Retroactivity to the Rescue! 4th Circuit Recognizes Nunc Pro Tunc Adoption Decree

Last Updated

February 26, 2016

In a 2015 precedent decision, the BIA held that an adoption is valid for immigration purposes – even if the child turned 16 at the time of the final order – if the adoption petition was filed before the beneficiary's 16th birthday and the state court has allowed the order to be backdated. Matter of R. Huang, 26 I&N Dec. 627 (BIA 2015).

But what if the adoption petition was filed after the child's 16th birthday? Can a retroactive decree still prevail?

That issue was addressed by the 4th U.S. Circuit Court of Appeals in Oleyde Ojo v. Lynch, Case No. 15-1138 (4th Cir. 2016), involving the interplay of derivation of citizenship and the definition of child under INA § 101(b)(1)(E)(i). Ojo, a Nigerian national who immigrated to the United States in 1989 at age 6, was placed in removal proceedings in 2013 based on two drug-related convictions. Ojo had been raised by his U.S. citizen uncle, who served as his legal guardian and later filed a petition to adopt him, after Ojo turned 16. The final adoption decree was issued in 2001, when Ojo was 17. Based on Ojo's age at the date of the final adoption decree, the immigration judge found that Ojo did not satisfy the definition of child at INA § 101(b)(1)(E)(i) and consequently did not derive citizenship. Ojo was ordered removed, and the decision was upheld by the BIA.

Ojo's uncle then returned to state court and obtained a nunc pro tunc order amending the adoption decree to make it effective as of the day before Ojo's 16th birthday. By that time, the BIA had decided the Huang case, recognizing backdated adoption decrees. Ojo's motion to reopen was nevertheless denied because the BIA determined that the Huang decision on retroactive adoption decrees only applied to adoption petitions filed before the child turned 16.

In his petition for review to the 4th Circuit, Ojo argued that the retroactive order of adoption should be recognized for purposes of his status as an adopted child under the INA. The court agreed, finding that a child is adopted for purposes of INA § 101(b)(1)(E)(i) "on the date that a state court rules the adoption effective, without regard to the date on which the act of adoption occurred." Ojo at 14. As the court further noted, this "foreclosed the BIA's summary disregard of facially valid nunc pro tunc orders relating to adoptions conducted by various state courts." Oyo at 17.

As a result of this analysis, the court granted Ojo's petition for review and remanded the case to the BIA for further proceedings. Presumably, Ojo will now move to terminate based on deriving citizenship by age 18 as the adopted child of a U.S. citizen.