Schreiber v. CuccinelliSchreiber v. Cuccinelli
* Plaintiff commenced his lawsuit against certain specified federal-agency defendants in their official capacities. The listed Defendant-Appellees reflect the automatic substitution of officials pursuant to
Appeal from the United States District Court for the District of Kansas (D.C. No. 2:17-CV-02371-DDC-JPO)
Robert D. Friedman, Institute for Constitutional Advocacy and Protection (Rekha Sharma-Crawford, Sharma-Crawford, Attorneys at Law, LLC; Joshua A. Geltzer, Institute for Constitutional Advocacy and Protection, with him on the briefs), Washington, D.C., for Plaintiff-Appellant.
T. Monique Peoples, Senior Litigation Counsel, U.S. Department of Justice, Office of Immigration Litigation (Joseph H. Hunt, Assistant Attorney General, U.S. Department of Justice; William C. Peachey, Director, Office of Immigration Litigation; Elianis N. Perez, Assistant Director, Office of Immigration Litigation, with her on the brief), Washington, D.C., for Defendants-Appellees.
Before TYMKOVICH, Chief Judge, BALDOCK, and HOLMES, Circuit Judges.
This case presents the issue of whether a father’s adopted child can qualify as his “legitimated” child for purposes of § 101(b)(1)(C) of the Immigration and Nationality Act (“Act“),
Accordingly, we must now decide whether the Board of Immigration Appeals (“BIA“)—that is, the federal agency charged with ultimately interpreting the Act—erred in ruling that, because it is implicit in the concept of legitimation that a parent may legitimate only his biological children, the Act need not and does not look to state law to see whether parents may legitimate someone other than their biological children. Like the district court, we determine that the BIA correctly interpreted the Act’s plain meaning and, thus, did not err in ruling that a parent’s non-biological child may not be his “legitimated” child within the meaning of the Act. We also hold that the district court did not violate the Supreme Court’s rule in Darby v. Cisneros, 509 U.S. 137 (1993), when it declined to entertain the gender-discrimination challenge of plaintiff-appellant Lieutenant Colonel Patrick Schreiber (“Mr. Schreiber“) to the BIA’s interpretation of the Act because he failed to exhaust this argument in his purportedly optional appeal to the BIA. Exercising jurisdiction under
I
A
We begin by outlining in more detail the legal contours of the dispute and our resolution of it. When Mr. Schreiber asked the U.S. Citizenship and Immigration Services (“USCIS“) to classify his adopted daughter, Hyebin, as his “child” for purposes of § 101(b)(1) of the Act to start her on the path to obtaining lawful permanent residency, the USCIS notified him that it planned to deny his I-130 рetition.1 The USCIS explained that Hyebin did not qualify under the Act as his “adopted” child because the Act limited that category to children “adopted while under the age of sixteen years,” see
The USCIS and later the BIA rejected Mr. Schreiber’s position on the ground that Hyebin could not be his “legitimated” child under the Act because she was not his biological child. In pursuing judicial review of the BIA’s final agency action in federal district court, Mr. Schreiber raised for the first time a gender-discrimination challenge to the BIA’s interpretation of the statutory term “legitimated.” The district court held that the BIA had correctly interpreted the term’s unambiguous meaning and declined to consider Mr. Schreiber’s gender-discrimination challenge because he had failed to raise it in his purportedly optional administrative appeal to the BIA. Mr. Schreiber timely appeals from the district court’s judgment, which upheld the BIA’s rejection of his I-130 petition.
We agree with the district court that when the Act speaks of a “legitimated” child in
B
Mr. Schreiber and his wife are United States citizens and Kansas residents. In 2012, Hyebin, who is the niece of Mr. Schreiber’s wife, moved from her native South Korea to Kansas in order to live with the Schreibers and attend high school.
In 2014, the Schreibers adopted Hyebin under Kansas law with the consent of her biological parents. She was seventeen years old. The Kansas adoption decree stated that Hyebin “is hereby the child and heir-at-law” of the Schreibers, who “are entitled to exercise any and all rights of parents of [Hyebin] and are subject to all of the liabilities of that relationship.” Aplt.’s App. at 207 (Decree of Adoption, dated Nov. 17, 2014). Kansas issued Hyebin a new birth certificate listing the Schreibers as her parents. No one before us doubts the authenticity of the familial bond that Hyebin shares with her parents.
In 2015, Mr. Schreiber filed an I-130 petition with the USCIS, seeking to have Hyebin classified as his “child” for purposes of
The USCIS denied Mr. Schreiber’s petition on the basis that Hyebin was neither his “adopted” child nor his “legitimated” child, for purposes of “section 101(b)(1) of the Act,” i.e.,
Mr. Schreiber appealed from the USCIS’s decision to the BIA. He conceded that the BIA had been clear in In re Bueno-Almonte (”Bueno“), 21 I. & N. Dec. 1029 (BIA 1997), that the very concept of legitimation implies that only a child’s natural (i.e., biological) parent can legitimate her. Mr. Schreiber nonetheless argued that, for immigration purposes, Hyebin qualified as his “legitimated” child because (1) the Act “g[ave] total deference to State law to determine whether or not [a] child is considered ‘legitimated,‘” and (2) “Kansas law authorizes adoption as a method of legitimation.” Id. at 88, 91 (Br. in Supp. of Appeal, dated July 25, 2016). Mr. Schreiber also asserted that if Hyebin were his “legitimated” child under Kansas law, but the BIA did not acknowledge her as such, the BIA would thereby deprive him of “an essential part of the Liberty protected by the Fifth Amendment,” id. at 92 (quoting U.S. v. Windsor, 570 U.S. 744, 769 (2013)), and “deny her equal protection,” id.
