Brown et al v Department of Homeland Security et al

Filing 19

ORDER granting Plaintiffs' 15 Motion for Summary Judgment; and denying Defendants' 16 Motion for Summary Judgment. Accordingly, the Court GRANTS Plaintiffs' petition for review and REMANDS this matter for further proceedings. Defendants are ORDERED to give deference to the state determination as to the effective date of Plaintiff Fedoruk's adoption. Signed by Judge Richard A Jones. (TH)

THE HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ELENA BROWN and
DANIIL FEDORUK,

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Plaintiffs,

Case No. C16-1685-RAJ
ORDER

v.
DEPARTMENT OF HOMELAND
SECURITY, et al. 1,
Defendants.

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This matter comes before the Court on the parties’ motions for summary
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judgment. Dkt. ## 15, 16. Both motions are opposed. Dkt. ## 16, 17. For the reasons
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that follow, the Court GRANTS Plaintiffs’ Motion (Dkt. # 15) and DENIES
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Defendants’ Motion (Dkt. # 16).
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I.

BACKGROUND

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Plaintiffs Elena Brown and Daniil Fedoruk bring this action pursuant to § 10(b)
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of the Administrative Procedures Act (“APA”), 5 U.S.C. § 702, et seq., seeking review
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of Defendant U.S. Citizenship and Immigration Services’ (“USCIS”) decision denying
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On March 31, 2017, James McCament became Acting Director of U.S. Citizenship
and Immigration Services, automatically substituting for Lori Scialabba, former Acting
Director, as a party in accordance with Federal Rule of Civil Procedure 25(d). On January 20,
2017, John F. Kelly was sworn in as Secretary of the U.S. Department of Homeland Security,
automatically substituting for Jeh Johnson, former Secretary, as a party in accordance with
Federal Rule of Civil Procedure 25(d).
ORDER - 1

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Brown’s petition to classify Fedoruk, the beneficiary, as an immediate relative child
under 8 U.S.C. §§ 1101(b)(1) and 1151(b)(2)(A)(i).
A. Factual Background
Fedoruk, a native of Russia, was born on June 17, 1993 2. Dkt. # 11 at 248-50.
Fedoruk’s biological parents are Konstantin Fedoruk and Nataliya Fedoruk. Id.
Nataliya Fedoruk is also know as Natalia Robinson. Id. at 211. Brown is the paternal
aunt of Fedoruk. Id. at 237.
On June 27, 2007, Fedoruk’s biological father consented to the adoption of his
son in a document intended to be filed in King County Superior Court. On August 24,
2007, Fedoruk and his biological mother completed and signed a B1/B2 visa
application for Fedoruk. Id. at 285-86. The visa application states that Fedoruk
intended to visit his grandparents and Brown in Kent, Washington for a period of one
month. Id. On September 26, 2007, Fedoruk was issued a B1/B2 visa. Id. at 247.
On April 16, 2008, Fedoruk’s biological mother signed a “Consent of
Temporary Guardian,” giving temporary guardianship of Fedoruk to Brown for the
period of April 1, 2008 to April 1, 2011. Id. at 66-68. The “Consent of Temporary
Guardian” indicates that all expenses related to Fedoruk’s upbringing were to be paid
for by Brown. Id. Two days later, Fedoruk was admitted to the United States with an
authorized period of stay as a non-immigrant visitor until October 17, 2008. Id. at
247. He was 14 years old at that time. Id. Brown agreed to the terms of the “Consent
of Temporary Guardian” and signed the document on April 19, 2008, the day after
Fedoruk arrived in the United States. Id. On July 3, 2008, Fedoruk’s biological
mother consented to the adoption of her son in a document intended to be filed in King
County Superior Court. Id. at 47-53.

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2
Plaintiffs’ request that the Court take judicial notice of the administrative record
relevant to this case (Dkt. # 11) is granted.

