Adebowale Oloyede OJO, Petitioner, v. Loretta E. LYNCH, Respondent.
No. 15-1138.
United States Court of Appeals, Fourth Circuit.
Argued: Dec. 8, 2015. Decided: Feb. 16, 2016.
813 F.3d 533
For the foregoing reasons the judgment of the district court is
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Adebowale Oloyede OJO, Petitioner, v. Loretta E. LYNCH, Respondent.
No. 15-1138.
United States Court of Appeals, Fourth Circuit.
Argued: Dec. 8, 2015.
Decided: Feb. 16, 2016.
excuse the procedural default of his substantive Edwards claim as it pertains to the child pornography charges. To obtain federal habeas review of a procedurally defaulted claim, a petitioner must show both “cause for the default and actual prejudice” from a violation of federal law. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Though the “[c]onstitutionally deficient performance” of Grueninger‘s counsel may constitute “cause” under this standard, see Reid v. True, 349 F.3d 788, 806 (4th Cir.2003), Grueninger cannot demonstrate the requisite “prejudice,” as discussed above, and so his stand-alone Edwards claim does not provide an alternative basis for reversing his child pornography convictions. And because Grueninger prevails on his Strickland claim as to the sexual abuse charges, there is no need to address those charges further.
Before MOTZ, KING, and KEENAN, Circuit Judges.
Petition for review granted; vacated and remanded by published opinion. Judge KING wrote the opinion, in which Judge MOTZ and Judge KEENAN joined.
Adebowale Oloyede Ojo, a native of Nigeria and the adopted son of a United States citizen, petitions for review of the decision of the Board of Immigration Appeals (the “BIA“) denying a motion to reopen his removal proceedings. In so ruling, the BIA relied on its administrative interpretation of a provision in the Immigration and Nationality Act (the “INA“) relating to adopted children, codified at
I.
A.
Before addressing the particulars of Ojo‘s case, we briefly sketch the relevant statutory framework governing citizenship for foreign-born children.
- First, “[a]t least one parent of the child is a citizen of the United States, whether by birth or naturalization“;
- Second, “[t]he child is under the age of eighteen years“; and
- Finally, “[t]he child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.”
An adopted child qualifies as a “child” for purposes of
A foreign-born child who fails to obtain citizenship remains an alien. See
B.
1.
The pertinent facts of this case are not in dispute. Ojo was born in Nigeria on August 28, 1983, and he lawfully entered the United States in August 1989. Two weeks later, on September 14, 1989, when Ojo was just six years old, his uncle—a United States citizen—became Ojo‘s legal guardian. More than ten years later, on June 19, 2000, when Ojo was sixteen, Ojo‘s uncle and the uncle‘s wife filed a petition to adopt Ojo. On January 24, 2001, after Ojo had turned seventeen, the Circuit Court for Montgomery County, Maryland (the “Maryland state court“), entered a judgment of adoption.
On May 15, 2014, an immigration judge (the “IJ“) determined that Ojo was removable from this country by clear and convincing evidence. The IJ explained that, because Ojo turned sixteen on August 28, 1999, and was not adopted by his citizen uncle until he was already seventeen years old, he did not qualify as an adopted child under
On June 25, 2014, the BIA received Ojo‘s notice of appeal of the IJ‘s decision. On September 10, 2014, in support of a request for a remand to the IJ, Ojo advised the BIA that his adoptive father would seek a nunc pro tunc order from the Maryland state court specifying that Ojo‘s adoption became effective before he turned sixteen.1 Ojo asserted that the court would likely grant such an order because—between the time Ojo entered the United States at age six in 1989 and the approval of his adoption in 2001—he had lived continuously as the child of his adoptive father.
On October 31, 2014, the BIA agreed with the IJ that Ojo was removable, recognizing that Ojo had the burden of proving his citizenship claim and showing that his adoption occurred before his sixteenth birthday. Relying on the judgment of adoption of January 24, 2001, the BIA ruled that Ojo was seventeen when adopted. Accordingly, the BIA decided that he did not qualify as an adopted child under
On November 24, 2014, Ojo filed a timely motion to reopen his removal proceedings, supported by a nunc pro tunc order entered on October 29, 2014, by the Maryland state court. That order made Ojo‘s adoption effective on August 27, 1999, the day before he turned sixteen. By a decision of January 12, 2015, the BIA denied Ojo‘s motion to reopen, observing that it “does not recognize nunc pro tunc adoption decrees after a child reaches the age limit for both the filing of the adoption petition and decree.” For that principle, the BIA relied on its prior decisions in Matter of Cariaga, 15 I. & N. Dec. 716 (BIA 1976), and Matter of Drigo, 18 I. & N. Dec. 223 (BIA 1982).
