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Matter of R. HUANG, Beneficiary of a visa petition

filed by Mei Huang, Petitioner

Decided July 8, 2015 

U.S. Department of Justice 

Executive Office for Immigration Review 

Board of Immigration Appeals 

 The beneficiary of a visa petition who was adopted pursuant to a State court order that 

was entered when the beneficiary was more than 16 years old, but with an effective date 

prior to his or her 16th birthday, may qualify as an adopted child under section 

101(b)(1)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(E)(i)

(2012), so long as the adoption petition was filed before the beneficiary’s 16th birthday 

and the State in which the adoption was entered expressly permits an adoption decree to 

be dated retroactively. Matter of Cariaga, 15 I&N Dec. 716 (BIA 1976), and Matter of 

Drigo, 18 I&N Dec. 223 (BIA 1982), modified. 

FOR PETITIONER: Wayne J. Chi, Esquire, San Francisco, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Michael J. Sheridan, 

Associate Counsel 

BEFORE: Board Panel: MALPHRUS and MULLANE, Board Members. Concurring 

Opinion: CREPPY, Board Member. 

MALPHRUS, Board Member: 

In a decision dated August 17, 2009, the District Director revoked the 

approval of the petitioner’s visa petition, which she had filed on behalf of

the beneficiary as her adopted child pursuant to section 101(b)(1)(E)(i) of 

the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(E)(i) (2006). 

The petitioner has appealed from that decision. The appeal will be 

sustained in part and the record will be remanded. 

I. FACTUAL AND PROCEDURAL HISTORY

The beneficiary, who was born in China on March 22, 1988, entered the 

United States as a nonimmigrant visitor on February 22, 2002, when she 

was nearly 14 years old. The petitioner, who is the beneficiary’s paternal 

aunt, filed a petition to adopt the beneficiary in Hawaii on February 2, 

2004, 2 months before the beneficiary’s 16th birthday. A State court judge

issued an adoption decree on May 3, 2004, after the beneficiary’s 
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16th birthday, but the effective date of the decree was made retroactive to 

February 2, 2004, the day the petition was filed. 

In May 2006, the petitioner, who was naturalized in 2004, filed a visa 

petition to accord the beneficiary immediate relative status as her adopted 

child. The petition was initially approved, but the District Director later 

revoked it, finding that the adoption was not valid for immigration purposes 

because it had not occurred before the beneficiary reached the age of 16. 

II. ISSUE

 The question before us is whether a 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” who was “adopted while 

under the age of sixteen,” as required by section 101(b)(1)(E)(i) of the Act. 

III. ANALYSIS

For a beneficiary to qualify as an adopted child, the petitioner must 

establish that the beneficiary qualifies as a “child,” that is, he or she must 

be an unmarried person under 21 years of age, who was “adopted while 

under the age of sixteen years” and has been in the legal custody of, and 

resided with, the adopting parent for at least 2 years. Section 

101(b)(1)(E)(i) of the Act. The regulations also require that “the adoption 

took place before the beneficiary’s sixteenth birthday.” 8 C.F.R. 

§ 204.2(d)(2)(vii) (2015); see also 8 C.F.R. § 204.2(d)(2)(vii)(C) (providing 

that “the child must have been under 16 years of age when the adoption is 

finalized”). 

 The phrase “adopted while under the age of sixteen years” is not defined 

in the Act or regulations. Based on “the language itself, the specific 

context in which that language is used, and the broader context of the 

statute as a whole,” we conclude that the statutory language is ambiguous 

as to whether a retroactive adoption decree is valid for immigration 

purposes. Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997); see also 

Matter of C-T-L-, 25 I&N Dec. 341, 344−45 (BIA 2010). 

A. Retroactive Orders of Adoption 

 In Matter of Cariaga, 15 I&N Dec. 716 (BIA 1976), we held that an 

adoption was not valid for immigration purposes where the adoption 

process was initiated after the beneficiary was 18 years old and the decree

was made retroactive to a date 12 years earlier. We concluded that the age 

restriction in section 101(b)(1)(E) of the Act should be given a literal 
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interpretation and that, despite the retroactive effect given to the adoption 

by the State court, “an adoptive relationship was not created.” Id. at 717. 

