered a Hague Convention adoption. A Hague 7 Convention adoption is one, on or after the Convention effective date, where the child, habitually 8 resident in a convention country, will move, or has moved, from one Convention country to 9 another for purposes of adoption. 8 C.F.R. § 204.303 (“Convention adoption.”) The section 10 defining a Hague Convention adoption states: 11 Convention adoption, … , means the adoption, on or after the Convention effective 12 date, of an alien child habitually resident in a Convention country by a U.S. citizen habitually resident in the United States, when in connection with the adoption the 13 child has moved, or will move, from the Convention country to the United States. Id. 14 15 Under the regulations, the Hague Convention applies to domestic adoptions when the 16 adoptee is a citizen of another country where the Hague Adoption Convention is also in force. 17 The regulations state that if a child is a citizen of a Hague Convention country (other than the 18 United States) (8 C.F.R. § 204.301,) and is present in the United States for adoption, the child 19 should generally be deemed to be habitually resident in the child’s country of citizenship, even 20 though the child is already in the United States. 8 C.F.R. § 204.303(b) (Habitual residence).6 A 21 5 The United States signed the Convention on March 31, 1994 and the President transmitted it to 22 the Senate for its advice and consent on June 11, 1998. (S. Treaty Doc. 105-51 at III (1998)). On September 20, 2000, the Senate gave its advice and consent to the ratification of the Convention, 23 subject to certain declarations, and on October 6, 2000, Congress enacted the implementing legislation for the Convention, the Intercountry Adoption Act of 2000, Public Law 106-279, 42 24 U.S.C. 14901-14952 (the IAA). The President signed the instrument of ratification on November 25 16, 2007. Deposit of Instrument of Ratification by the United States of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, 72 FR 71730-03. 26 6 8 C.F.R. § 204.303(b) Habitual residence: 27 (b) Convention adoptees. A child whose classification is sought as a Convention adoptee is, generally, deemed for purposes of this subpart C [Intercountry Adoption of a Convention 28 Adoptee] to be habitually resident in the country of the child's citizenship. .. . . . The child will 1 child is habitually resident in the county of the child’s citizenship. Thus, even if a child is present 2 in the United States, the child is habitually resident in the county of the child’s citizenship. 3 It is no longer possible to obtain a domestic adoption for a child whose country of 4 citizenship is a Convention country, and then, seek to comply with immigration regulations for 5 the adoption thereafter. If a child present in the United States is adopted on or after the Hague 6 Convention date, but is a habitual resident (i.e., citizen) of a Convention county, the USCIS will 7 not approve an I-130 form. See 8 C.F.R. § 204.2(d)(2)(vii)(F). This section provides: 8 For purposes of paragraph (d)(2)(vii)(D) of this section, USCIS will not approve a 9 Form I–130 under section 101(b)(1)(E) of the Act on behalf of an alien child who 10 is present in the United States based on an adoption that is entered on or after the Convention effective date, but whose habitual residence immediately before the 11 child's arrival in the United States was in a Convention country. However, the U.S. citizen seeking the child's adoption may file a Form I–800A and Form I–800 under 12 8 CFR part 204, subpart C. 13 8 C.F.R. § 204.2(d)(2)(vii)(F). Thus, the regulations would not, and did not in this case, permit 14 the USCIS to approve Plaintiff-father’s I-130 form. 15 IV. DISCUSSION AND ANALYSIS 16 A. Whether the Hague Convention Applies 17 A major dispute in this case is whether the Hague Convention applies to the Plaintiff- 18 father/Plaintiff-son adoption. Plaintiff contends that the BIA should not have applied the Hague 19 Convention to Plaintiff-son because Plaintiff-son entered the United States before the effective 20 date of April 1, 2008. (See Motion, Doc. 17, p. 13.) Plaintiffs argue that the Hague Convention 21 is not designed to apply to people who are already living in the United States and that any 22 “intent” at the time the child came into the United States is not in the language of the statute and 23 not in the language of the immigration regulations. The government argues that Plaintiff-son’s 24 adoption fell within the scope of the Hague Convention. 25 26 not be considered to be habitually resident in any country to which the child travels temporarily, 27 or to which he or she travels either as a prelude to, or in conjunction with, his or her adoption and/or immigration to the United States. (emphasis added). 28 1 It is undisputed that the adoption of Plaintiff-son occurred after the effective date of the 2 Hague Convention. The Hague Convention became effective on April 1, 2008. See 8 C.F.R. 3 §204.301 (definition of “effective date”). Plaintiff-son’s adoption occurred on July 10, 2009. 4 The Hague Adoption Convention applies to domestic adoptions when the adoptee is a citizen of 5 another country where the Hague Convention is also in force. Both the United States and Mexico 6 are signatories to the Hague Convention. At the time of the adoption, it is undisputed that 7 Plaintiff-father was a citizen of the United States and that Plaintiff-son was a citizen of Mexico. 8 At issue in this case is the Plaintiff-father’s challenge to the term “habitually resident,” 9 contained in the regulations; that the BIA found Plaintiff-son was a habitual resident of Mexico 10 when in fact Plaintiff-son had been in the United States for some nine (9) years before the 11 adoption. As Plaintiffs argue, Plaintiff-son should have been found to be habitually resident of the 12 United States. Plaintiff argues that the Hague Convention does not apply where both the adoptive 13 parents and the adoptive child are residents of the same country. 