The Washburn Law Clinic appeared before the BIA as amicus curiae and asserted that the BIA’s interpretation of the Act would violate Mr. Schreiber’s “right to equal protection” if it distinguished between “parents who derive paternity by adoption and those who derive paternity by biology . . . in such a way that merely perpetuate[d] the odious regime against ‘illegitimate’ children that haunted Anglo-American law for centuries.” Id. at 145 (Br. of Amicus Curiae, dated Mar. 27, 2017).
In a single-member decision, adhering to Bueno, the BIA upheld the USCIS’s denial of Mr. Schreiber’s petition under the rationale that a parent may legitimate only his “biological child.” Id. at 125 (Decision of the BIA, dated June 5, 2017). “To the extent that constitutional arguments have been raised,” it reasoned, “the [BIA] does not have jurisdiction to rule on the constitutionality of the laws it administers.” Id.
Mr. Schreiber then sought judicial review in federal district court of the BIA’s final agency action, under the Administrative Procedure Act (“APA“),
discrimination-based equal-protection challenge to the BIA’s interpretation of the Act because he had failed to present that challenge to the BIA. This timely appeal follows.
II
The first issue we must consider is whether the BIA has properly construed the meaning of the phrase “a child legitimated under the law of the child’s [or the father’s] residence or domicile“—as it is used in
The government asserts that the Act requires “a biological relationship between [the] parent and child” and urges us to affirm the BIA under either the Act’s unambiguous meaning or the deference we grant to an agency’s reasonable interpretation of an ambiguous statute under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Aplee.’s Resp. Br. at 14, 31. Mr. Schreiber, in contrast, contends that the statute unambiguously looks to state law to determine whether a child has been properly legitimated and, in any event, does not add a biological-relationship requirement to that purely state-law determination. See Aplt.’s Opening Br. at 16–19, 27–31. Mr. Schreiber
maintains in the alternative that, if the Act is ambiguous on this point, the BIA’s interpretation of it is unreasonable and does not warrant Chevron deference. Id. at 32–34. In our view, the BIA is correct: that is, it is implicit in the concept of legitimation that only a child’s biological parent can legitimate her, and the statute is unambiguous in this respect.
A
“Although this is an appeal from the district court’s decision, we accord no particular deference to that decision” and “conduct our own independent review of the agency’s decision.” Maralex Res., Inc. v. Barnhardt, 913 F.3d 1189, 1198 (10th Cir. 2019); see N.M. Health Connections v. U.S. Dep’t of Health & Human Servs., 946 F.3d 1138, 1161 (10th Cir. 2019) (“‘In reviewing the agency’s action, we must render an independent decision using the same standard of review applicable to the [d]istrict [c]ourt[’s]’ review.” (alterations in original) (quoting Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir. 1994))).
The question here is whether the statutory phrase “a child legitimated under the law of the child’s [or the father’s] residence or domicile” requires the child’s legitimating parent to be her biological parent. We “generally afford Chevron deference to the BIA’s interpretation of the [Act]” because “Congress charged the Attorney General with administering the [Act], and the Attorney General delegated that duty to the BIA.” Rangel-Perez v. Lynch, 816 F.3d 591, 597 (10th Cir. 2016); see INS v. Aguirre-Aguirre, 526 U.S. 415, 424–25 (1999) (holding that Chevron deference applies when the BIA gives ambiguous statutory terms in the Act “concrete meaning through a process of case-by-case adjudication” (quoting I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987))); Barrera-Quintero v. Holder, 699 F.3d 1239, 1244 (10th Cir. 2012) (holding that Chevron deference extends to a nonprecedential, single-member BIA decision, as here, “if it relies on prior BIA precedent addressing the same question” (quoting Efagene v. Holder, 642 F.3d 918, 920 (10th Cir. 2011))); see also 8 U.S.C. § 1103(g) (setting forth the Attorney General’s powers and duties under the Act). But we may defer to the BIA’s interpretation only when “the statute is ambiguous or silent as to the issue at hand.” Flores-Molina v. Sessions, 850 F.3d 1150, 1157 (10th Cir. 2017) (quoting Carpio v. Holder, 592 F.3d 1091, 1096 (10th Cir. 2010)). We conclude that the statutory language at issue here is unambiguous; it requires the child’s legitimating parent to be her biological parent.
In determining the meaning of a statute “[a]t the first step of the Chevron analysis, ‘we must giv[e] all undefined terms their ordinary meaning.‘” Maralex Res., 913 F.3d at 1199 n.4 (last alteration in original) (quoting Nat’l Credit Union Admin. Bd. v. Nomura Home Equity Loan, Inc., 764 F.3d 1199, 1227 (10th Cir. 2014)); see also Harbert v. Healthcare Servs. Grp., Inc., 391 F.3d 1140, 1147 (10th Cir. 2004) (describing Chevron’s “two-step inquiry” and recounting that, at
the first step, the inquiry is into “whether Congress has directly spoken to the precise question at issue” (quoting Chevron, 467 U.S. at 842)). We focus “on thе ordinary meaning of the [term] at the time Congress enacted it.” Nat’l Credit Union Admin. Bd., 764 F.3d at 1227 (alteration in original) (quoting BedRoc Ltd., LLC v. United States, 541 U.S. 176, 184 (2004) (plurality opinion)).