Relying on Cariaga, we subsequently concluded in Matter of Drigo, 

18 I&N Dec. 223 (BIA 1982), that for immigration purposes, we do not 

recognize an adoption decree as being effective as of the date it was entered

nunc pro tunc.

1

 We noted in that case that it was “Congress’ intent that the 

age restriction in section 101(b)(1)(E) be construed strictly.” Id. at 224. 

 Our decisions in Cariaga and Drigo discussed the two major policy 

interests that Congress addressed in enacting the laws relating to adoptions: 

fostering family unification and preventing ad hoc or fraudulent adoptions. 

We explained that “Congress was concerned with the problem of keeping

the families of immigrants united” and therefore “provided liberal treatment 

of children.” Matter of Cariaga, 15 I&N Dec. at 717; see also Matter of 

Yuen, 14 I&N Dec. 71, 72 (BIA 1972) (noting that the adoption provision

“was designed to prevent hardship and to keep families together”). 

However, we also noted that when Congress passed the 1952 Act, it 

chose not to extend immigration benefits to adopted children “for fear that 

fraudulent adoptions would provide a means of evading the quota 

restrictions.” Matter of Cariaga, 15 I&N Dec. at 717. In 1957, Congress 

added a provision to include adopted children within the definition of 

a “child,” but it imposed an age restriction in an attempt to “distinguish 

between bona fide adoptions, in which a child has been made a part of 

a family unit, and spurious adoptions, effected in order to circumvent 

statutory restrictions.” Id.; see also Matter of M-, 8 I&N Dec. 118, 

119 (BIA 1958; A.G. 1959) (noting that “safeguards were written into law 

designed to prevent abuses, such as adoptions entered into for the purpose 

of evading the immigration laws”). 

Not only are such spurious adoptions in violation of the statutory 

restrictions, they do not advance the interests of family unification. Where 

there is no indication that the biological parents are unable to continue their 

parental responsibilities, an adoption can actually undermine family unity 

by legally severing the biological family unit for improper purposes. 

 Congress has expressed concern about efforts to avoid the statutory 

quota restrictions, whether through fraudulent adoptions that have no 

factual basis for the underlying relationship or those that, despite having the 

 

1 Nunc pro tunc, which literally means “now for then,” refers to a court’s power to give 

an order “retroactive legal effect.” Black’s Law Dictionary 1174 (9th ed. 2009); see also

Singh v. Mukasey, 533 F.3d 1103, 1110 (9th Cir. 2008) (stating that nunc pro tunc “does 

not imply the ability to alter the substance of that which actually transpired or to backdate 

events to serve some other purpose”) (quoting United States v. Sumner, 226 F.3d 1005, 

1010 (9th Cir. 2000)). 
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appearance of validity, are actually motivated by a desire to circumvent the 

immigration laws. It is these latter adoptions, which are the most difficult 

to identify, that Congress primarily targeted through the statutory 

restrictions for adopted children. See Matter of Repuyan, 19 I&N Dec. 119, 

122 (BIA 1984) (stating that Congress intended to “prevent abuse through 

ad hoc adoptions made only for the purpose of circumventing the 

immigration laws”). 

 It was within the purview of Congress to establish an age limitation to 

discourage adoptions that are entered into for the purpose of obtaining 

immigration benefits. This is so even if its line drawing has the effect of 

excluding some adoptions that are bona fide; a statutory scheme of this 

nature will inevitably exclude some valid relationships and include some 

that are not valid. See Romero-Ochoa v. Holder, 712 F.3d 1328, 1331 (9th 

Cir. 2013) (holding that Congress could rationally draw conclusive lines in 

drafting immigration laws, “even though [they] may prove over- or underinclusive in individual cases”). 

