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By George Kennedy

On February 16, 2016, the Fourth Circuit issued its published opinion in the agency review case Adebowale Oloyde Ojo v. Loretta Lynch. In its order, the Fourth Circuit vacated the order of the Board of Immigration Appeals (“BIA”) denying a motion to reopen the removal proceedings of Adebowale Oloyde Ojo, a native of Nigeria and adopted son of a United States citizen.

Ojo’s Residence in the United States

Ojo was born in Nigeria in 1983 and lawfully entered the United States in 1989. Soon after entering the United States, Ojo’s uncle, a United States citizen, became his legal guardian. Ojo lived with his uncle from the age of six to the age of sixteen, at which point Ojo’s uncle filed a petition to adopt Ojo. In 2001, after Ojo had turned seventeen, the Circuit Court for Montgomery County, Maryland entered a judgment of adoption.

Between 2009 and 2012, Ojo was convicted of two-drug related offenses. In light of Ojo’s convictions, and based in the belief that Ojo had not derived U.S. citizenship as an adoptive child under 8 U.S.C. § 1101(a)(43)(B), the Department of Homeland Security (“DHS”) initiated proceedings to remove him from the United States under 8 U.S.C. § 1227(a)(2)(A)(iii).

Statutory Framework and Removal Proceedings

Under 8 U.S.C. § 1227(a)(2)(A)(iii), the DHS is authorized to order that certain individuals be removed from the United States if the individuals are aliens and commit an “aggravated felony.” Ojo’s drug-related offenses qualify as “aggravated felonies” and therefore, the DHS is authorized to order his removal so long as he qualifies as an alien. A foreign-born child, however, is not deemed an alien, and thus is deemed a naturalized U.S. citizen under 8 U.S.C. § 1431(a) and § 1101(b)(1)(E) as long as the child was adopted by a citizen-parent while under the age of sixteen years.

In a removal proceeding in 2014, the immigration judge determined that Ojo was removable since he had committed an aggravated felony and was not a U.S. citizen. Critically, the court held that since Ojo was not adopted by his uncle until he was seventeen years old, he did not qualify as an adopted child under § 1101(b)(1)(E), and therefore had not become a U.S. citizen under 8 U.S.C. § 1431. The Board of Immigration Appeals affirmed the immigration judge’s ruling, agreeing that Ojo did not qualify as an adopted child under the statute because of Ojo’s adoption taking place after he had turned sixteen.

Ojo’s Motion to Reopen Removal Proceedings

Based upon a nunc pro tunc order, Ojo filed a motion to reopen the removal proceedings against him. The nunc pro tunc order, a court order that gives retroactive legal effect, was entered by a Maryland state court and made Ojo’s adoption effective on the day before he turned sixteen. Therefore, under the nunc pro tunc order, Ojo qualified as a U.S. citizen by being adopted by his U.S. citizen uncle while under the age of sixteen. The Board of Immigration Appeals, however, denied Ojo’s motion to reopen, holding that it does not recognize nunc pro tunc orders after a child reaches the age limit for the filing of the adoption petition. On appeal, Ojo alleges that the BIA improperly denied Ojo’s motion to reopen the removal proceedings.

BIA’s Denial of Ojo’s Motion to Reopen Vacated

The Fourth Circuit agreed with Ojo that the BIA should have allowed the reopening of the removal proceedings. In so holding, the Fourth Circuit argued that the BIA’s interpretation of § 1101(b)(1)(E) impermissibly conflicted with the Maryland state court’s nunc pro tunc order since the law of domestic relations is the domain of states and federal agencies may not interfere with the exercise of state power on the subject absent clear congressional authorization.

As the Fourth Circuit emphasized, “the Federal Government, through our history, has deferred to state-law policy decision with respect to domestic relations.” Therefore, federal agency decisions that override the orders of state courts in regards to domestic relations are inherently suspect. As the Fourth Circuit explained, federal agencies need clear Congressional authorization before encroaching upon traditional state powers. In this case, the Fourth Circuit held that the BIA was lacking such authorization.

The BIA, in refusing to reopen Ojo’s removal proceedings, essentially disregarded the nunc pro tunc order of the Maryland state court which declared that Ojo was adopted by his uncle before he turned sixteen and therefore became a U.S. citizen by virtue of that adoption under 8 U.S.C. § 1101(a)(43)(B). The Fourth Circuit held that the BIA’s disregard of the nunc pro tunc order was impermissible because the BIA is not empowered to review state court adoption orders. Instead, the BIA was obligated to adhere to the order of the Maryland state court which declared that Ojo was adopted before he turned sixteen. Therefore, the BIA should have reopened Ojo’s removal proceedings since the nunc pro tunc order qualified Ojo as a U.S. citizen.

Vacated and Remanded

The Fourth Circuit held that the BIA erred as a matter of law in denying Ojo’s motion to reopen removal proceedings, and consequently vacated the BIA order and remanded the case for further proceedings.

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