Doris Amponsah v. Eric Holder, Jr.
2013 U.S. App. LEXIS 5733
| 9th Cir. | 2013Background
- Apori, Ghanaian-born, entered the U.S. as a 15-year-old visitor in July 1999.
- Washington state court nunc pro tunc (Feb 2000) adoption decree credited four days before Apori’s 16th birthday.
- Adoptive mother filed I-130 in 2000; Apori filed I-485, later denied in 2001; a second I-130 filed in 2007 with renewal of adjustment.
- Immigration Judge pretermitted Apori’s adjustment, relying on § 1101(b)(1)(E) to define ‘child’ and a BIA rule against nunc pro tunc adoptions after age 16.
- BIA affirmed de novo, adoptingCariaga-based blanket rule that nunc pro tunc adoptions after 16 are not retroactive for immigration purposes.
- Apori challenged both the nunc pro tunc adoption issue and a separate finding of marriage fraud used to bar relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA’s blanket rule disfavors nunc pro tunc adoptions | Apori argues for case-by-case respect to valid state judgments. | Government defends Cariaga-based blanket rule as reasonable under § 1101(b)(1)(E). | Rule impermissible; remand for case-by-case consideration. |
| Whether nunc pro tunc adoption decrees can be recognized under § 1101(b)(1)(E) | State-law adoption date should control; emphasize federal policy of family unity. | Adoption must occur before 16; nunc pro tunc after 16 not retroactive. | Chevron step-two ruling requires case-by-case recognition; blanket rule rejected. |
| Whether due process was violated by how marriage-fraud was used to pretermit eligibility | BIA relied on a 2008 marriage-fraud finding not litigated below; violated due process. | Unaffected arguments—marriage fraud valid basis for pretermission. | Due process violated; reversal ordered on that ground as to marriage-fraud basis. |
Key Cases Cited
- Matter of Cariaga, 15 I. & N. Dec. 716 (BIA 1976) (established blanket rule on nunc pro tunc adoptions after 16)
- Matter of Drigo, 18 I. & N. Dec. 223 (BIA 1982) (reinforced strict age-based interpretation of § 1101(b)(1)(E))
- Kaho v. Ilchert, 765 F.2d 877 (9th Cir. 1985) (rejects assumptions about fraud shielding; supports case-by-case scrutiny)
- Minasyan v. Gonzales, 401 F.3d 1069 (9th Cir. 2005) (distinguishes nunc pro tunc actions regarding legal status)
- De Sylva v. Ballentine, 351 U.S. 570 (U.S. 1956) (federal-right content determined by state-law structures)
- Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003) (standard of review for BIA determinations)