14 Neither the Hague Convention itself nor its implementing legislation, the IAA, offers a 15 definition of “habitual resident” for purposes of intercountry adoptions. The Code of Federal 16 Regulations, however, provides a definition of “habitual residence” of the child. The regulations 17 define “habitual residence” as the child’s country of citizenship. See 8 C.F.R. § 204.303(b) 18 states: (b) Convention adoptees. A child whose classification is sought as a Convention 19 adoptee is, generally, deemed for purposes of this subpart C [Intercountry Adoption of a Convention Adoptee] to be habitually resident in the country of the child's 20 citizenship. .. . . . The child will not be considered to be habitually resident in any country to which the child travels temporarily, or to which he or she travels either as a 21 prelude to, or in conjunction with, his or her adoption and/or immigration to the United States. 22 8 C.F.R. § 204.303(b) (Habitual residence) (emphasis added). 23 The child’s “habitual residence” under the Hague Convention’s implementing regulations is 24 defined as the child’s country of citizenship; it is not the child’s country of domicile.7 If the 25 7 There is an exception to the country of citizenship for purposes of “habitual residence,” which is 26 not relevant in this case. The child will be deemed habitually resident in that other country, rather 27 than in the country of citizenship where the Central Authority of the sending country determines that the child’s status in the receiving country is sufficiently stable for it to exercise jurisdiction; 28 the child may be considered “habitually resident” in the receiving country. See 8 C.F.R. 1 prospective adoptive parents are considered “habitual residents” of the United States, and the 2 child is considered a “habitual resident” of a different Convention country (i.e., citizen), and the 3 child will be moving, or has moved, from one Convention country to another for purposes of 4 adoption, the Hague Adoption Convention governs the adoption.8 Thus, the term “habitually 5 resident” for purposes of the Hague Convention adoptions in the United States focuses on country 6 of citizenship. See generally 8 C.F.R. § 204.303(b). 7 For purposes of Plaintiff-father’s challenge to the denial of the 1-130 Form, the 8 regulations state that an I-130 will not be approved and that the Hague Convention applies even 9 when the child to be adopted is present in the U.S. and is being adopted by prospective adoptive 10 parents also present in the United States. 8 CFR § 204.2(d)(2)(vii)(D) and (F). 11 Based on the facts of this case, the Hague Convention would apply. The Hague 12 Convention became effective on April 1, 2008 before Plaintiff-son’s adoption on July 10, 2009. 13 The regulations define that the child is habitually resident of the country of citizenship and not of 14 the child’s domicile. Plaintiff-son’s country of citizenship was Mexico and Plaintiff-father was a 15 citizen of the United States. Therefore, the Hague Convention would generally apply. 16 The Court now turns to Plaintiffs’ specific arguments to determine whether this case is 17 taken outside of the Hague Convention. 18 B. Plaintiffs’ Claim that the regulations promulgated by USCIS exceed their Grant 19 of Authority 20 Plaintiff claims that the USCIS regulations defining habitual residence are impermissible 21 agency action, expanding the scope of the Hague Convention and the IAA. Plaintiff-father argues 22 23 §204.303(b). If an affirmative ruling from the Central Authority of the child’s country of citizenship is obtained, a child is no longer a habitual resident of the country of citizenship and 24 instead is a habitual resident of the United States where the child is domiciled. From the Court’s review of secondary authority, it appears that Mexico, as a regular practice, does not make any 25 such affirmative ruling. Karen Stoutamyer Law, Dan Berger, Massiell Tercero-Parker, and Emily Ferron, Intercountry Adoption, Domestic Adoption and the Post-Hague Landscape, AILA 26 Immigration Practice Pointers (2012 27 8 “Convention adoptee” means a child habitually resident in a Convention country who is eligible 28 to immigrate to the United States on the basis of a Convention adoption. 8 C.F.R. § 204.301. 1 that the “habitual residence” of Plaintiff-son should have been determined to be the United States 2 because Plaintiff-son had been living in the United States since the year 2000. 3 Here, Plaintiff challenges the validity of the regulations. When a court determines if an 4 agency’s regulation is valid, the court applies the two-step Chevron analysis. Chevron U.S.A. . v. 5 Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). Following the two-step approach of the 6 Supreme Court in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., the Court must first 7 determine whether Congress has directly spoken to the precise question at issue. See Humane 8 Soc. of U.S. v. Locke, 626 F.3d 1040, 1054 (9th Cir. 2010). If the statute is silent or ambiguous 9 with respect to the specific issue, the Court must then determine whether the agency's answer is 10 based on a permissible construction of the statute. Id. “If a statute is ambiguous, and if the 11 implementing agency's construction is reasonable, Chevron requires a federal court to accept the 12 agency's construction of the statute, even if the agency's reading differs from what the court 13 believes is the best statutory interpretation.” Id. 14 Plaintiffs argue that Congress has not spoken on the issue of habitual residence as there is 15 no such “habitual residence” requirement in connection with convention adoptions stated in the 16 IAA. Plaintiff argues that the IAA statutory definition does not include “habitual resident.” 