2.
In its Matter of Cariaga decision, the BIA had established a blanket rule that “[t]he act of adoption must occur before the child attains the age [specified in the INA],” thereby precluding any consideration of a nunc pro tunc order entered after the relevant birthday but made effective before that date. See 15 I. & N. Dec. at 717. According to the BIA, “[t]hrough the imposition of an age restriction on the creation of the adoptive relationship, Congress has attempted to distinguish between bona fide adoptions, in which a child has been made a part of a family unit, and spurious adoptions, effected in order to circumvent statutory restrictions.” Id. Thereafter, in Matter of Drigo, the BIA relied on its Cariaga decision and rejected the contention that “a decree of adoption is fully effective as of the date entered nunc pro tunc and is entitled to recognition for immigration purposes.” See 18 I. & N. Dec. at 224. The BIA‘s Drigo decision emphasized that “[i]t was Congress’ intent that the age restriction in [
Only one of our sister courts of appeals has heretofore addressed the viability of the Cariaga/Drigo rule in a published opinion. In Amponsah v. Holder, 709 F.3d 1318 (9th Cir.2013), the Ninth Circuit concluded “that the BIA‘s blanket rule against recognizing nunc pro tunc adoption decrees constitutes an impermissible construction of
3.
In support of his motion to reopen his removal proceedings, Ojo invoked several of the federal court decisions discrediting the Cariaga/Drigo rule. The BIA, however, rejected those decisions across-the-board as “not binding.” Specifically addressing the Ninth Circuit‘s Amponsah opinion, the BIA observed that Ojo‘s “reliance on [Amponsah] is misplaced as this decision was withdrawn.” The BIA did not acknowledge that the Ninth Circuit withdrew its Amponsah opinion because of the BIA‘s assurance to that court in 2013 that it was revisiting the Cariaga/Drigo rule—the very rule on which the BIA then relied in January 2015 to refuse to reopen Ojo‘s removal proceedings.
On February 10, 2015, Ojo filed a timely petition for review of the BIA‘s decision denying his motion to reopen. We possess jurisdiction pursuant to
4.
On July 8, 2015, during the pendency of this proceeding, the BIA modified the Cariaga/Drigo rule in its precedential decision in Matter of Huang, 26 I. & N. Dec. 627 (BIA 2015). The Huang decision related that Congress imposed an age restriction in
II.
We review the BIA‘s denial of a motion to reopen removal proceedings for abuse of discretion. See Lin v. Holder, 771 F.3d 177, 182 (4th Cir.2014). For our Court to grant a petition for review, the BIA‘s decision must be “arbitrary, capricious, or contrary to law.” See Nken v. Holder, 585 F.3d 818, 821 (4th Cir.2009).
III.
The dispute presented here between Ojo and the Attorney General centers on the statutory phrase, “adopted while under the age of sixteen years.” See
A.
Congress has charged the Attorney General, and in turn the BIA, with administering significant portions of the INA. See Fernandez v. Keisler, 502 F.3d 337, 343-44 (4th Cir.2007). Thus, we generally evaluate the BIA‘s interpretations of the INA‘s provisions by following the two-step approach announced by the Supreme Court in Chevron. See Barahona v. Holder, 691 F.3d 349, 354 (4th Cir.2012). At Chevron‘s first step, we “examine the statute‘s plain language; if Congress has spoken clearly on the precise question at issue, the statutory language controls.” Barahona, 691 F.3d at 354 (internal quotation marks omitted). If Congress has not so spoken, in that “the statute is silent or ambiguous, we defer to the agency‘s interpretation if it is reasonable.” Id. (internal quotation marks omitted).