ORDER - 2

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On July 16, 2008, Brown filed a petition to adopt Fedoruk in the King County
Superior Court. He was 15 years old when the petition was filed. Id. at 78-85. On
September 10, 2008, the King County Family Court received an anonymous call
alleging that the adoption of “Danny or Daniel” by “Yelena or Elena Brown” was
fraudulent and that “the child came to visit his aunt and now he is not returning back to
his mother.” Id. at 63. The caller also stated that “the aunt” was going to forge the
mother’s name and phone number and that the child’s birth father may be cooperating
with this fraudulent adoption. Id. The King County Family Court then attempted to
contact Fedoruk’s biological mother but was unable to confirm her consent to the
adoption. Id. Plaintiffs allege that Fedoruk’s biological mother suffers from mental
illness and attempted to “sabotage” his adoption and refused to speak with the
adoption case worker as a result of this illness. Plaintiffs further allege that Fedoruk’s
biological mother stopped having any contact with either Plaintiff in 2009. Dkt. # 15.
On March 16, 2011, Brown filed a Petition for Termination of Parent-Child
Relationship in the Superior Court of Washington. Id. at 82-85. The petition alleges
that Fedoruk’s biological mother would not consent to the adoption but also would not
provide Fedoruk with any support as his mother. Id. On April 25, 2011, when
Fedoruk was 17 years old, the Washington Superior Court entered an order
terminating Fedoruk’s biological mother’s parental rights. Id. at 91-92. On August
30, 2011, Brown moved that the Washington Superior Court “enter the adoption
decree nunc pro tunc as of one day prior to the adoptee’s 16th birthday (June 16, 2009)
so that [Brown] may be allowed to file an immigration petition for him as [her]
adopted son.” Id. at 80. On September 2, 2011, a Commissioner of the Superior Court
of the State of Washington issued a Decree of Adoption, granting Brown’s petition to
adopt Fedoruk. On the date the adoption was finalized, Fedoruk was 18 years old. Id.
at 75-76. On the final page of the Decree, the Commissioner added a handwritten
ORDER - 3

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notation “Nunc Pro Tunc June 16, 2009,” which is the day before Fedoruk turned 16
years of age. Id.
B. Procedural Background
On October 11, 2011, Brown filed a Form I-130, Petition for Alien Relative, on
behalf of Fedoruk. Id. at 242-284. On November 19, 2012, USCIS denied the petition
because Fedoruk did not qualify as a child because he was not under the age of 16
years old when the adoption was finalized. Id. at 200-201. On December 14, 2012,
Brown appealed the decision to the Board of Immigration Appeals (“BIA”). Id. at
177. The BIA then dismissed the appeal. Id. at 119.
On August 4, 2014, Plaintiffs filed a case in this District, seeking review of the
USCIS and the BIA’s decisions. See Brown v. DHS, 2:14-cv-1184-JCC (W.D.
Wash.). The parties then agreed that the USCIS would seek remand of the petition
from the BIA in order to supplement the record before the USCIS and voluntarily
dismissed the case. Id. On February 26, 2015, the USCIS filed a motion with BIA to
re-open and remand Fedoruk’s Form I-130 proceedings to the USCIS for further
processing. Id. at 105-116. The USCIS then sent Brown a Request for Evidence
(“RFE”) regarding Fedoruk’s adoption. Id. at 95-99. On October 7, 2015, the USCIS
issued a Notice of Intent to Deny (“NOID”) the petition and gave Brown the
opportunity to respond to a newly issued decision from the BIA, Matter of Huang, 26
I. & N. Dec. 627 (BIA 2015) (“Huang”). Id. 32-22.
After receiving Brown’s response, the USCIS denied her petition on February
11, 2016, and sought certification of the decision from the BIA. Id. at 19-26. On
September 29, 2016, the BIA adopted and affirmed the USCIS decision. Id. at 1-9.
On October 29, 2016, Plaintiffs filed this action, seeking review of the denial of
Brown’s petition. Dkt. # 1. Plaintiffs argue that the BIA improperly applied the

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ORDER - 4

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decision in Huang to Plaintiffs’ case and failed to “promote the clear, unambiguous
goals of the INA.” Dkt. # 15.
II.

LEGAL STANDARD

Summary judgment is appropriate if there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). In the context of a case where a party is seeking review of an
administrative decision, “[a] district court is not required to resolve any factual issues
when reviewing administrative proceedings.” Occidental Eng’g Co. v. INS, 753 F.2d
766, 769 (9th Cir.1985). “Instead, the district court's function is to determine whether
or not as a matter of law the evidence in the administrative record permitted the
agency to make the decision it did.” Boyang, Ltd. v. I.N.S., 67 F.3d 305 (9th Cir.
1995). Accordingly, summary judgment “is an appropriate mechanism for deciding
the legal question of whether the agency could reasonably have found the facts as it
did.” Occidental Eng’g Co., 753 F.2d at 770.
Under the Administrative Procedure Act, a district court may review and set
aside a final agency action if it was “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “Agency action should
be overturned only when the agency has ‘relied on factors which Congress has not
intended it to consider, entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a difference in view or the
product of agency expertise.’” Safari Aviation Inc. v. Garvey, 300 F.3d 1144, 1150
(9th Cir. 2002) (quoting Pac. Coast Fed’n of Fishermen's Ass’ns, Inc. v. Nat’l Marine
Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir. 2001)). It is an abuse of discretion if
the agency acts as if “there is no evidence to support the decision or if the decision was