17 This Court agrees with Plaintiff in the first step of the Chevron analysis. The IAA does not 18 include language or definition of “habitual resident” of a convention adoption, or anywhere else 19 in the Act. See 42 U.S.C.A. § 14902(10) (“The term “Convention adoption” means an adoption of 20 a child resident in a foreign country party to the Convention by a United States citizen, or an 21 adoption of a child resident in the United States by an individual residing in another Convention 22 country.”) (emphasis added.) Therefore, the statute is silent or ambiguous on habitual residence, 23 and Congress has not spoken of the issue of habitual residence. 24 Turning to the second step of Chevron, the Court must then determine whether the 25 agency's answer is based on a permissible construction of the statute. Plaintiffs allege that 26 USCIS’ regulation impermissibly expanded the definitions of “convention adoption” and “child,” 27 by adding the habitual resident requirement and the “has moved” language to the definition of a 28 1 child.9 Plaintiff claims that the IAA (42 U.S.C. §14902(10)) gives a clear definition of what a 2 “convention adoption” is, which does not include the words “habitual residence.” (See Motion at 3 Doc. 17, p.18.) 4 The Court finds that implementing regulations are based on a permissible construction of 5 the statute. While the IAA does not include the term “habitual residence” or provide a definition 6 of habitual residence, the regulations are not in conflict with the Convention and intent of 7 Congress. The Hague Convention, itself, uses the language of “habitual resident” and the 8 language “has moved” in its classification of a Convention adoption.10 The regulations provide 9 continuity and consistency with the Convention, where the IAA fails to explicitly define the 10 terms. 11 The regulations provide permissible definitions for implementing the Hague Convention 12 under the IAA. Northwest Ecosystem Alliance v. United States Fish and Wildlife Service, 475 13 F.3d 1136, 1141 (9th Cir.2007). “Under Chevron's classic formulation, if ... there is an express 14 delegation of authority [by Congress] to the agency to elucidate a specific provision of the statute 15 by regulation, [then] [s]uch legislative regulations are given controlling weight unless they are 16 arbitrary, capricious, or manifestly contrary to the statute.” Id. Here, the IAA expressly 17 delegated authority to the Secretary, along with the Attorney General, to promulgate regulations. 18 42 U.S.C. §14941(a)(1) (“the Secretary, in consultation with the Attorney General, shall issue 19 regulations that establish procedures and requirements in accordance with the Convention . . .”) 20 The Court gives controlling weight to the regulations defining habitual residence because of the 21 9 See 8 C.F.R. § 204.301 defining, “Convention adoption” as: “Convention adoption, . . . means 22 the adoption, on or after the Convention effective date, of an alien child habitually resident in a Convention country by a U.S. citizen habitually resident in the United States, when in connection 23 with the adoption the child has moved, or will move, from the Convention country to the United States.” (emphasis added.) This phrase “habitually resident” is used throughout the implementing 24 regulations. 25 10 See Hague Convention, art 2 ¶ 1 (emphasis added): “where a child habitually resident in one Contracting State ("the State of origin") has 26 been, is being, or is to be moved to another Contracting State ("the receiving State") 27 either after his or her adoption in the State of origin by spouses of a person habitually resident in the receiving State, or for the purposes of such an adoption in the receiving 28 State or in the State of origin.” 1 express delegation of authority by Congress to promulgate regulations to further the requirements 2 of the Convention. “Chevron deference applies “when it appears that Congress delegated 3 authority to the agency generally to make rules carrying the force of law, and that the agency 4 interpretation claiming deference was promulgated in the exercise of that authority.” Nw. 5 Ecosystem All. v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1141 (9th Cir. 2007). 6 The regulations are also not contrary to the intent of Congress. The regulations are 7 consistent with the findings and purposes of the IAA. Congress found that there was a need for 8 “uniform interpretation and implementation of the Convention in the United States and abroad,” 9 and “to protect the rights of . . ., children, birth families, and adoptive parents involved in 10 adoptions (or prospective adoptions) subject to the Convention, and to ensure that such adoptions 11 are in the children's best interests.” 42 U.S.C. §14901(a)(1) and (b)(2). The habitual residency 12 requirement, and the USCIS regulations defining that requirement, provide consistency in 13 intercountry adoptions by looking at the child’s citizenship rather than the child’s physical 14 location. The regulations provide a reasonable definition of how a child’s residence is classified 15 consistent with the intent of Congress. Defining “habitual residence” as the citizenship of the 16 child ensures that contracting parties to the Hague Convention, both the country of origin and 17 receiving country, will have input into intercountry adoptions. See e.g., Fingerson v. Dep't of 18 Homeland Sec., 198 F. Supp. 3d 786, 793 (W.D. Ky. 2016) (USCIS's regulations, including 8 19 C.F.R. § 204.2(d)(2)(vii), promote Congress's goals in at least two ways. First, such an approach 20 avoids the potential foreign relations consequences if a citizen were to adopt a foreign national 21 temporarily in the United States without the country of origin's consent. Second, USCIS's 22 interpretation encourages uniform application and guards against possible avoidance of the 23 Convention's safeguards by looking to the child's citizenship rather than to the happenstance of 24 child's temporary location.) Therefore, the Court finds that the regulations are not outside the 25 statutory framework or against the intent of Congress. 