 As the concurring opinion notes, the process by which the Department 

of Homeland Security (“DHS”) evaluates a visa petition for an adopted 

beneficiary involves more than determining if the age limits have been met 

and the State court has approved the adoption. See Matter of Marquez, 

20 I&N Dec. 160, 163−65 (BIA 1990). However, the DHS explained that 

in assessing whether an adoption is bona fide, it can be very difficult to 

determine if the adoption is actually motivated by a desire to provide 

immigration benefits rather than to create a familial relationship, even when 

the adoption is finalized before the beneficiary is 16. In fact, it can be more 

difficult to detect fraud in an adoptive relationship than in a marital one. 

Thus, the age restriction provides an important deterrent to fraud and abuse

of the system. 

Under the rule we established in Cariaga and Drigo, retroactive and 

nunc pro tunc orders of adoption were always invalid for immigration 

purposes. The DHS urges us to reaffirm those decisions, arguing that the 

regulations require that a child must be under the age of 16 years when the 

adoption is approved in order to be eligible for immigration benefits. 

However, the regulations do not specifically address nunc pro tunc orders

and, in our view, do not prohibit a more measured approach. In interpreting 

section 101(b)(1)(E)(i) of the Act, it is appropriate for us to balance 

Congress’ interest in fostering family unification against its clear intent to 

prevent abuse in the immigration process. See Matter of Marquez, 20 I&N 

Dec. at 164 (stating that “adoptions must be evaluated in light of the 

congressional intent to recognize only bona fide adoptive relationships”). 

The beneficiary was granted a retroactive order of adoption in Hawaii. 

Under section 578-8(a) of the Hawaii Revised Statutes, a decree of 
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adoption “shall take effect upon such date as may be fixed therein by the 

court, such date to be not earlier than the date of the filing of the petition 

and not later than six months after the date of the entry of the decree.” 

Thus, Hawaii expressly permits a court to establish an effective date for an

adoption that is prior to the date the decree is entered, so long as it is not 

before the date the petition was filed. 

The statutory authority to enter an adoption order that is effective as 

early as the date the petition was filed is not an open-ended exercise of 

judicial authority based on general equitable principles. It is expressly 

authorized by the Hawaii statute and is objectively verifiable. Although the 

statute gives the State courts discretion to enter an effective date different 

from the date the decree is entered, the law prohibits the court from making 

the adoption effective before the date the petition was filed. This is 

significant because it helps to deter abuse of the immigration laws. See

Sook Young Hong v. Napolitano, 772 F. Supp. 2d 1270, 1280 (D. Haw. 

2011) (recognizing an adoption for immigration purposes under Hawaii law 

and noting that the statute would not allow a person older than 16 at the 

time of filing to obtain a retroactive adoption that would qualify under the 

Act). 

 Having considered the arguments of the parties and the limited nature of 

the Hawaii statute, we conclude that the blanket rule we have applied for 

many years is too limiting in that it does not allow us to adequately 

consider the interests of family unity. Thus, we will revisit the position we 

took in Cariaga and Drigo.

2

 Accordingly, we will no longer deny a visa 

petition 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. Therefore, we withdraw from our 

prior decisions to the extent that they prohibit recognition of such an 

adoption decree based solely on the rule that a petition must always be 

approved before the beneficiary turns 16. 

Nevertheless, contrary to the concurring opinion, we conclude that, at 

a minimum, the regulations and statutory context indicate that the adoption 

process must have been initiated before the child reaches the age of 16. An 

 

2

 The United States Court of Appeals for the Ninth Circuit, in whose jurisdiction this 

cases arises, rejected our interpretation of the age restriction in section 101(b)(1)(E)(i) of 

the Act as unreasonable. Amponsah v. Holder, 709 F.3d 1318 (9th Cir. 2013). The court

has withdrawn that opinion, stating that “the Board is considering whether to overrule or 

modify Matter of Cariaga.” Amponsah v. Holder, 736 F.3d 1172, 1172 (9th Cir. 2013). 

We are unaware of any other circuit court authority that has rejected our approach to the 

age restriction. See Mathews v. USCIS, 458 F. App’x 831, 833 (11th Cir. 2012) (finding 

our interpretation of the adoption age restriction to be reasonable). 
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adoption order is not merely a ministerial act that simply recognizes or 

formalizes a prior relationship. It is a judicial order that actually creates the 

adoptive relationship. See Black’s Law Dictionary 55 (9th ed. 2009) 

(stating that adoption “creates a parent-child relationship between the 

adopted child and the adoptive parents with all the rights, privileges, and 

responsibilities that attach to that relationship”). So while it may be 

reasonable to recognize an adoption decree that is retroactive to the date the 

process was initiated, it would not be appropriate to extend Congress’ 

mandated age limitations where the effective date of the decree predates the 

initiation of the legal process on which the adoption order is based. 