Congress enacted the provision at issue in this case, § 101(b)(1)(C), in 1952 as part of the original Act. See Act of June 27, 1952, ch. 477, § 101(b)(1)(C), 66 Stat. 163, 171 (1952). The Supreme Court has stated that because “Congress has been actively engaged in delineating just how broad it wishes the [Act’s] definition of ‘child’ to be,” “we are especially bound to pay heed to the plain mandate of the words Congress has chosen.” INS v. Hector, 479 U.S. 85, 90 n.6 (1986) (per curiam); see also id. at 88 (observing that
The word “legitimated” when used to describe a “child” has long meant something very specific in the law. In Pfeifer v. Wright, 41 F.2d 464 (10th Cir. 1930), for example, we explained that—as understood at common law—the legal process of “legitimation” involved taking “an illegitimate child,” who “was without right even to the name of its natural father,” and “placing the child in all respects upon the same footing as if begotten and born in wedlock.” Id. at 465–66 (emphasis added). We noted that “by whatever method made, when made,
the [legitimated] child is invested with all the rights of a lawful child,” “[i]ts civil and social status becomes that of a lawful child of the natural father, and the child and father thereafter stand in their relations to each other as though the birth had been during wedlock.” Id. at 466 (emphasis added). We observed as well that there was no “uniform” standard for legitimation among “the several states“—some states “require[d] marriage of the mother and putative father and recognition of the child,” whereas other states required “less exacting [acts] to effect legitimation“—and that the “[l]aws of the domicile of the father at the time he acts determine the effect of
In Pfeifer, we reviewed whether an illegitimate child had been legitimated under Kansas law because her father, who never married her mother, nonetheless openly recognized her as his daughter, helped raise her as a child, and regularly provided for her and later her children, “show[ing] a fatherly affection for [her] from her birth until his death.” Id. at 465. The question of whether the father had thereby legitimated his daughter was relevant because he had amassed a considerable estate in Oklahoma and died without any heirs or survivors other than his wife unless, of course, his biological daughter also was one. Id. We concluded that although the father’s acts had satisfied the requirements of a
Kansas statute that authorized illegitimate children to inherit property in Kansas under specified conditions, the daughter had not thereby been legitimated because the statute did not display “a legislative intention to change the status of a [covered] child from illegitimate to legitimate.” Id. at 467. The daughter, therefore, could not hold herself out to Oklahoma as her father’s legitimated child and heir. Id. at 468.
In defining the legal backdrop for its ruling, Pfeifer explained that legitimation was traditionally understood to be a state-law process whereby a father recognized his natural (i.e., biological) child—born out of wedlock—as his own, converting her into his legitimate child, and that the specific means by which the father accomplished that recognition (of his paternity) was left to state law. See id. at 465–66. We also learned from Pfeifer that, traditionally, a child was not deemed to be legitimated unless the state law of such a father’s domicile itself said that the father’s actions were sufficient to legitimate the child. See id. at 466. Thus, our precedent in Pfeifer highlights that, traditionally, the concept of “legitimation” effectively runs along two axes: one defines who can be legitimated (viz., the biological offspring of the legitimating parent), and the other defines how they can be legitimated (viz., by means of state law processes disclosing a legislative intent to effectuate their legitimation).
We conclude that the Congress that enacted the Act in 1952 intended to employ this traditional understanding of whom a parent may legitimate—only his biological offspring—when referring to “legitimation” and “a child legitimated” in § 101(b)(1)(C). 66 Stat. at 171 (codified at
Absent evidence that Congress intended the term legitimation to mean different things throughout the Act, “it is a normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning.” Maralex Res., 913 F.3d at 1200 n.5 (quoting Pereira v. Sessions, 138 S. Ct. 2105, 2115 (2018)); see Envtl. Def. v. Duke Energy Corp., 549 U.S. 561, 574 (2007) (calling this rule a “natural presumption” (quoting Atl.
Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932))); Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 479 (1992) (stating it is a “basic canon of statutory construction that identical terms within an Act bear the same meaning“); see also Nat’l Credit Union Admin. Bd., 764 F.3d at 1230 (“Even when a statute does not explicitly define a particulаr term, we might gain understanding of the term from how it is used elsewhere in the statute.“); Utah v. Babbitt, 53 F.3d 1145, 1149 (10th Cir. 1995) (“[S]tatutory terms are often clarified by the remainder of the statutory scheme—because the same terminology is used elsewhere in a context that makes [the term’s] meaning clear . . . .” (alteration and omission in original) (quoting Rake v. Wade, 508 U.S. 464, 474 (1993))). Thus, because we see no reason why Congress meant “legitimation” to mean something else in § 101(b)(1)(C) than it did in other sections of the Act, we are inclined to conclude that § 101(b)(1)(C) uses the term “legitimation” to refer to a change-of-status process between only a child and her biological parent.
We find further support for such a conclusion in dictionary definitions of the word “legitimation” (or derivatives thereof) as it is used to describe a child. See Maralex Res., 913 F.3d at 1199 n.4 (observing that “[w]e may consult a dictionary to determine the plain meaning of a term” (quoting Conrad v. Phone Directories Co., 585 F.3d 1376, 1381 (10th Cir. 2009))). In Blythe v. Ayres, 31 P. 915 (Cal. 1892), the California Supreme Court observed that the “law
dictionaries” of the late nineteenth century, including Black’s, Bouvier’s, Anderson’s, and Rapalje’s, agreed that there was a fundamental legal distinction between an adopted child and a legitimated child in Anglo-American law: “[a]doption, properly considered, refers to persons who are strangers in blood; legitimation, to persons where the blood relation exists.” Id. at 916; see also id. (“This is the distinguishing feature between adoption and legitimation, as recognized by all the standard law-writers of the day who have written upon the subject; and for the reason that the text-writers and the decisions of courts, to which we shall look for light and counsel, treat the subject [of when a father adopts his illegitimate biological child] as a question of legitimation, we shall view the matter from that stand-point.“).