26 C. Plaintiffs’ Claim that the Hague Convention Should not Apply Because Plaintiff- 27 son entered the United States Prior to the Convention Effective Date 28 Plaintiffs argue that the regulations impermissibly apply the Hague Convention 1 retroactively to children who entered the United States prior to the effective date in compliance 2 with then-applicable laws, but were adopted after the effective date. (Motion, Doc. 17, p. 13.) 3 Defendants argue that the date of adoption is controlling, not the date the child entered the United 4 States. Defendants further argue that the regulations do not focus on the child’s location in 5 determining if the Convention applies, but rather focus on the child’s citizenship. As Defendants 6 argue, the facts that determine applicability of the Convention to an adoption include: (1) that the 7 adopting parent is a United States Citizen, (2) that the child adoptee is “habitually resident” in a 8 Convention country, and (3) the adoption was finalized after the Convention took effect. 9 Defendants’ argument is persuasive. Having determined that the USCIS regulations 10 involving the “habitual resident” and “has moved” language are valid regulations; those 11 regulations apply to this case. The Stolls are United States citizens, Plaintiff-son is a citizen of 12 Mexico and is deemed habitually resident (i.e, citizen) there. Plaintiff-son’s adoption was 13 finalized after the Hague Convention effective date. The effective date of the Convention was 14 April 1, 2008, and the adoption was finalized on July 10, 2009. (AR 76-77.) Under these facts, 15 there is no retroactive application of the Hague Convention or the regulations in this case. The 16 regulations apply to all adoptions entered into after the effective date of the Hague Convention 17 regardless of the child’s physical location. Where an agency promulgates a regulation filling in a 18 gap in a statute it enforces, “[s]uch legislative regulations are given controlling weight unless they 19 are arbitrary, capricious, or manifestly contrary to the statute.” Chevron, U.S.A., Inc. v. Nat. Res. 20 Def. Council, Inc., 467 U.S. at 844. 21 Plaintiff-son argues that the Hague Convention is retroactive to him because he entered 22 the United States prior to the effective date of the Hague Convention, and in compliance with 23 applicable law at that time. (Motion, Doc. 17, p. 13.) Plaintiffs argue that the statutory provisions 24 establishing the Secretary's general rulemaking power contain no express authorization of 25 retroactive rulemaking, citing Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 213, 109 S. Ct. 26 468, 474, 102 L. Ed. 2d 493 (1988). In Bowen, however, the express language in the regulation 27 sought to apply the regulation retroactively to a time before Congress had changed the statute. 28 The result was an application of the regulation which negated Congress’ action, against the 1 express legislative history forbidding such retroactivity. Bowen, 488 U.S. 207 and 214. 2 No such express retroactive language, as in Bowen, exists in Plaintiffs’ case. No 3 regulation says that the Hague Convention has retroactive effect on any adoption prior to the 4 effective date. In fact, the regulations are explicit that they apply to adoptions “on or after the 5 Convention effective date.” See 8 C.F.R § 204.301 (convention adoption; apply “on or after the 6 Convention effective date.”); 8 C.F.R. § 204.2(d)(2)(vii)(D) (child is habitually resident in 7 country of citizenship unless “the adoption was completed before the Convention effective date”); 8 8 C.F.R. § 204.2(d)(2)(vii)(F) (“based on an adoption that is entered on or after the Convention 9 effective date”). 10 The regulations apply to adoptions after April 1, 2008, the effective date of the Hague 11 Convention. Plaintiff-son was adopted after April 1, 2008 and was adopted on July 10, 2009. 12 The application of a Hague Convention regulations to an adoption, post effective date of the 13 Hague Convention, is not a retroactive application of the regulations. The Court agrees with the 14 government that “it does not matter that [Plaintiff-son] entered the United States before the treaty 15 effective date.” (Opposition, Doc. 18, p.5.) Whatever “rights” Plaintiff-son had when he entered 16 the country were mooted by implementation of the Hague Convention and the promulgation of 17 the Hague Convention regulations. There is no argument by Plaintiffs, and the Court is not cited 18 to any authority, that Plaintiff-son had any vested rights to be adopted outside of the regulations 19 implementing the Hague Convention by his mere presence in the United States, even though his 20 presence was lengthy. The Court is not aware of any authority that Plaintiff-son had a vested right 21 to be adopted in 2009 under the then-laws in effect at the time he entered the United States in 22 2000. 