Allowing such adoptions would create clear opportunities to circumvent the 

statutory age restrictions and thus abuse the immigration process. 

Our new rule advances both of Congress’ policy interests in enacting the 

adoption statutes—family unity and the prevention of fraud and abuse in 

the immigration system. By recognizing retroactive adoptions as valid for 

immigration purposes but still requiring the petition to be filed before the 

child turns 16, we ensure that the recognition of adoptions remains tethered 

to the age limit Congress imposed. Without this restriction an adoption 

decree could be made retroactively effective to many years before the 

adoption took place, as was the case in Cariaga, where the adoption 

petition was filed after the beneficiary was 18 and the decree was made 

retroactive to a date 12 years before its entry. Although we now consider 

the holding in Cariaga to be too restrictive, the result in that case remains 

proper and would be the same under the rule we adopt here.3

 

B. Full Faith and Credit 

Although we have determined that our prior rule was too restrictive, we 

are not persuaded that we must recognize the beneficiary’s adoption based 

on the statutory principle of full faith and credit in 28 U.S.C. § 1738 (2012), 

which provides that the judicial proceedings of a State court must be 

recognized as effective by other jurisdictions. See Bustamante-Barrera 

v. Gonzales, 447 F.3d 388, 400 n.51 (5th Cir. 2006). That principle is not 

controlling in this context. 

 In Bustamante-Barrera, the United States Court of Appeals for the Fifth 

Circuit considered the effect of a nunc pro tunc custody decree granted in 

 

3 We note that Congress has not modified the statute in response to Matter of Cariaga

even though it amended the Act several times after our decision was issued. For 

example, in 1981 it raised the age limit for adoption from 14 to 16 years. See 

Immigration and Nationality Act of 1981, Pub. L. No. 97-116, § 2(b), 95 Stat. 1611, 

1611.
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California on the question of the legal custody of a child for purposes of 

naturalization. The court stated that its refusal to credit the decree “for 

purposes of federal immigration law [did] not even implicate the Full Faith 

and Credit Act” because, for purposes of the naturalization statute, the 

child’s custody status was determined only by Federal law. Id. Citing 

Fierro v. Reno, 217 F.3d 1 (1st Cir. 2000), the court agreed with the First 

Circuit’s refusal to give effect to a retroactively amended divorce decree, 

stating that relying on such a nunc pro tunc order would “create the 

potential for significant abuse and manipulation of federal immigration and 

naturalization law.” Id. at 401; cf. Minasyan v. Gonzales, 401 F.3d 1069, 

1080 n.20 (9th Cir. 2005) (distinguishing Fierro, where a nunc pro tunc 

divorce decree created a legal fiction by retroactively changing the 

relationship, from the petitioner’s decree, which recognized a separation 

that was actually in effect in practice and as a matter of State law). 

 Domestic relations is “an area that has long been regarded as a virtually 

exclusive province of the States.” United States v. Windsor, 133 S. Ct. 

2675, 2691 (2013). However, immigration and naturalization law “exists 

independent of state family law.” Bustamante-Barrera v. Gonzales, 

447 F.3d at 399−400 (noting the “overarching constitutional interest in 

uniformity of federal immigration and naturalization laws”). It is well 

established that a State court’s recognition of a marriage as valid under 

State law does not conclusively mean that immigration benefits will be 

conferred based on that marriage. See, e.g., Matter of Laureano, 19 I&N 

Dec. 1, 2 (BIA 1983); Matter of Brantigan, 11 I&N Dec. 493, 494 (BIA 

1966); see also Matter of Magana, 17 I&N Dec. 111, 114 n.1 (BIA 1979)

(declining to give full faith and credit to a retroactive State court decree 

declaring a marriage to be void ab initio). 

