Retroactive Adoption Decrees Open Up Possibilities | CLINIC

Retroactive Adoption Decrees Open Up Possibilities

Charles Wheeler

The BIA has held that an adoption is valid for immigration purposes – even if the child has turned 16 at the time of the final order – if the state court has allowed the order to be backdated. Matter of R. Huang, 26 I&N Dec. 627 (BIA 2015). The BIA held that since the effective date of the adoption decree was made retroactive to the date the petition was filed, when the child was under 16, that the adoption will be valid for immigration purposes.

In this case, the adoptive parents filed a petition to adopt a child when she was two months short of her sixteenth birthday.  When the court issued the final decree, she had already turned 16.  But the decree was made retroactive to the date it was filed when the child was under 16. In order for an adoption to be valid for immigration purposes, it must be finalized while the child was “under the age of sixteen.” INA § 101(b)(1)(E)(i); 8 CFR § 204.2(d)(2)(vii). If the BIA applied a literal interpretation of the statutory words, it would use the child’s biological age on the date of the final decree; if it applied a broader definition, it would apply her adjusted age on the retroactive date of the final decree.

The BIA decided to abandon its prior holdings on this issue and adopt a more expansive reading of the age requirement. It held that “we will no longer deny a visa petition where the adoption petition was filed before the beneficiary’s 16th birthday, the state in which the adoption was entered expressly permits an adoption decree to be entered retroactively, and the State entered such a decree consistent with that authority.” The BIA’s new interpretation opens up possibilities in those states that allow for nunc-pro-tunc or retroactive back-dating of the final adoption decree, provided the process was initiated before the child turned 16.