23 D. The BIA’s Review of Plaintiff’s Petition 24 1. The Court Reviews the BIA Decision and not the USCIS Decision 25 Plaintiffs in their first cause of action challenge the 2017 decision by USCIS—the 26 decision that was eventually appealed administratively to the BIA. (Complaint, Doc. 1, ¶ ¶ 37- 27 42.) The BIA’s review of the USCIS decision was de novo. AR 1-22 p. 1 (“We review all 28 questions arising in appeals from decisions of the [USCIS] officers de novo.”) The BIA’s 1 decision does not indicate that the BIA adopted or incorporated the USCIS decision. AR 1-22. 2 Therefore, this Court reviews the decision of the BIA, not the underlying USCIS decision. See 3 generally, Salazar-Paucar v. I.N.S., 281 F.3d 1069, 1073 (9th Cir. 2002) (When the “BIA 4 conducts a de novo review of the IJ's [Immigration Judge] decision,” the district court reviews 5 “the BIA's decision rather than the IJ's, except to the extent that the BIA expressly adopts the IJ's 6 ruling.”) amended by 290 F.3d 964 (9th Cir. 2002); Alaelua v. I.N.S., 45 F.3d 1379, 1382 (9th 7 Cir. 1995) (reviewing both the BIA and Immigration Judge's decisions when it is clear that the 8 BIA decision “clearly incorporates” the Immigration Judge's decision). Thus, the Court reviews 9 the decision of the BIA and not that of the USCIS. 10 2. Summary of the BIA Opinion 11 On November 19, 2019, the BIA found that the Plaintiff-father “did not submit sufficient 12 evidence to establish that the beneficiary’s adoption falls outside the scope of the Hague 13 Convention.” AR 3. The BIA found that under the Regulations governing petitions filed on behalf 14 of an adopted child state that a Form 1-130 may not be filed for a child adopted after the Hauge 15 Convention effective date of April 1, 2008, if the child was habitually resident in a convention 16 country. AR 3-4. A child present in the United States is generally considered to remain a habitual 17 resident of the country of citizenship, citing 8 CFR 204.303(b). Since the adoption was finalized 18 after April 1, 2008 (Hague Convention effective date in U.S.), the Hague Convention applies. 19 Plaintiff-father did not demonstrate that “at the time of the [plaintiff-son] entered the United 20 States, the purpose of the entry was for reasons other than adoption,” citing USCIS Policy 21 Memorandum, ‘Criteria for Determining Habitual Residence in the United States for Children 22 from Hague Convention Countries.” AR 4; (Doc. 14-1 (USCIS Policy Memorandum)). 23 The BIA found that Plaintiff-father did not establish that at the time the Plaintiff-son 24 entered the United States, the purpose of the entry was for reasons other than adoption.11 The 25 BIA evaluated the evidence submitted and found that the “evidence in the record indicates that 26 the reason the beneficiary moved from his native Mexico to the United States was to be in a 27 28 11 Stated another way, the purpose of plaintiff son coming to the United States was for adoption. 1 familiar relationship with the [Plaintiff-father] and his spouse which tends to suggest that his 2 move to the United States was ‘for the purposes of’ adoption.’” AR 5 (footnote omitted.) The 3 BIA affirmed the USCIS decision denying the I-130 petition because Plaintiff-father “did not 4 establish that at the time the [Plaintiff-son] entered the United States, the purpose of the entry was 5 for reasons other than adoption, and as such the [ Hague] Convention applies.” AR 5. The BIA 6 affirmed the USCIS’s denial of the I-130 petition. 7 3. USCIS Policy Memorandum - Intent to Adopt – and Deference 8 In response to the Court’s questions at oral argument as to the source of “intent to adopt” 9 language (or as the BIA states “for purposes of” adoption) used by the BIA in its decision, and 10 where was this language in the implementing regulations, both parties identified the USCIS’ 11 Policy Memorandum of November 20, 2017 as the source of the “intent to adopt” language relied 12 upon by the BIA. (Policy Memo at Doc. 14-1.) 13 The USCIS Policy Memorandum, Criteria for Determining Habitual Residence in the 14 United States for Children from Hague Convention Countries (“Policy Memo”) adopted prior 15 guidance and “clarifies the applicable time frames and what evidence can satisfy the intent, 16 residence and notice criteria.” (See Policy Memo at Doc. 14-1.) The “scope” of the Policy Memo 17 “applies to and binds all USCIS employees adjudicating an immediate relative petition filed for 18 an adopted child from a Hague Convention county who is physically present in the United 19 States.” (Doc. 14-1, p.2) (emphasis added.) The Policy Memo states that child is generally 20 deemed to be habitually resident in a Hague Adoption Convention country if the child is a citizen 21 of that Convention country. A child’s country of citizenship is usually the child’s country of 22 origin (COO). (Doc. 14-1, p.2.) According to the Policy Memo, “USCIS is a competent 23 authority that can make a factual determination of habitual residence when a child is present in 24 the United States.” (Doc. 14-1, p.3.) USCIS may determine a child living in the United States is 25 habitually resident in the United States, and if such determination is made, the Hague Convention 26 does not apply. (Doc. 14-1, p. 3.) As pertinent to this case, the Policy Memo provides that 27 USCIS may approve a Form 1-130 if “at the time the child entered the United States, the 28 purpose(s) of the entry were for reasons other than adoption (intent criteria).” (Doc. 14-1, p. 4) 1 (emphasis in original). The Policy Memo criteria explicitly provides the test of intention. 2 “USCIS will review the case to determine whether the child entered the U.S. for adoption 3 purposes.” (Doc. 14-1, p. 7.) The Policy Memo provides a multi-bullet point list of “Evidence of 4 Intent Criteria” and evidence USCIS will consider to determine whether the child entered the U.S. 5 for purposes of adoption, such as: the child’s schooling, reason for travel to U.S., adoptive 6 parents, contacts with child, timeline and events which led to child’s availability for adoption, 7 birth parents’ ability to care of child, and declaration of adoptive parents intent. (Doc. 14-1 p.7.) 