And, from an examination of historically relevant legal and non-legal dictionaries, it seems clear to us that the concept of a “legitimated” child that Congress understood when it enacted the Act in 1952 was restricted to children who were the biological offspring of the legitimating parent. Compare Adoption of Child, BALLENTINE’S LAW DICTIONARY (3d ed. 1969) [hereinafter BALLENTINE’S] (“The means by which the legal relationship of parent and child between persons who are not so related by nature is established or created . . . .” (emphasis added)), and Adoption, WEBSTER’S THIRD NEW INT’L DICTIONARY (1961) [hereinafter WEBSTER’S] (“[T]o take by free choice into a close
relationship previously not existing esp. by a formal legal act . . . specif: to take voluntarily (a child of other parents) to be in the place of or as one’s own child . . . .“), with Legitimation, BALLENTINE’S (“In the accepted sense, the act of giving the status of a legitimate child to one born out of wedlock, such being done sometimes by statute . . . but most frequently
To be sure, Congress has said that a child will be considered “legitimated” for purposes of the Act only if she has been “legitimated under the law of [her or her father’s] residence or domicile.”
In sum, we hold that the BIA correctly interpreted the term “legitimated” in
B
Mr. Schreiber agrees that
1
Mr. Schreiber directs our attention to three cases which, he asserts, support the proposition that the Act defers to state law when determining whether a parent may legitimate a child who is not his biological offspring. He directs us first to Matter of Cross, 26 I. & N. Dec. 485 (BIA 2015), where the BIA held “that a person born abroad to unmarried parents can qualify as a legitimated ‘child’ under
Mr. Schreiber directs us to Cross because the BIA declared in a footnote that “[b]y tying the meaning of ‘legitimation’ to the requirements of the law of the child‘s residence or domicile (or that of the father), Congress anticipated that the meaning of the term would vary depending upon . . . the law in the country or State of residence or domicile,” indicating that legitimation is “an evolving, rather than a fixed, concept.” Aplt.‘s Opening Br. at 17 (ellipsis in original) (emphasis omitted) (quoting Cross, 26 I. & N. Dec. at 492 n.8). Mr. Schreiber asserts that the Cross footnote “rightly . . . embrace[s]” the notion that, if a state also has expanded its conception of legitimation to permit parents to legitimate their non-biological children, those children may qualify as “legitimated” children for purposes of the Act. Id. at 17-18. We disagree. Nothing in Cross suggests that Congress intended the Act to adopt state-law ideas about whom a parent may legitimate. Indeed, the BIA did not even have occasion to question that a parent can legitimate only his biological children because, in that case, there was “no dispute that the respondent is the biological child of the man through whom he seeks to derive United States citizenship or that he was born in Jamaica.” Cross, 26 I. & N. Dec. at 493; see id. at 490 (observing that “[a]lthough Jamaica . . . enacted laws that effectively eliminated the legal distinction between children born in wedlock and those born out оf wedlock, [it] retained a formal means of legitimating—the marriage of the biological parents“).
Mr. Schreiber also directs our attention to the Supreme Court‘s decision in De Sylva v. Ballentine, 351 U.S. 570 (1956), where the Court turned to state law to determine whether “an illegitimate child is included within the term ‘children’ as used in [the copyright-renewal provision of the then-existing federal
Mr. Schreiber argues that De Sylva requires us to deem Hyebin, who is not his biological offspring, “legitimated” for purposes of
Mr. Schreiber, in any event, fails to prove that he legitimated Hyebin under Kansas law by adopting her. Under the argument heading “Kansas law recognizes Hyebin as Lt. Col. Schreiber‘s legitimated
The statute thereby places an adopted child on the same plane in terms of personal and property rights as the adoptive parent‘s natural child, but it says nothing about treating the adopted child as if she were the product of the adoptive parent‘s marital union. To be sure, if both partners in a marriage were to adopt a child (or if one of them were already the child‘s legal parent), her adoption at least arguably would result in her being treated under Kansas law “as though she had been born in wedlock to [those] married parents.” See Aplt.‘s Opening Br. at 25. But that is different from saying that her adoption necessarily would make her the legitimated (as opposed to legal) child of her adoptive parent(s). That is especially true where, as here, the adopted child was not the illegitimate natural child of her adoptive parents. Indeed, like the one at issue in Pfeifer, the Kansas statute at issue here does not reveal on its face “a legislative intention to change the status of [an adopted] child from illegitimate to legitimate,” and because Mr. Schreiber does not point us to any authority that interprets it as “a legitimation statute,” we see no reason to construe it to be such. See Pfeifer, 41 F.2d at 467-68 (similarly declining to view a Kansas statute that granted rights of inheritance to a child as providing for the child‘s legitimation).
Mr. Schreiber also says that, in Aslin v. Seamon, 587 P.2d 875 (Kan. 1978), the Kansas Supreme Court “recognized” that adopted children are also legitimated children when the court said that “[s]everal different methods of legitimation” existed in Kansas at that time, including “adoption.” Aplt.‘s Opening Br. at 25 (alteration in original) (quoting Aslin, 587 P.2d at 877). But we are not persuaded by Mr. Schreiber‘s reliance on Aslin to support his contention that his adoption of Hyebin effected his legitimation of her under Kansas law. First of all, the Kansas statute that the Kansas Supreme Court considered in Aslin to guide its analysis has not been in effect for approximately thirty years. See Aslin, 587 P.2d at 877 (citing
Mr. Schreiber calls our attention last to the Fourth Circuit‘s decision in Ojo v. Lynch, 813 F.3d 533 (2016), where the court held that a child adopted at the age of seventeen should be considered adopted at the age of fifteen for purposes of the Act because, thirteen years and nine months after his adoption, his adoptive father secured “a nunc pro tunc order from the . . . state court specifying that [his] adoption became effective before [the child] turned sixteen.” Id. at 536. The court explained that because “state courts exercise full authority over the judicial act of adoption,” “a child is ‘adopted’ for purposes of
Putting aside any questions concerning the wisdom of Ojo‘s holding,4 we believe that the case stands at most for the proposition that the Act defers to state law in determining when a child is “adopted” for purposes of
conceptual meaning of legitimation itself. More specifically, our focus is on whether the Act employs the ordinary meaning of the term legitimation or instead leaves it to the states to redefine the term‘s meaning in novel ways, i.e., ways that do not accord with its ordinary meaning. Because Ojo did not involve a state law that had redefined the very concept of adoption itself, it does not meaningfully inform our inquiry. More specifically, the decision does not support Mr. Schreiber‘s position that the Act requires the federal government to accept as a legitimation what Mr. Schreiber contends is Kansas‘s view of conduct that falls within that term‘s ambit—specifically, a parent‘s adoption of a non-biologically-related child.
