Immigration Rule on Retroactivity Dissected
(CN) - The 9th Circuit demanded a status report Thursday as immigration authorities reconsider their blanket rule against recognizing retroactive adoption orders.
Attorney General Eric Holder apparently brought the matter to the court's attention in seeking a panel rehearing of a case where a Ghanaian immigrant faces deportation because her age of adoption in the United States toes the cutoff.
Doris Amponsah Apori was born in Ghana in March 1984 and came to the United States as a visitor in 1999, when she was 15. Her aunt, a U.S. citizen, initiated adoption proceedings around that time, but the adoption was not granted until July 2000 when Apori was 16.
In May 2001, U.S. immigration officials refused to adjust Apori's status because she was adopted after the age of 16.
A Washington state court entered a nunc pro tunc order, which makes a ruling retroactive, about five months later to make Apori's adoption decree effective since Feb. 28, 2000, four days before her 16th birthday.
Apori then married a U.S. citizen in 2002, but the Department of Homeland Security initiated removal proceedings against her in 2004.
After her husband filed spousal visa petition on Apori's behalf the following year, U.S. Citizenship and Immigration Services denied that petition in 2007, finding that Apori had entered into "a sham marriage to obtain immigration benefits."
In 2008, an immigration judge declined to rule on whether Apori was adopted before the age of 16, but concluded she did not show she had "been in the legal custody of, and has resided with, the adopting parent ... for at least two years," and could not meet the definition of "child."
The Board of Immigration Appeals (BIA) then affirmed, finding the visa petitions are "presumptively not grantable because an adoption decree entered nunc pro tunc after the age of 16 is not given retroactive effect under the immigration laws."
For this finding, the board had cited its 1976 decision in Matter of Cariaga that adopted a blanket rule against recognizing nunc pro tunc adoption orders.
A three-judge panel of the 9th Circuit took issue with the rule this past March and granted Apori's petition for review.
In petitioning for a panel rehearing, Holder noted that "the board has recently called for supplemental briefing in two cases presenting the issue of whether the rule in Matter of Cariaga should be overruled or modified."
This led the court to withdraw its March ruling on Thursday and demand a status report from the attorney general
Holder has 14 days, and within 90 days periodically thereafter, to advise the court "of the status of the Board of Immigration Appeals' proceedings in the cases in which the board is considering whether to overrule or modify Matter of Cariaga," the order states.
On the sham marriage finding, the panel had said in March that the board violated Apori's due process rights in not allowing her to present evidence in her defense.