8 The petitioning adoptive parents must submit with Form I-130 an affidavit describing the child's 9 circumstances prior to entry to the U.S., a list of the individuals who cared for the child since the 10 time of entry and their relationship to the child, a description of any contact that the adoptive 11 parents had with the child. The adoptive parents must also declare that on the date of the child's 12 U.S. entry, they “did not intend to adopt the child or circumvent the Hague Adoption Convention 13 procedures.” (Doc. 14-1, p. 8.) 14 In Wilderness Watch, Inc. v. U.S. Fish & Wildlife Service, 629 F.3d 1024 (9th Cir. 2010), 15 the Ninth Circuit stated that policy statements are not entitled to Chevron deference. 16 “Interpretations such as those in opinion letters—like interpretations contained in policy 17 statements, agency manuals, and enforcement guidelines, all of which lack the force of law—do 18 not warrant Chevron-style deference.” Wilderness Watch, Inc , 629 F.3d at 1034. “Such views, ... 19 even if not authoritative for purposes of Chevron, are entitled to so-called Skidmore deference 20 insofar as they ‘constitute a body of experience and informed judgment to which courts and 21 litigants may properly resort for guidance.’ ” Id. (quoting Skidmore v. Swift & Co., 323 U.S. 134, 22 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). Chevron did not eliminate Skidmore 's holding that an 23 agency's interpretation may merit some deference whatever its form, given the “specialized 24 experience and broader investigations and information” available to the agency, and given the 25 value of uniformity in its administrative and judicial understandings of what a national law 26 requires. United States v. Mead Corp., 533 U.S. 218, 234–35, 121 S. Ct. 2164, 2175, 150 L. Ed. 27 2d 292 (2001); see generally Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121, 136, 117 S.Ct. 28 1953, 138 L.Ed.2d 327 (1997) (reasonable agency interpretations carry “at least some added 1 persuasive force” where Chevron is inapplicable); Reno v. Koray, 515 U.S. 50, 61, 115 S.Ct. 2 2021, 132 L.Ed.2d 46 (1995) (according “some deference” to an interpretive rule that “do[es] not 3 require notice and comment”); Martin v. Occupational Safety and Health Review Comm'n, 499 4 U.S. 144, 157, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991) (“some weight” is due to informal 5 interpretations though not “the same deference as norms that derive from the exercise of ... 6 delegated lawmaking powers”). 7 Both parties cite to the Policy Memo as “binding” authority for purposes of determining 8 “intent.” Yet, the Court finds that the Policy Memo does not constitute binding authority because 9 it is a policy statement. It is not entitled to Chevron deference. The Court therefore applies 10 Skidmore deference. Under that standard, “the deference to be accorded ... depends upon ‘the 11 thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier 12 and later pronouncements, and all those factors which give it power to persuade, if lacking power 13 to control.’ ” Wilderness Soc'y, 353 F.3d at 1060 (quoting Mead, 533 U.S. at 228, 121 S.Ct. 14 2164). 15 In the absence of any judicial or administrative guidance as to how to approach the 16 question presented in this case, the Policy Memo presents a useful legal standard for resolving the 17 instant controversy. Specifically, the Policy Memo frames the question of how to determine if a 18 child is “habitually resident” in the United States for purposes of the Hague Convention, when the 19 child has been residing in the United States. Employing a legal standard focused on a case-by- 20 case factual evaluation of the circumstances surrounding a child’s entry and residence in the 21 United States is entirely consistent with the purpose underpinning Hague Convention. See also 22 Monasky v. Taglieri, 140 S. Ct. 719, 723 (2020) (a child's habitual residence depends on the 23 totality of the circumstances specific to the case). 24 4. Plaintiffs’ Claim that the BIA used an Incorrect Standard of Review 25 Plaintiffs challenge the BIA’s decision arguing that the BIA used a standard of proof 26 higher than that of a preponderance of the evidence. (Doc. 17 at 10; Doc. 19 at 8.) Plaintiffs 27 contend that they established by substantial evidence that Plaintiff-son’s purpose for entering the 28 United States was not for adoption. 1 The parties do not dispute that the BIA reviews the Plaintiffs’ petition under a 2 preponderance of the evidence standard. Both parties cite Matter of Chawathe, 25 I & N Dec. 369 3 (B.I.A. Oct. 20, 2010) for the proposition that preponderance of the evidence standard applies for 4 review by the BIA. 5 In challenging that the BIA used a higher standard of proof, Plaintiffs’ complaint refers to 6 two phrases used by the BIA: (1) “. . . the record evidence tends to suggest an intention to adopt 7 the beneficiary” (Doc. 1, ¶¶45, 48; AR 1-22 p. 2); and (2) “. . . which tends to suggest that his 8 move to the United States was ‘for the purposes of’ adoption.” (Doc. 1, ¶¶45, 48; AR 1-22 p. 3). 9 Plaintiffs argue that the “tends to suggest” language indicates a burden of proof higher than that 10 of preponderance of the evidence. (Doc. 1, ¶ ¶45, 48.) 11 This Court’s review of the legal question of whether the BIA applied an incorrect standard 12 of review adjudicating an I-130 petition (thereby acting “not in accordance with law”) is de novo. 13 Zerezghi v. United States Citizenship & Immigration Servs., 955 F.3d 802, 807 (9th Cir. 2020). 