BIA HOLDS THAT AN I-130 BENEFICIARY WHOSE ADOPTION DECREE WAS ISSUED AFTER SHE WAS 16 YEARS OLD, BUT WITH A RETROACTIVE EFFECTIVE DATE PRIOR TO HER 16TH BIRTHDAY, CAN QUALIFY AS A “CHILD” ADOPTED WHILE UNDER THE AGE OF 16 AS REQUIRED BY INA § 101(b)(1)(E)(i).
On July 8, 2015, the Board of Immigration Appeals (BIA or Board), in a comprehensive opinion modifying two established adoption-related precedent decisions, Matter of Cariaga, 15 I & N Dec. 716 (BIA 1976) and Matter of Drigo, 18 I & N Dec. 223 (BIA 1982), liberalized its position in those cases “to adequately consider the interests of family unity”. Initially noting the general rule that, for an I-130 filed on behalf of an adopted child to be approved, the beneficiary must qualify as a “child” (be unmarried and under 21 years old) who was adopted while under the age of 16 and has been in the legal custody of – and resided with – the adopting parent for at least 2 years, the Board explained that the phrase “adopted while under the age of sixteen years” had never been defined in the Act or regulations. Next, in analyzing retroactive adoption orders, the BIA reviewed its Cariaga (adoption not valid for immigration purposes where process initiated after beneficiary turned 18, even though decree was made retroactive to a date 12 years earlier) and Drigo (adoption decree not effective for immigration purposes as of the date it was entered nunc pro tunc) decisions, stating that those two cases had hinged on Congress’ perceived policy interests in 1) family unification and 2) preventing fraudulent adoptions. Finding that the Cariaga/Drigo “blanket rule” that retroactive and nun pro tunc adoption orders are invalid for immigration purposes “is too limiting” in that it does not consider the interests of family unity, the BIA held that an I-130 can now be approved where the adoption petition was filed before the beneficiary’s 16th birthday, the State where the adoption occurs expressly permits an adoption decree to be dated retroactively, and the State court entered the decree consistent with that authority. The Board thus concluded that the phrase “adopted while under the age of sixteen years” allows for such a policy change as long as the adoption process is initiated before the beneficiary reaches 16. Matter of Huang, 26 I & N Dec. 627 (BIA 2015).
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