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OJO v. LORETTA E. LYNCH, No. 15-1138

Decided: February 16, 2016

The Fourth Circuit found that that the Board of Immigration Appeals (“BIA”) abused its discretion when the Board denied Petitioner’s motion to reopen his removal proceedings.  The Court granted the petition for review, vacated the BIA’s decision, and remanded for further proceedings.

Petitioner, Adebowla Oloyede Ojo, lawfully entered the United States at the age of six, and shortly after his arrival in country, Ojo’s uncle—a United States citizen—became his legal guardian.  On June 19, 2000, when Ojo was sixteen, Ojo’s uncle/guardian 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 judgement for adoption.  During Ojo’s twenties he was convicted of two drug-related offenses—either of which qualified as an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(B).  On May 6, 2013, in light of Ojo’s convictions, and alleging that Ojo had not derived citizenship as an adopted child under 8 U.S.C. § 1101(b)(1)(E), the Department of Homeland Security (“DHS”) charged Ojo with removability form the Unites States under 8 U.S.C. § 1227(a)(2)(A)(iii).  On June 25, 2014 Ojo appealed the decision of an immigration judge who determined that Ojo had not derived citizenship from adoption and was therefore removable from the country.  Although Ojo advised the BIA that his adoptive father would seek an nunc pro tunc order from the Maryland state court specifying that Ojo’s adoption became effective before he was sixteen, BIA concluded on January 12, 2015, that the nunc pro tunc would not warrant remand and ultimately the BIA denied his motion to reopen his removal proceeding.  BIA relied on its prior decisions in Matter of Cariaga and Matter of Drigo, observing that it, “does not recognize nunc pro tunc adoption decrees after a child reaches the age limit for both filing of the adoption petition and decree.”

In Cariaga, the BIA established a blanket rule that, “[t]he act of adoption must occur before the child attains the age specified in the INA,” which precluded any consideration of a nunc pro tunc order entered after the relevant birthday but made effective before that date.  Thereafter in Drigo, relying on Cariaga, the BIA 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 purpose.  While the BIA did modify the Cariaga/Drigo rule during the pendency of the instant case in Matter of Huang, the Respondent still asserted that Ojo did not derive citizenship.  In Huang the BIA asserted that it would recognize a nunc pro tunc “where…the State in which the adoption was entered expressly permits an adoption decree be dated retroactively.”  The Court found, however, that the BIA had abused its discretion in disregarding Maryland state court’s facially valid nunc pro tunc order.  Using a two-step test to evaluate the BIA’s interpretation, the Court first looked to the statutory language to determine if the term “adopted” denotes the effective date of the adoption.  Reasoning that the term “adopted” was not ambiguous—which ended the judicial inquiry—and recognizing that adoption is a state matter, the Court concluded that, “[w]hen an individual has been “adopted” under 1101(b)(1)(E)(i) depends on the effective date of the adoption as set forth in the relevant state court instruments,” not by the discretionary decision of the BIA.

Accordingly, the Court granted Petitioner’s petition for review; and vacated and remanded

Full Opinion

Aleia M. Hornsby