2
Mr. Schrеiber contends next that we should interpret the Act as deferring to state laws that permit parents to legitimate any child—and not just their biological children—because doing so furthers the congressional intent “of keeping families together.” Aplt.‘s Opening Br. at 23 (quoting Cantwell v. Holder, 995 F. Supp. 2d 316, 321 (S.D.N.Y. 2014)); see id. at 25 (“An interpretation of
The great difficulty with Mr. Schreiber‘s interpretative position, however, is that—as the government correctly observes—there is “no indication” in the Act that Congress wanted to pursue the
Although a parent may make a child who is not his biological offspring his lawful child with full filial rights, the process of doing so cannot properly be called “legitimation.” See, e.g., Blythe, 31 P. at 916 (“Adoption, properly considered, refers to persons who are strangers in blood; legitimation, to persons where the blood relation exists.“); Adoption, BLACK‘S (“Adoption is distinguishable from legitimation . . . . Adoption usu[ally] refers to an act between persons unrelated by blood; legitimation refers to an act between persons related by blood.“); cf. De Sylva, 351 U.S. at 580-81 (observing that although federal law turns to state law to define who are an author‘s “children” for copyright purposes, “[t]his does not mean that a State would be entitled to use the word ‘children’ in a way entirely strange to those familiar with its ordinary usage” because state law will control only “to the extent [that the state law uses] permissible variations in the ordinary concept of ‘children‘“).
Accordingly, we conclude that any “congressional intent” to keep families together is “not a license to ignore the plain meaning of [this] specific statutory provision.” United States v. Lorenzetti, 467 U.S. 167, 178 (1984); accord United States v. Husted, 545 F.3d 1240, 1245 (10th Cir. 2008) (stating that we will not read “the broad purposes” of a statute “to contradict [its] plain meaning“).
3
Mr. Schreiber finally contends that the Act‘s language demonstrates that a legitimating parent need not be the child‘s biological parent because
Congress needed to specify in subsection (D) that the mother and the father at issue were the “natural” parents of the “child born out of wedlock” because the child could, of course, have a “relationship” with
* * *
In sum, we reject Mr. Schreiber‘s arguments that the Act is best construed as deferring to state law in determining whom a parent may legitimate.5 We affirm the BIA‘s construction of the Act‘s term “legitimated” because its plain meaning requires the legitimated child to be the biological offspring of the legitimating parent.6
III
Mr. Schreiber also contests the district court‘s refusal to entertain his late-blooming constitutional challenge to the BIA‘s interpretation of the statutory term “legitimated.” The district court refused to hear the challenge because he had failed to raise it before the BIA. Mr. Schreiber
appeal from the USCIS‘s decision to the BIA was optional. We disagree on both counts and uphold the district court‘s order.
A
We consider first whether the district court erred in determining that Mr. Schreiber “did not present his current [constitutional] arguments to the agency.” Aplt.‘s App. at 31. It is undisputed that Mr. Schreiber did not present them to the USCIS. See Aplt.‘s Opening Br. at 40 (conceding that Mr. Schreiber “did not advance his constitutional claim in front of USCIS“). And the only constitutional challenge he raised before the BIA was that, if his alleged Kansas legitimation of Hyebin did not qualify as a legitimation under the Act, he would be deprived of “an essential part of the Liberty protected by the Fifth Amendment” (i.e., presumably, the Fifth Amendment‘s Due Process Clause), and Hyebin would be denied equal proteсtion. Aplt.‘s App. at 92 (quoting United States v. Windsor, 570 U.S. 744, 768 (2013)). He did not argue that he, himself, would be denied equal protection, and he did not indicate that either he or Hyebin would be denied their Fifth Amendment rights on account of their respective genders.
Before the district court, however, Mr. Schreiber argued that the BIA‘s interpretation of the statutory term “legitimated” resulted in “disparate treatment based on gender” in violation of the equal-protection component of the Fifth Amendment‘s Due Process Clause. Id. at 251. He maintained in particular that the BIA‘s interpretation had this effect because it did not recognize that he could legitimate his non-biological daughter, whereas immigration authorities had said—through a written policy—that gestational mothers may legitimate their non-genetically-related children, to whom they gave birth after using assisted reproductive technology. Id. at 251-52. This was the first time he had articulated a gender-discrimination argument and suggested that his own equal-protection rights were at stake. Like the district court, we conclude that Mr. Schreiber did not exhaust this particular challenge before the BIA, and the district court thus properly declined to consider it. See, e.g., Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010) (holding that to exhaust a claim before the BIA a petitioner “must present the same specific legal theory to the BIA before he or she may advance it in court“).