 An adoption is similar to a marriage in that the relationship must be

assessed on a case-by-case basis for immigration purposes, even if the State 

views the relationship as valid. See Matter of Marquez, 20 I&N Dec. at 

163; Matter of Y-K-W-, 9 I&N Dec. 176, 179 (A.G. 1961). A State court’s 

evaluation of an adoption petition does not include an investigation into 

whether the relationship was entered into “to facilitate entry of the adopted 

child into the United States.” Matter of Marquez, 20 I&N Dec. at 163. 

In regard to both adoption and marriage, Congress has expressed 

concern regarding the potential for abuse of the immigration process and 

has carefully drafted the Act in an effort to prevent fraud. See Kalal 

v. Gonzales, 402 F.3d 948, 952 (9th Cir. 2005) (noting the “carefully 

crafted scheme that Congress created for the purpose of avoiding marriage 

fraud”); Matter of Li, 20 I&N Dec. 700, 702 n.3 (BIA 1993); Matter of 

Marquez, 20 I&N Dec. at 163−64. As part of that scheme, Congress 

included a definitive age restriction as a means of limiting who could 
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qualify as an adopted child, separate from an evaluation of the bona fides of 

the relationship. Therefore, we cannot give full faith and credit to a State 

adoption decree without regard to whether the State law provides 

limitations like those in Hawaii that would preserve the integrity of the age 

restrictions that Congress considered to be essential to whether an adoption 

should be recognized for immigration purposes. 

 We are aware of district court decisions rejecting Matter of Cariaga and 

holding that a beneficiary who was adopted by an order that was issued 

after the child turned 16, but with an effective date prior to the child’s 16th 

birthday, qualifies as a “child” under section 101(b)(1)(E)(i) of the Act. 

See Cantwell v. Holder, 995 F. Supp. 2d 316 (S.D.N.Y. 2014);

Gonzalez-Martinez v. Dep’t of Homeland Sec., 677 F. Supp. 2d 1233 

(D. Utah 2009).4

 We are not bound to follow district court decisions. See 

Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). Nevertheless, we have 

reviewed the reasoning in these cases, which was based, in part, on 

principles of full faith and credit and which also viewed Cariaga as not 

having adequately considered congressional intent regarding family 

unification. While we disagree with the district courts’ reliance on full 

faith and credit, we do now place greater emphasis on family unity and 

agree that, in certain circumstances, retroactive adoptions should be 

recognized. 

C. Beneficiary’s Adoption Under Hawaii Law

Section 578-8(a) of the Hawaii Revised Statutes expressly permits a 

court to establish an effective date for an adoption that is prior to the date 

the decree is entered, so long as it is not before the date the petition was 

filed. Thus, pursuant to this statute and section 101(b)(1)(E)(i) of the Act, a 

person who is older than 16 at the time of filing the petition would not 

qualify as an adopted child under the immigration laws. See Sook Young 

Hong v. Napolitano, 772 F. Supp. 2d at 1280. 

In this case, the petition to adopt the beneficiary was filed 2 months 

prior to her 16th birthday, but the adoption decree was issued after her 

16th birthday. The judge made the effective date of the order of adoption 

retroactive to the day the petition was filed. Accordingly, we will sustain 

the petitioner’s appeal to the extent that the District Director’s decision 

rejecting the validity of the adoption decree based on its retroactive

effective date is contrary to our new rule. 

 

4 We note that in Khalil v. Napolitano, 983 F. Supp. 2d 484 (D.N.J. 2013), the court 

upheld the rejection of a nunc pro tunc adoption, finding that it followed our reasonable 

interpretation of the immigration laws in accordance with congressional intent. 
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 We nevertheless find it appropriate to remand the record for the District 

Director to further consider this case. On remand, the petitioner must 

establish that the adoption warrants recognition under our new rule. In 

addition to establishing that the adoption decree should be recognized as 

valid, the petitioner must meet all the requirements of section 

101(b)(1)(E)(i) of the Act and show that the adoption was not undertaken 

for the purpose of conferring immigration benefits on the beneficiary.5

 

See Matter of Marquez, 20 I&N Dec. at 164. In remanding this matter, we 

express no opinion as to the ultimate outcome. 