14 Here, the BIA decision does not specifically identify the standard of review it was 15 employing. The BIA decision does not explicitly state that BIA is reviewing the petition under the 16 preponderance of the evidence standard (or under any other standard for that matter.) Rather, 17 BIA completed a de novo review of the record and identified the records and evidence it had 18 reviewed and used the terminology that the evidence “tends to suggest” that entry was for 19 purposes of adoption. AR 3. While the decision is not as articulate as it could be, the BIA is 20 entitled to the presumption of regularity unless Plaintiffs can provide clear evidence to the 21 contrary. The presumption is the BIA knew it was required to use the preponderance of the 22 evidence standard of review. Agency officials are entitled to a presumption that they discharged 23 their official duties properly and according to the law. FCC v. Schreiber, 381 U.S. 279, 296 24 (1965). Without a showing of clear evidence that the official did not act properly or according to 25 the law, Courts will apply the presumption of regularity. United States v. Chem. Foundation, Inc., 26 272 U.S. 1, 14-15 (1926); Kolhi v. Gonzalez, 473 F.3d 1061, 1068 (9th Cir. 2007). 27 Plaintiffs have not provided any evidence, other than the word choice of “tends to 28 suggest,” to support that the BIA used an incorrect standard of proof. In the context of the BIA’s 1 decision, the words “tend to suggest” mean “what the evidence shows:” (1) “we agree with the 2 Director that the [Plaintiff-father] did not establish that at the time the [Plaintiff-son] entered the 3 United states, the purpose of the entry was for a reason other than adoption. Although the 4 [Plaintiff-father] did not adopt the beneficiary until almost 9 years after the [Plaintiff-son’s] 5 arrival to the United States, the record evidence tends to suggest an intention to adopt the 6 [Plaintiff-son],” AR 4 (emphasis added); and (2) that “the record indicates that the reason the 7 beneficiary moved from his native Mexico to the United States was to be in a familiar 8 relationship with [Plaintiff-father] and his spouse, which tends to suggest that his move to the 9 United States was ‘for the purpose of’ adoption.” AR 5 (emphasis added). This language does 10 not establish a standard higher than preponderance of the evidence. It certainly does not show a 11 higher standard, such as probable cause or clear and convincing. In context, “tends to suggest” 12 means the evidence is more likely than not, which is consistent with the preponderance standard. 13 Regardless of whether the BIA explicitly states that it used the preponderance of the 14 evidence standard in its decision, the Court will not overturn the BIA holding if it is based on the 15 relevant facts, and the evidence in the record provided a reasonable and ample basis for the 16 decision. Plaintiff’s basic argument is, not that a higher standard of proof was used, but that the 17 weight of the evidence, if properly evaluated, would have resulted in a favorable decision to 18 Plaintiffs. The Court now turns to that evaluation. 19 5. BIA’s Evaluation of the Evidence 20 The Court now turns to the crux of Plaintiffs’ arguments that Plaintiffs provided 21 overwhelming evidence to support the I-130 petition. Plaintiff argues that the BIA cherry picked 22 evidence and did not consider the totality of the evidence, but instead relied upon the biological 23 mother’s letter to infer intent upon Plaintiff-father. (See Motion, Doc.17, p.10-12.) Plaintiffs 24 argue that the bulk of their evidence was arbitrarily weighed against the single letter written by 25 the biological mother to her then 3-year old son. (Id., Doc. 17, 11-13.) Plaintiffs also argue that 26 the agency misinterpreted the biological parents’ consideration of placing Plaintiff-son in an 27 orphanage. Plaintiffs argue that the BIA ignored that the biological parents were considering it as 28 a temporary solution, which is consistent with the biological father’s declarations. AR 216. 1 This Court will not overturn an agency determination unless it is arbitrary, capricious, or 2 an abuse of discretion. FCC, 556 U.S. at 513. An agency does not violate the arbitrary and 3 capricious standard where it articulates “a rational relationship between its factual findings and its 4 decision.” Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1132 (9th Cir. 2010). 5 “The agency's factual findings are reviewed for substantial evidence.” Family Inc. v. USCIS, 469 6 F.3d 1313, 1315 (9th Cir. 2006) (citation omitted); Bear Lake Watch, Inc., v. FERC, 324 F.3d 7 1071, 1076 (9th Cir. 2003) (Agency factual determinations cannot be set aside by a district court 8 if they are supported by substantial evidence). Courts should not “disturb the agency's findings 9 under this deferential standard ‘unless the evidence presented would compel a reasonable finder 10 of fact to reach a contrary result.’ ” Family Inc., 469 F.3d at 1315 (citation omitted). Substantial 11 evidence is more than a mere scintilla, it is such evidence that a reasonable mind might accept as 12 adequate to support the conclusion. Bear Lake Watch, Inc., 324 F.3d at 1076. 13 The BIA considered the totality of the evidence. The BIA’s decision discusses five main 14 pieces of evidence in favor of its holding: (1) that Plaintiff-son was living with his biological 15 parents prior to moving to the United States, (2) his biological parents were considering giving 16 him up to an orphanage due to their inability to care for the child financially, (3) the biological 17 mother’s letter, (4) Plaintiff-father obtained guardianship in 2001 and added Plaintiff-son to his 18 health and dental insurance, and (5) Plaintiff-son’s affidavit stating that his biological family 19 began to distance themselves so he could focus on his “present family.” AR 5. Plaintiffs, 20 however, argue that the same evidence supports a contrary finding, that the purpose of Plaintiff- 21 son entering the United States was not for adoption. 