However, Mr. Schreiber maintains that, if he did not present this constitutional challenge to the BIA, the Washburn Law Clinic—which appeared before the BIA as an amicus curiae—raised it. See Aplt.‘s Opening Br. at 36-37. Mr. Schreiber cites no authority, however, even suggesting—much less establishing—that petitioners may properly claim to have exhausted arguments before the BIA that were in fact only presented to the agency by amicus curiae (i.e., another litigant). Yet, even assuming arguendo that this is so, the Washburn Law Clinic did not raise any gender-discrimination, equal-protection challenge to the BIA‘s interpretation of the Act. The Clinic, instead, asserted that it would violate Mr. Schreiber‘s “right to equal protection” if, “when Kansas treats parents who derive paternity by adoption and those who derive paternity by biology the same, the federal government [were to] distinguish between the two in such a way that merely perpetuates the odious regime of discrimination against ‘illegitimate’
In sum, we have determined that neither Mr. Schreiber, nor the Washburn Law Clinic as amicus curiae, presented to the BIA a gender-discrimination, equal-protection challenge to the BIA‘s interpretation of the Act.
B
Mr. Schreiber maintains nonetheless that he did not have to exhaust this particular constitutional, equal-protection challenge to the BIA‘s interpretation of the Act. He argues first that presenting the challenge would hаve been “futile” because the BIA held “that it lacked jurisdiction to consider the constitutional claims [that were] raised.” Aplt.‘s Opening Br. at 39. He contends next that under Darby v. Cisneros, he did not have to present the challenge to the BIA because his appeal to the BIA from the USCIS‘s decision was optional. We reject both arguments and uphold the district court‘s refusal to consider his unexhausted challenge.
1
Mr. Schreiber argues first that he did not have to exhaust his constitutional, equal-protection challenge because the BIA‘s response to the constitutional challenges that were raised showed that any attempt to exhaust this one would have been futile. To be sure, the BIA ruled in this case that “[t]o the extent that constitutional arguments have been raised, the Board does not have jurisdiction to rule on the constitutionality of laws it administers.” Aplt‘s App. at 129 (citing Matter of Fuentes-Campos, 21 I. & N. Dec. at 912). But we do not construe this language as indicating that the BIA was categorically precluded from considering constitutional challenges that implicate its interpretation of the Act. See Theodoropoulos v. INS, 358 F.3d 162, 172 (2d Cir. 2002) (citing Adelphia Commc‘ns Corp. v. FCC, for the proposition that, “[a]lthough a constitutional attack upon a statute need not be raised before [an] agency, a constitutional attack upon an agency‘s interpretation of a statute is subject to the exhaustion requirement,” 88 F.3d 1250, 1256 (D.C. Cir. 1996) (second alteration in original)); see also Alina Das, Administrative Constitutionalism in Immigration Law, 98 B.U. L. REV. 485, 512, 514 (2018) (noting that one “area in which the BIA has recognized its ability to apply constitutional principles to substantive immigration law is the BIA‘s own interpretations” and that this “suggests” that there may be space for assessment of the merits of such principles “in the realm of ambiguous statutory interpretation“); cf. In re Silva, 16 I. & N. Dec. 26, 31 & n.3 (1976) (Appleman, concurring) (noting an instance where the BIA‘s statutory interpretation “had attempted to alleviate the lack of equal treatment evident in the statute” but, in that instance, it “could go no further without flouting the statute” and, because “it has no power to declare legislation unconstitutional,” therefore “[n]o further ‘interpretation’ was possible“). And it is the BIA‘s interpretation of
Accordingly, Mr. Schreiber has not shown that it would have been futile to exhaust his current constitutional challenge before the BIA. See Harline v. DEA, 148 F.3d 1199, 1203 (10th Cir. 1998) (holding that a plaintiff challenging an administrative action “bears the burden of establishing” that “exhaustion would be futile”).
2
Mr. Schreiber also asserts that, under Darby v. Cisneros, he did not have to present his constitutional challenge to the BIA because his appeal from the USCIS’s decision to the BIA was optional. See Aplt.’s Opening Br. at 39–42. In Darby, the Supreme Court considered whether a federal court could decline to review final agency action on the ground that the plaintiff ostensibly had failed to exhaust his administrative remedies by failing to take an optional administrative appeal of the otherwise final action before seeking judicial review.
The Supreme Court there construed
Mr. Schreiber asserts—and the government does not contest—that the law did
Darby only determined that a court may not decline to review final agency action under the APA on the ground that the plaintiff had the opportunity to pursue an optional, additional level of administrative review but did not do so. 509 U.S. at 146–47, 154. Recall that the Court based its holding on its interpretation of
Stated otherwise, Darby would have barred the district court from declining to review the USCIS’s (allegedly) final agency action on the ground that there was an optional, additional level of agency review in the BIA that Mr. Schreiber could have, but did not, take. But that is not what the district court did here. The district court, instead, declined Mr. Schreiber’s invitation to overturn the BIA’s new and distinct final agency action based on “the merits of arguments not presented to [it].” See Aplt.’s App. at 32 (emphasis added) (citing Garcia-Carbajal, 625 F.3d at 1237). As such, the district court was applying the “fundamental principle of administrative law that an agency must have the opportunity to rule on a challenger’s arguments before the challenger may bring those arguments to court.” Garcia-Carbajal, 625 F.3d at 1237. Because this is not a situation where the district court faulted a petitioner for failing to take an optional level of agency review, but rather for failing to exhaust his arguments before the final level of agency review that he in fact elected to pursue, Darby is distinguishable, and we discern nothing in that case nor in the APA’s text that would indicate that the district court erred here.