IV. CONCLUSION

In summary, we are convinced that Matter of Cariaga and Matter of 

Drigo established a rule that is too rigid in refusing to recognize any 

nunc pro tunc or retroactive adoption orders. Accordingly, we hold that the 

rule should be modified in part. We conclude that the phrase “adopted 

while under the age of sixteen years” is broad enough to encompass 

a retroactive or nunc pro tunc State court adoption order that was entered 

after the beneficiary was more than 16 years old, but with an effective date 

prior to his or her 16th birthday, so long as the adoption petition was filed 

before the beneficiary’s 16th birthday and the State expressly permits an 

adoption decree to be dated retroactively. 

ORDER: The appeal is sustained in part. 

FURTHER ORDER: The record is remanded to the District 

Director for further proceedings consistent with the foregoing opinion and 

for the entry of a new decision. 

CONCURRING OPINION: Michael J. Creppy, Board Member

I respectfully concur. 

I agree with the majority that our holdings in Matter of Cariaga, 

15 I&N Dec. 716 (BIA 1976), and Matter of Drigo, 18 I&N Dec. 

223 (BIA 1982), established a rule that is too rigid in holding that 

retroactive or nunc pro tunc adoption decrees are always invalid for 

immigration purposes. 

I write separately because nothing in either the statute or legislative 

history indicates a congressional intent to exclude a potential category of 

 

5 At the time of the beneficiary’s adoption her biological parents were both living in 

China. The record includes a letter from the petitioner stating that the beneficiary’s

“parents and I believe that growing up in Hawaii will benefit her most.” 
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bona fide adoptive relationships that were legally established prior to the 

child’s 16th birthday, as evidenced by a lawful adoption decree. 

I do not find support for the majority’s general conclusion that the 

timing of the filing of the adoption petition with the court or other 

government entity may be the determinative factor as to whether the 

retroactive or nunc pro tunc adoption decree should be recognized for 

immigration purposes. The failure to file a petition for adoption prior to the 

child’s 16th birthday does not nullify the existence of a valid adoptive 

relationship that was legally established prior to the beneficiary’s 16th 

birthday by a lawful adoption decree. 

Generally, the Act requires an alien seeking a family-based immigration 

benefit to establish the existence of a qualifying relationship. See sections 

201(a)(1), (b)(2)(A)(i), 203(a) of the Immigration and Nationality Act, 

8 U.S.C. §§ 1151(a)(1), (b)(2)(A)(i), 1153(a) (2012); see also 8 C.F.R. 

§ 204.2 (2015). A family-based immigration petition based on an adoption 

is no different, because a qualifying adoptive relationship must legally 

exist. The existence of a legal qualifying adoptive relationship is 

established by the issuance of a valid adoption decree by a court or other 

government entity. Therefore, where a lawful adoption decree establishes 

the existence of an adoptive family relationship that was created prior to 

child’s 16th birthday, it is a qualifying relationship for immigration 

purposes, regardless of whether the decree is retroactive or not. 

On this basis, I conclude that it is not the filing of the petition for 

adoption that is the determinative factor of this issue. Rather, it is the legal 

establishment of an adoptive relationship prior to the child’s 16th birthday, 

by a legally valid adoption decree, that is the determinative and controlling 

factor as to whether the retroactive or nunc pro tunc adoption decree should 

be recognized as establishing the existence of a qualifying relationship for 

immigration purposes. 

However, it is important to bear in mind that while a final adoption 

decree provides for the legal existence of an adoptive relationship under the 

laws of the jurisdiction where it took place, it does not establish that 

a bona fide adoptive relationship exists within the meaning of the Act. An 

adoption decree is not conclusive evidence that the adoptive relationship is 

bona fide for immigration purposes until the Department of Homeland 

Security (“DHS”), in evaluating the petitioner’s evidence, including the 

adoption decree, determines that a bona fide adoptive family relationship 

was established. The issuance of an adoption decree does not divest the 

DHS of its sole authority to determine if the adoptive family relationship is 

bona fide for immigration purposes.