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ORDER - 5

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based on an improper understanding of the law.” Kazarian v. U.S. Citizenship and
Immigration Services, 596 F.3d 1115, 1118 (9th Cir. 2010) (internal citations omitted).
The standard is “highly deferential, presuming the agency action to be valid.”
Kern County Farm Bureau v. Allen, 450 F.3d 1072, 1076 (9th Cir. 2006). The
reviewing court must give the agency's interpretation of its own regulations
“substantial deference and must give such interpretation controlling weight unless
doing so is inconsistent with the regulation or plainly erroneous.” Independent
Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir. 2000).
III.

DISCUSSION

For a child of a U.S. citizen to obtain lawful permanent resident status, the U.S.
citizen parent must file a Form I-130, Petition for Alien Relative, on behalf of the
beneficiary to classify the child as an “immediate relative.” 8 U.S.C. §
1154(a)(1)(A)(i). Under 8 U.S.C. § 1151(b)(2)(A)(i), an “immediate relative” is
defined as “the children, spouses, and parents of a citizen of the United States.” A
“child” is defined as “an unmarried person under twenty-one years of age who is . . .
adopted while under the age of sixteen years if the child has been in the legal custody
of, and has resided with, the adopting parent or parents for at least two years.”
8 U.S.C. § 1101(b)(1)(E)(i).
Previous to the decision in Huang, the BIA applied a strict interpretation of the
language in 8 U.S.C. § 1101(b)(1)(E)(i), holding that “[t]he act of adoption must occur
before the child attains the age [specified in the Immigration and Nationality Act].”
See Matter of Cariaga, 15 I. & N. Dec. 716, 717 (BIA 1976). 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 purposes.” See Matter of Drigo, 18
I. & N. Dec. 223, 224 (BIA 1982). On July 8, 2015, the BIA modified its stance in
Huang, noting that the previous rule that the BIA had applied was “too limiting in that
ORDER - 6

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it does not allow us to adequately consider the interests of family unity.” Huang, 26 I.
& N. Dec. at 631. Pursuant to holding in Huang the BIA will recognize a nunc pro
tunc order relating to an adoption “where the adoption petition was filed before the
beneficiary's 16th birthday, the State in which the adoption was entered expressly
permits an adoption decree to be dated retroactively, and the State court entered such a
decree consistent with that authority.” Id.
In the instant case, the USCIS applied the holding in Huang and found that,
although Brown’s petition to adopt Fedoruk was filed before Fedoruk turned 16 years
old, there was no authority in Washington state law that expressly permits an adoption
decree to be entered nunc pro tunc. The USCIS also noted that state case law
established that the equitable remedy of nunc pro tunc was a tool to “correct [] the
record so that the record accurately reflects the court’s decision,” rather than “remedy
inaction.” Dkt. # 11 at 19-26.
A. Administrative Procedure Act Claim
Defendants, the Department of Homeland Security; USCIS; James McCament,
Acting Director of U.S. Citizenship and Immigration Services; John F. Kelly,
Secretary of the U.S. Department of Homeland Security; and Kathy Baran, USCIS
California Service Center Director, argue that the USCIS’s and BIA’s interpretation of
8 U.S.C. § 1101(b)(1)(e) is entitled to Chevron deference and should be upheld.
Following the two-step approach of the Supreme Court in Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984),
the Court must first determine whether Congress has directly spoken to the precise
question at issue. See Humane Soc. of U.S. v. Locke, 626 F.3d 1040, 1054 (9th Cir.
2010). If the statute is silent or ambiguous with respect to the specific issue, the Court
must then determine whether the agency’s answer is based on a permissible
construction of the statute. Id. “If a statute is ambiguous, and if the implementing
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agency’s construction is reasonable, Chevron requires a federal court to accept the
agency’s construction of the statute, even if the agency’s reading differs from what the
court believes is the best statutory interpretation.” Id.; see also Chevron, U.S.A., Inc.
v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694
(1984).

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To be considered a “child” for purposes of derivative citizenship under 8 U.S.C.
§ 1431, an adopted child must be “adopted while under the age of sixteen years.”
8 U.S.C. § 1101(b)(1)(E)(i). However, the statute does not say whether the term
“adopted” refers to the effective date of an adoption, or whether the term refers to the
date that the act of adoption occurred. Therefore, the statute is ambiguous with respect
to the specific issue of whether the term “adoption” as used in the statute requires the
adoption decree to be issued before the child reaches the age of 16 and the Court must
proceed to the second step of the Chevron analysis.