As the D.C. Circuit correctly observed in CSX Transp., Inc. v. Surface Transp. Bd., 584 F.3d 1076 (D.C. Cir. 2009), “Darby stands for the proposition that absent a statutory or regulatory requirement to the contrary, courts have no authority to require petitioners seeking judicial review of a final agency action to further exhaust administrative procedures.” Id. at 1079 (emphasis added). The effect of the district court’s decision here was not to require Mr. Schreiber “to further exhaust administrative procedures,” id. (emphasis added); instead, it simply held him accountable for not having exhausted his claims in the administrative proceeding that he freely availed himself of—the BIA proceeding that resulted in the adverse ruling that he now challenges in court. And in doing so, the district court adhered to the fundamental principle of administrative law that instructs courts not to “usurp[] the agency’s function [by] set[ting] aside the administrative determination upon a ground not theretofore presented and depriv[ing] the [agency] of an opportunity to consider the matter, make its ruling, and state the reasons for its action.” Garcia-Carbajal, 625 F.3d at 1237 (final alteration in original) (quoting Unemployment Comp. Comm’n of Alaska v. Aragon, 329 U.S. 143, 155 (1946)).
Lastly, Mr. Schreiber contends that the district court should not have required him to exhaust his constitutional challenge before the BIA because doing so will “discourage discretionary appeals” by creating “[an] incentive for the subject of [an] adverse [administrative] decision to skip the discretionary appeals process entirely to secure more time to consider possible claims” to present to the district court. Aplt.’s Reply Br. at 23. We are unpersuaded that this practical consideration is sufficiently weighty to overcome, as a matter of law, the “fundamental principle . . . that an agency must have the opportunity to rule on a challenger’s arguments before the challenger may bring those arguments to court.” Garcia-Carbajal, 625 F.3d at 1237. We believe that, despite this principle of
* * *
In sum, we hold that the district court violated neither the letter nor the spirit of the Supreme Court’s holding in Darby by requiring Mr. Schreiber to exhaust before the BIA his constitutional, gender-discrimination challenge to the BIA’s interpretation of the Act.
IV
In conclusion, we agree with the district court’s determination that the BIA properly ruled that Hyebin cannot qualify as Mr. Schreiber’s “legitimated” child for purposes of
TYMKOVICH, C.J., concurring in the judgment.
I join Part III of Judge Holmes’s opinion affirming the district court’s refusal to entertain Schreiber’s constitutional challenge to the BIA’s interpretation of the term “legitimated” in
In construing the phrase “legitimated under the law . . . of the father’s residence or domicile,”
The opinion’s focus on the meaning of the word “legitimated” in the statute does not adequately take into account that the word is modified by the phrase “under the law . . . of the father’s residence or domicile.” As the Board of Immigration Appeals noted in Matter of Cross:
By tying the meaning of “legitimation” to the requirements of the law of the child’s residence or domicile (or that of the father), Congress anticipаted that the meaning of the term would vary depending upon (1) the law in the country or State of residence or domicile and (2) the child’s date of birth. “Legitimation” is thus an evolving, rather than a fixed, concept.
26 I &N. Dec. 485, 492 n.8 (BIA 2015). Judge Holmes dismisses Cross, arguing that “[n]othing in Cross suggests that Congress intended the Act to adopt state-law ideas about whom a parent may legitimate.” Maj. Op. at 23 (emphasis in original).
But the point here, and that the BIA made in Cross, is the statute itself indicates Congress’s intent to adopt state-law definitions of legitimation. Section 1101(b)(1)(C) modifies the term “legitimated”—a term otherwise undefined in the statute—with the phrase, “under the law . . . of the father’s residence or domicile.” Judge Holmes’s approach requires us to either sever the word “legitimated” from the modifying phrase that immediately follows, or to assume the modifying phrase applies only to the process of becoming legitimated and not to the meaning of the word “legitimated” itself. The latter approach might have been defensible if Congress had elsewhere in the statute defined “legitimated” consistent with Pfeifer, but it did not do so. And even assuming Cross stands for the proposition that
The problem is that this is not one of those cases. I agree with Judge Holmes that adoption under Kansas law does not, as Schreiber contends, effectuate a parent’s legitimation of a non-biological child. See Maj. Op. 26–28. Therefore, the premise of Schreiber’s argument—that Kansas law allows for the legitimation of a non-biological child—is incorrect. As Judge Holmes notes, the Kansas adoption statute at issue here,
Because the premise of Schreiber’s argument is incorrect, Judge Holmes’s analysis—which seems to preclude any adopted non-biological child from ever being considered legitimated under
BALDOCK, Circuit Judge, concurring in part and dissenting in part:
Today, the Court reaches two conclusions. First, the Court holds that the term “legitimated,” as used in
Second, the Court concludes that Mr. Schreiber waived his gender discrimination claim because he did not present the claim to the BIA in his optional interagency appeal. But the Supreme Court has advised us that we cannot require plaintiffs to exhaust discretionary administrative remedies. Because the Court’s opinion has the effect of imposing additional exhaustion requirements not required by the relevant statute or agency rule, I dissent to this part of the Court’s judgment.