22 Plaintiffs’ interpretation is but one interpretation of the evidence. Here, the BIA 23 interpreted the evidence differently. If the evidence is susceptible to more than one rational 24 interpretation, the agency findings must be upheld. Eichler v. SEC, 757 F.2d 1066, 1069 (9th Cir. 25 1985). The standard is “extremely deferential” and a reviewing court must uphold the agency's 26 findings “unless the evidence presented would compel a reasonable finder of fact to reach a 27 contrary result.” Monjaraz–Munoz v. INS, 327 F.3d 892, 895 (9th Cir. 2003), amended by 339 28 F.3d 1012 (9th Cir.2003). 1 The BIA reviewed all of the records and evidence submitted. AR 3 (“We have reviewed 2 the entire record of proceedings.”) The BIA summarized the evidence it considered pertinent to 3 the issue of whether Plaintiff-son entered the United States for purposes of adoption, including 4 the child’s living situation in Mexico, the biological mother’s parting letter with her son, the 5 child’s living situation in the United States, the child’s view of his relationship with the Plaintiff- 6 father contrasted with the biological parents. AR 4-5. The Court cannot find that the evidence 7 would compel a reasonable finder of fact to reach a contrary result. Said another way, there is 8 substantial evidence to support the conclusion that the BIA reached. 9 Plaintiffs argue that the letter from the biological mother was misinterpreted and given 10 undue weight. The letter tells the Plaintiff-son to be a good son and that he is now a part of the 11 Stoll family. AR 176. Plaintiffs argue that the choice of words had more to do with the age of the 12 child then the actual intentions of the biological mother. However, the BIA’s interpretation that 13 the biological mother was giving Plaintiff-son up to another family is a rational interpretation. 14 Looking directly at the language, the biological mother makes several statements like “be a good 15 son” and “part of their family” that appear to be her giving the child up to the Stolls permanently. 16 It also supports that the Stolls were to act as parents to Plaintiff-son. 17 Plaintiffs also argue that the steps they took after Plaintiff-son entered the United States 18 would not suggest that they intended to adopt him. Plaintiffs reason that the guardianship and 19 placing the child on their health insurance was to facilitate his education and medical care. The 20 BIA, however, interpreted the same evidence as leading to adoption, as the Stolls “essentially 21 raised the [child].” AR 5. Again, the BIA’s interpretation is rational. Plaintiff-father and his wife 22 raised the child from age three to the present. In his affidavit, Plaintiff-son states that he considers 23 the Stolls his family. AR 5. Based on an objective examination of the evidence, the Plaintiffs 24 actions could not only be facilitating the child’s care in the short term, but also steps to adoption. 25 The Court does not find that the evidence would compel a reasonable finder of fact to reach a 26 contrary result. 27 Plaintiffs additionally argue that the declarations of Plaintiff-father and Ms. Stoll say that 28 their intention was not to adopt Plaintiff-son when he entered the United States. Defendants 1 contend that the declarations are self-serving and made after the fact, therefore, their weight in the 2 analysis is limited. Plaintiff-father’s declaration and his wife’s refer to the actions they personally 3 took since Plaintiff-son entered the United States. They also affirmatively state that they did not 4 have the intention of adopting Plaintiff-son at the time. 5 It is up to the fact finder to weigh their credibility and to weigh them against the other 6 evidence in the record. The BIA considered “the entire record” and evaluated the evidence in the 7 declarations. Based on the BIA findings, the declarations did not carry enough weight to surpass 8 the other evidence that suggested adoption was the purpose of bringing Plaintiff-son to the United 9 States. An agency does not violate the arbitrary and capricious standard where it articulates “a 10 rational relationship between its factual findings and its decision.” Fence Creek Cattle Co., 602 11 F.3d at 1132. 12 By asking this Court to draw different inferences from those reasonably drawn by the 13 BIA, the Plaintiffs misapprehend the nature of the Court’s review. The Court may not substitute 14 its judgment for the reasonable judgment of the BIA, even if this Court may have a different view 15 of the evidence. See Ponce v. S.E.C., 345 F.3d 722, 728 (9th Cir. 2003) (“If ... the evidence is 16 open to more than one interpretation, we are required to uphold the SEC's finding.); see Gebhart 17 v. S.E.C., 595 F.3d 1034, 1043 (9th Cir.2010) (reviewing an agency's factual finding to determine 18 if it was supported by “such relevant evidence as a reasonable mind might accept as adequate to 19 support a conclusion”). Because the administrative record reflects a rational basis for the BIA's 20 decision, Defendants are entitled to summary judgment on Plaintiffs' claim that the BIA's decision 21 was arbitrary and capricious and subject to reversal under the APA. 22 V. Conclusion and Order 23 For the reasons stated above, the Court GRANTS Defendants' Motion for Summary 24 Judgment and DENIES Plaintiffs’ Motion for Summary Judgment. The Clerk is directed to close 25 this case. IT IS SO ORDERED. 26 27 Dated: March 1, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 28