Schreiber v. Cuccinelli, 981 F.3d 766

Background

Schreiber (U.S. citizen, Kansas) and his wife adopted Hyebin (his wife’s niece) in Kansas in 2014 when she was 17; Kansas issued an adoption decree and new birth certificate.
Schreiber filed an I-130 to classify Hyebin as his “child” under 8 U.S.C. § 1101(b)(1); USCIS said she was not an “adopted” child for immigration purposes (adoption-after-16 rule) and denied classification as a “legitimated” child because she is not his biological child.
Schreiber appealed to the BIA arguing Kansas law treats adoption as legitimation; BIA (citing its precedent) rejected the claim, stating a parent may legitimate only his biological child and declined to decide constitutional claims.
In district court Schreiber renewed statutory arguments and for the first time raised an equal‑protection/gender-discrimination challenge (arguing differential treatment vs. gestational mothers using ART); the court found the statutory term unambiguous and refused to consider the late constitutional claim for failure to exhaust before the BIA.
The Tenth Circuit affirmed: (1) it held “legitimated” in § 1101(b)(1)(C) unambiguously requires a biological relationship (so non‑biological adoptees cannot be “legitimated” under that clause), and (2) the district court properly declined to hear Schreiber’s unexhausted gender‑discrimination claim (Darby inapplicable to issues not raised in a discretionary BIA appeal that the petitioner actually pursued).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether “legitimated” in 8 U.S.C. § 1101(b)(1)(C) allows a parent to legitimate a non‑biological (adopted) child	Schreiber: the statute defers to state law as to whom may be legitimated; Kansas adoption effects legitimation	Government/BIA: “legitimated” implies establishment of paternity and a biological relationship; statute’s plain meaning requires biology	Court: term unambiguous; a “legitimated” child must be the biological offspring of the legitimating parent; BIA correct
Whether the court erred in refusing to consider Schreiber’s equal‑protection / gender‑discrimination claim (failure to exhaust before BIA) and whether Darby v. Cisneros barred exhaustion requirement	Schreiber: Darby prevents courts from imposing exhaustion where BIA appeal was optional; exhaustion would be futile because BIA said it lacked jurisdiction over constitutional claims	Government: once petitioner appealed to the BIA he had to raise all claims there; Darby does not bar requirement to exhaust issues raised in an appeal actually pursued; futility not shown	Court: affirmed district court—claim unexhausted; Darby distinguishable because Schreiber did pursue the optional BIA appeal and failed to present the constitutional theory there
Whether Kansas law treats adoption of a non‑biological child as a form of “legitimation” under state law	Schreiber: Kansas statutes and some authority equate adoption with legitimation	Government/BIA: Kansas adoption statute grants adoptive‑parent rights but does not show legislative intent to convert adoption into common‑law legitimation	Court: Schreiber failed to show Kansas law treats such adoptions as legitimation; court did not rely on Chevron because it found the federal term unambiguous

Key Cases Cited

Pfeifer v. Wright, 41 F.2d 464 (10th Cir. 1930) (describing traditional common‑law meaning of legitimation as recognition of a biological child)
Darby v. Cisneros, 509 U.S. 137 (U.S. 1993) (APA exhaustion: optional agency appeals need not be exhausted before judicial review, but court may require exhaustion of issues actually raised in a discretionary appeal)
De Sylva v. Ballentine, 351 U.S. 570 (U.S. 1956) (federal law may look to state domestic‑relations law to define familial status but not to an interpretation ‘‘entirely strange’’ to ordinary usage)
Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (U.S. 1984) (framework for deference to reasonable agency interpretations)
Ojo v. Lynch, 813 F.3d 533 (4th Cir. 2016) (state court adoption date may control INA adoption‑age inquiry; illustrates limits of state‑law deference on timing issues)
United States v. Windsor, 570 U.S. 744 (U.S. 2013) (cited for liberty/equal‑protection principles invoked by petitioner)
INS v. Hector, 479 U.S. 85 (U.S. 1986) (Congress carefully defines "child" in INA; courts should enforce statutory language)