A. Meaning of Legitimated under 8 U.S.C. § 1101(b)(1)(C)
I turn first to the Court’s conclusion that
Therefore, under Chevron, the Court must first determine whether
a child legitimated under the law of the child’s residence or domicile, or under the law of the father’s residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation
The Court spends the better part of its opinion explaining how the word “legitimated” necessarily implies a biological connection. For example, the Court emphasizes the historical meaning of “legitimated” as defined by our caselaw. Pointing to Pfeifer v. Wright, the Court explains that a legitimated child is one that becomes the “lawful child of the natural father.” 41 F.2d 464, 466 (10th Cir. 1930) (emphasis added). Similarly, the Court uses dictionary definitions of the term “legitimation” (or derivatives thereof) to explain how legitimation requires a biological connection between the parent and child. While the Court fairly characterizes our caselaw and the relevant definitions of “legitimation,” I remain unpersuaded that “legitimated” as used in
Based largely on the statute’s plain language and structure, the phrase “a child legitimated” under the law of the child’s or father’s domicile is ambiguous. See Am. Fed’n of Gov’t Emps., Local 1592 v. Fed. Labor Relations Auth., 836 F.3d 1291, 1295 (10th Cir. 2016) (explaining that we should look to a statute’s text, structure, purpose, history, and relationship to other statutes to determine if the statute is ambiguous). To begin, the structure of the statute suggests that the word “legitimated” could be defined in more than one way, depending on state law. That is,
Quite the opposite, in fact. Section 1101(b)(1)(C) contains no mention of who may be legitimated, and it certainly includes no explicit requirement that the legitimated child be biologically related to the legitimating parent. The Court dismisses Congress’s failure to include a biological requirement by suggesting Congress “did not need to specify . . . that only a child’s ‘natural’ parent may be his ‘legitimating’ parent because . . . that biological connection is already implicit in the concept of legitimation.” The Court supports this contention by pointing to other sections of the original 1952 Act wherein, by the Court’s argument, Congress clearly contemplated that legitimation implied a biological relationship. See, e.g.,
For example,
Even if we look exclusively at
In sum, the plain language and structure of the statute, as well as the use of the term “legitimation” throughout the Act, supports the conclusion that a legitimated child in
Once we determine the statute is ambiguous, we must defer to the agency’s interpretation if it is “reasonable.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016). On this issue, I need not belabor the point—the agency’s interpretation of “legitimated” is reasonable. As the Court’s opinion carefully explains, the plain meaning of a “legitimated child” often infers a biological relationship between the parent and child. Therefore, while I would conclude that
B. Waiver of Gender Discrimination Claim
Although I would uphold the agency’s reasonable interpretation of the term “legitimated,” I would nonetheless remand this case to the district court for consideration of Mr. Schreiber’s constitutional challenge to the agency’s determination. In so far as the Court holds Mr. Schreiber waived his equal protection claim by failing to present it in his optional interagency appеal, I dissent.
Typically, plaintiffs must exhaust their administrative remedies before bringing their grievances to federal court. Forest Guardians v. U.S. Forest Serv., 641 F.3d 423, 430 (10th Cir. 2011). To satisfy the exhaustion requirement, plaintiffs must “‘structure their participation so that it alerts the agency to the parties’ position and contentions,’ in order to allow the agency to give the issue meaningful consideration.” Forest Guardians v. U.S. Forest Serv., 495 F.3d 1162, 1170 (10th Cir. 2007) (citing Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 764 (2004)). Claims not properly raised before the agency are waived. Id. Thus, “we often refuse to consider arguments—sometimes very good arguments—that were not presented to the agency before being presented to us.” Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010).
Nevertheless, in Darby v. Cisneros, the Supreme Court held lower courts cannot require a plaintiff to exhaust administrative remedies before seeking judicial review under the APA unless the relevant statute or agency rule specifically mandates exhaustion as a prerequisite to judicial review. 509 U.S. 137, 154 (1993); see also Farrell-Cooper Mining Co. v. U.S. Dep’t of Interior, 864 F.3d 1105, 1107 (10th Cir. 2017) (applying Darby). The Supreme Court cautioned lower courts that “impos[ing] additional exhaustion requirements beyond those provided by Congress or the agency . . . would transform § 10(c) [of the APA] from a provision designed to ‘remove obstacles to judicial review of agency action,’ into a trap for unwary litigants.” Darby, 509 U.S. at 146–47 (citing Bowen v. Massachusetts, 487 U.S. 879, 904 (1988)).
In this case, the parties agree Mr. Schreiber was not required to appeal to the BIA. See
In AAA Bonding Agency Inc. v. United States Department of Homeland Security, the Fifth Circuit reversed the district court’s holding that the plaintiffs forfeited one of their claims by pursuing an optional administrative appeal without raising that claim. 447 F. App’x 603, 612 (5th Cir. 2011) (unpublished). The court explained that “when an agency’s regulations require issue exhaustion in administrative appeals, an issue not presented to the administrative body cannot be asserted for the first time in federal court.” Id. But, relying on Darby, the Fifth Circuit concluded “federal courts do not have the authority to require a plaintiff to exhaust administrative remedies before seeking judicial review under the APA, where neither the
Although the Fifth Circuit’s opinion was unpublished, it makes good sense. Mr. Schreiber’s decision to pursue an optional administrative appeal without raising his equal protection claim should not foreclose his ability to pursue the claim in the district court. To hold otherwise would “impose additional exhaustion requirements beyond those provided by Congress or the agency . . . [and] would transform § 10(c) from a provision designed to ‘remove obstacles to judicial review of agency action,’ into a trap for unwary litigants.” Darby, 509 U.S. at 146–47 (citing Bowen, 487 U.S. at 904)).
Moreover, requiring plaintiffs who pursue optional interagency appeals to present all their claims or risk waiving judicial review would discourage discretionary appeals. Take, for example, the denial of a visa. In that situation, a plaintiff only has 63 days to file an appeal brief with the BIA. But if that person declined the optional interagency appeal, he would have six years to file the same appeal in federal court. Seе Impact Energy Res., LLC v. Salazar, 693 F.3d 1239, 1245 (10th Cir. 2012) (“APA claims are generally covered by the six-year limitations period contained in
For these reasons, I would not require Mr. Schreiber or other plaintiffs who choose to pursue optional interagency appeals to exhaust all of their claims in that discretionary appeal. In so far as the Court concludes the opposite, I respectfully dissent.