Preparing to handle the tools of statutory construction prompts us to emphasize, as we have frequently, that “the plain language of the statute is ... the most reliable indicator of Congressional intent.” See, e.g., Soliman v. Gonzales, 419 F.3d 276, 281-82 (4th Cir.2005). If Congress‘s intent is clear from the plain text, “then, this first canon is also the last: judicial inquiry is complete.” See Barnhart v. Sigmon Coal Co., 534 U.S. 438, 462, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (internal quotation marks omitted). As the Supreme Court has recently reiterated, however, “the meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.” See King v. Burwell, — U.S. —, 135 S.Ct. 2480, 2489, 192 L.Ed.2d 483 (2015) (internal quotation marks omitted). We, therefore must “read the words in their context and with a view to their place in the overall statutory scheme.” Id. (internal quotation marks omitted).
B.
1.
We begin with the text of the relevant statute. To be considered a “child” for purposes of derivative citizenship under
An adoption is “[t]he creation by judicial order of a parent-child relationship between two parties.” See Black‘s Law Dictionary 58 (10th ed.2014); see also Black‘s Law Dictionary 49 (6th ed.1990) (defining “adoption” as the “[l]egal process pursuant to state statute in which a child‘s legal rights and duties toward his natural parents are terminated and similar rights and duties toward his adoptive parents are substituted“); Black‘s Law Dictionary 63 (3d ed., rev.1944) (similar). The formal legal act of adoption “creates a parent-child relationship between the adopted child and the adoptive parents with all the rights, privileges, and responsibilities that attach to that relationship.” See Black‘s Law Dictionary 58 (10th ed.2014).
In short, an “adoption,” as defined and commonly used, contemplates a formal judicial act. Furthermore, it is well understood that, in the United States, our various state courts exercise full authority over the judicial act of adoption. See Adoptive Couple v. Baby Girl, — U.S. —, 133 S.Ct. 2552, 2565, 186 L.Ed.2d 729 (2013) (Thomas, J., concurring) (observing that “[a]doption proceedings are adjudicated in state family courts across the country every day, and domestic relations is an area that has long been regarded as a virtually exclusive province of the States” (internal quotation marks omitted)).
With those principles in mind, we discern no indication from the text of
Viewing
To that end, “the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.” See United States v. Windsor, — U.S. —, 133 S.Ct. 2675, 2691, 186 L.Ed.2d 808 (2013) (relying on De Sylva v. Ballentine, 351 U.S. 570, 580, 76 S.Ct. 974, 100 L.Ed. 1415 (1956), wherein the Supreme Court itself observed that, “[t]o determine whether a child has been legally adopted, for example, requires a reference to state law“); see also Full Faith and Credit Act,
Here, if Congress had intended a modified definition of the term “adopted” for purposes of federal immigration law and sought to place the interpretation thereof in the hands of an administrative agency, such as the BIA, Congress would have made that intention “unmistakably clear.” See Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (internal quotation marks omitted) (acknowledging that “the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere“). Congress did not, for example, specify requirements in the INA that, if met, would confer upon a child the status of “adopted” for purposes of federal immigration law. Nor did Congress explicitly circumscribe state authority over adoptions in the immigration context, as it has elsewhere. See Adoptive Couple, 133 S.Ct. at 2557 (majority opinion) (observing that the Indian Child Welfare Act of 1978 “establishes federal standards that govern state-court child custody proceedings involving Indian children“). Nor did Congress expressly confer on the Attorney General or the BIA any power to override the States’ traditional control over adoptions. See
Put succinctly, the plain meaning of “adopted” in
In these circumstances, it was contrary to law for the BIA not to recognize the nunc pro tunc order in Ojo‘s case. As a result, the BIA abused its discretion in denying Ojo‘s motion to reopen his removal proceedings.4
IV.
Pursuant to the foregoing, we grant Ojo‘s petition for review and vacate the BIA‘s decision denying Ojo‘s motion to reopen his removal proceedings. We remand to the BIA for such other and further proceedings as may be appropriate.
PETITION FOR REVIEW GRANTED; VACATED AND REMANDED
Wilerms OXYGENE, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
Wilerms Oxygene, Petitioner, v. Loretta E. Lynch, Attorney General, Respondent.
Nos. 14-2380, 15-1099.
United States Court of Appeals, Fourth Circuit.
Argued: Dec. 8, 2015.
Decided: Feb. 22, 2016.