SEATTLE (CN) - U.S. immigration officials improperly ordered the deportation of a Ghanaian immigrant whose age of adoption here toed the cutoff, the 9th Circuit ruled.
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."
In a separate 2008 ruling, the BIA found affirmed that Apori's marriage was a sham.
A three-judge panel of the 9th Circuit granted Apori relief Friday, taking issue with the BIA's blanket rule against recognizing state courts' nunc pro tunc adoption decrees.
"The BIA's interpretation is unreasonable because it gives little or no weight to the federal policy of keeping families together, fails to afford deference to valid state court judgments in an area of the law - domestic relations - that is primarily a matter of state concern and addresses the possibility of immigration fraud through a sweeping, blanket rule rather than considering the validity of nunc pro tunc adoption decrees on a case-by-case basis," Judge Raymond Fisher wrote for the panel.
Here the statutory language about adoption "could refer to the date the adoption is effective under state law, as Apori asserts, or to the date the adoption process is concluded, as the government maintains," the ruling states.
"The statute is therefore ambiguous with respect to the specific issue presented," Fisher added.
The panel also faulted the BIA for invalidating all nunc pro tunc adoption decrees.
"This rule presumes that every nunc pro tunc decree is spurious, thus sweeping aside meritorious, nonfraudulent, nunc pro tunc adoption decrees that recognize a bona fide family relationship that actually existed before the child turned 16," the ruling says.
As to the sham marriage finding, the panel found the BIA violated Apori's due process rights in not allowing her to present evidence in her defense.
The government could not bring up the marriage fraud question on appeal as an alternative ground for denying Apori's petition because it failed to raise issue in the original deportation proceedings.
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