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At step two of the Chevron analysis, the Court must determine whether the
BIA’s interpretation of 8 U.S.C. § 1101(b)(1)(E)(i) is reasonable. Defendants argue
that Huang is a reasonable interpretation of the statute because it balances the
legitimate concern of deterring adoptions entered only to circumvent immigration
restrictions with the desire to preserve family unity. Defendants also argue that while
state courts typically have authority over domestic relations such as marriage and
family law, immigration law exists independently of these laws and requires a separate
evaluation of relationships that “can be used to perpetrate immigration fraud.” Dkt. #
16.
At issue is the BIA’s construction of the word “adopted” in § 1101(b)(1)(e)(i).
While it is true that federal immigration law exists independently of laws governing
domestic relations, “where the term in question involves a legal relationship that is
created by state or foreign law, the court must begin its analysis by looking to that
ORDER - 8

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law.” Minasyan v. Gonzales, 401 F.3d 1069, 1076 (9th Cir. 2005). This is not a
situation, as Defendants allege, where the question at issue is a result of a conflict
between federal and state law. This matter is more accurately described as a question
of whether a federal agency is giving due deference to state law in an area of law that
is typically the province of the States; there is no federal law of domestic relations.
See De Sylva v. Ballentine, 351 U.S. 570, 580, 76 S.Ct. 974, 100 L.Ed. 1415 (1956).
Further, while the Supreme Court has held that “scope of a federal right is, of course, a
federal question, ... that does not mean that its content is not to be determined by state,
rather than federal law.” Id. On September 2, 2011, a Commissioner of the Superior
Court of the State of Washington issued a Decree of Adoption, nunc pro tunc,
modifying the effective date of the decree to June 16, 2009. Therefore, Fedoruk was
adopted prior to his 16th birthday as a matter of Washington law.
There is a strong federal policy favoring federal recognition of valid state court
judgments. See Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Eng’rs,
531 U.S. 159, 172–73, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) (explaining that the
courts expect a “clear indication” of congressional intent when an “administrative
interpretation alters the federal-state framework by permitting federal encroachment
upon a traditional state power”). Further, it is well understood that “state courts
exercise full authority over the judicial act of adoption.” See Ojo v. Lynch, 813 F.3d
533, 539 (4th Cir. 2016) (citing to Adoptive Couple v. Baby Girl, 570 U.S. 637, 656,
133 S. Ct. 2552, 2565, 186 L. Ed. 2d 729 (2013)). The BIA attempted to address this
concern in Huang by instituting its requirement that the State in which the adoption
was entered expressly permit an adoption decree to be dated retroactively in order for a
nunc pro tunc decree to be recognized. Huang, 26 I & N. Dec. at 631. The BIA
specifically states that they “cannot give full faith and credit to a State adoption
decree” without regard to whether state law specifically allows an adoption to be dated
ORDER - 9

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retroactively. Therefore, this prong of the Huang test prong amounts to an assessment
by a federal agency of whether a state court properly applied that state’s law. This
Court agrees with the only Circuit Court to analyze the holding in Huang 3, that if
Congress “sought to place the interpretation [of the term adopted] in the hands of an
administrative agency, such as the BIA, Congress would have made that intention
‘unmistakably clear.’” Ojo, 813 F.3d at 540. Congress did not do so here.
Defendants’ argument that Huang is a reasonable interpretation of the statute
because it balances the preservation of family unity with fraud prevention is similarly
unpersuasive. While the rule in Huang no longer discounts all nunc pro tunc adoption
decrees issued after the child reaches the age of 16, it now only recognizes such
adoption decrees after it determines that state law allows nunc pro tunc adoption
decrees and, in cases where a decree was issued, that the state court acted consistently
with that authority. Huang, 26 I & N. Dec. at 631. Thus, the BIA attempts to address
fraudulent adoptions by paring down the total amount of allowed nunc pro tunc
adoption decrees by supplanting the state court’s interpretation of state law with its

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3

In Amponsah v. Holder, 709 F.3d 1318, 1319 (9th Cir.), opinion withdrawn,
736 F.3d 1172 (9th Cir. 2013), the Ninth Circuit held that BIA’s “blanket rule against
recognizing state courts’ nunc pro tunc adoption decrees” as set out in Cariaga was an
impermissible construction of §1101(b)(1)(E)(i) under Chevron because it gave “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.” Id. After the Amponsah opinion was
issued, the Ninth Circuit withdrew it after finding out that the BIA was considering
whether to modify or overrule Cariaga. After the decision in Huang, the Ninth Circuit
declined to determine whether the BIA’s new rule was a permissible construction of
the statute under Chevron, and remanded the case back to the BIA. Amponsah v.
Lynch, 627 F. App'x 592, 594 (9th Cir. 2015). In light of the Ninth Circuit’s
subsequent withdrawal of its initial decision in Amponsah, its’ holding is not
dispositive, but its reasoning is persuasive for the purposes of this Motion.
ORDER - 10

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own interpretation of state law, and not by determining whether there was actually a
valid adoption. This is not a reasonable interpretation of the statute. Defendants do
not provide persuasive argument that this new rule acts as a tool to prevent fraud such
that it should be emphasized over the goal of preservation of family unity. Dkt. # 16 at
15. The Court finds that the BIA’s interpretation of 8 U.S.C. § 1101(b)(1)(E)(i) is not
entitled to deference and as a result, the BIA abused its discretion in denying Brown’s
petition.
B. Equal Protection Claim
Plaintiffs also argue that Defendants’ application of the decision in Huang
violates the equal protection guarantee of the U.S. Constitution because it treats
similarly situated persons differently by differentiating between adoptees that live in
States that have express statutory authority for backdating adoption decrees and
adoptees whose adoptions have been backdated based on their respective State’s
application of the common law concept of nunc pro tunc to adoption decrees.
It is undisputed that the Due Process Clause of the Fifth Amendment guarantees
individuals equal protection under the law. Dillingham v. INS, 267 F.3d 996, 1004
(9th Cir. 2001). Where, as here, the classification between “types” of adoptees is not
based on membership in a protected class and does not burden a fundamental
constitutional right, the proper standard of review is rational basis scrutiny. See
Ursack Inc. v. Sierra Interagency Black Bear Grp., 639 F.3d 949, 958 (9th Cir. 2011);
see also Alvarenga-Villalobos v. Ashcroft, 271 F.3d 1169, 1174 (9th Cir. 2001)
(“Distinctions between different classes of aliens in the immigration context are
subject to rational basis review and must be upheld if they are rationally related to a
legitimate government purpose.”). Therefore, the Court must consider whether the
BIA’s interpretation of 8 U.S.C. § 1101(b)(1)(E)(i) in Huang is rationally related to a
legitimate government purpose. As no suspect class is involved and the only issue is
ORDER - 11

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whether Defendants’ interpretation of the statute is rational, Plaintiff’s equal protection
argument can be “folded into the APA argument”. Ursack Inc., 639 F.3d at 955, 958
(noting that the standard of review under the APA is identical to rational basis
scrutiny).
As noted above, the BIA’s holding in Huang is not rationally related to the
legitimate government purpose of preventing fraudulent adoptions. Defendants argue
that Huang seeks to deter adoptions that are back-dated simply to confer an
immigration benefit, but does not provide persuasive argument that the interpretation
and rules set out that decision are rationally related to that purpose. Huang merely
attempts to decrease the number of adoptions that are backdated nunc pro tunc; it does
not take into account whether there is actual fraud or the individual circumstances of
each case.
Fedoruk’s circumstances are a perfect example of a situation where the BIA’s
interpretation of the statute minimizes the importance of family unity in favor of a rule
that does not further the legitimate purpose of fraud prevention. Fedoruk’s biological
parents are not in contact with Plaintiffs and provide no support. Brown first filed a
petition to adopt Fedoruk well before he was 16 years old. Due to circumstances that
were out of Plaintiffs’ control, they were unable to finalize this adoption until 2011.
Yet, Brown’s Form I-130 Petition was still denied. The Court notes that the
conclusions reached in this Order are in keeping with the legislative history of the
Immigration and Nationality Act. While Congress was concerned about the use of
fraudulent adoption to gain immigration benefits, they provided children with liberal
treatment because they recognized the importance of family unity. See S. Rept. 1515,
81st Cong., 2d Sess. 468. In this case, the BIA’s treatment of Fedoruk is not in
keeping with history behind the statute at issue and the liberal treatment afforded to
children. Therefore, Plaintiff’s Motion for Summary Judgment is GRANTED.
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IV.

CONCLUSION

For all the foregoing reasons, Plaintiff’s Motion for Summary Judgment (Dkt. #
15) is GRANTED and Defendants’ Motion for Summary Judgment is DENIED (Dkt.
# 16). Accordingly, the Court GRANTS Plaintiffs’ petition for review and
REMANDS this matter for further proceedings. Defendants are ORDERED to give
deference to the state determination as to the effective date of Plaintiff Fedoruk’s
adoption.

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Dated this 7th day of March, 2018.

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A

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The Honorable Richard A. Jones
United States District Judge

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ORDER - 13