PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-1138

ADEBOWALE OLOYEDE OJO,

Petitioner,

v.

LORETTA E. LYNCH,

Respondent.

On Petition for Review of an Order of the Board of Immigration 

Appeals.

Argued: December 8, 2015 Decided: February 16, 2016

Before MOTZ, KING, and KEENAN, Circuit Judges.

Petition for review granted; vacated and remanded by published 

opinion. Judge King wrote the opinion, in which Judge Motz and 

Judge Keenan joined.

ARGUED: Henry Caleb Griffin, GRIFFIN AND GRIFFIN, Annapolis, 

Maryland, for Petitioner. Stefanie A. Svoren-Jay, UNITED STATES 

DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON 

BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney 

General, Civil Division, John S. Hogan, Assistant Director, 

Office of Immigration Litigation, UNITED STATES DEPARTMENT OF 

JUSTICE, Washington, D.C., for Respondent.
2

KING, Circuit Judge:

Adebowale Oloyede Ojo, a native of Nigeria and the adopted 

son of a United States citizen, petitions for review of the 

decision of the Board of Immigration Appeals (the “BIA”) denying 

a motion to reopen his removal proceedings. In so ruling, the 

BIA relied on its administrative interpretation of a provision 

in the Immigration and Nationality Act (the “INA”) relating to 

adopted children, codified at 8 U.S.C. § 1101(b)(1)(E)(i). That 

provision is not ambiguous in the way asserted by the BIA,

however, and thus does not contain a gap that Congress has left

for the BIA to fill. Moreover, the BIA’s interpretation — which 

summarily disregards facially valid state court orders — is 

contrary to law. We therefore grant the petition for review, 

vacate the BIA’s decision, and remand for further proceedings.

I.

A.

Before addressing the particulars of Ojo’s case, we briefly

sketch the relevant statutory framework governing citizenship 

for foreign-born children. Section 1431(a) of Title 8 provides 

that “[a] child born outside of the United States automatically 

becomes a citizen of the United States when [three] conditions” 

are satisfied:
3

• First, “[a]t least one parent of the child is a 

citizen of the United States, whether by birth or 

naturalization”;

• Second, “[t]he child is under the age of eighteen 

years”; and

• Finally, “[t]he child is residing in the United 

States in the legal and physical custody of the 

citizen parent pursuant to a lawful admission for 

permanent residence.”

An adopted child qualifies as a “child” for purposes of 

§ 1431(a) if he was “adopted by a United States citizen parent” 

and satisfies the relevant requirements of 8 U.S.C. 

§ 1101(b)(1). See § 1431(b).

Section 1101(b)(1)(E)(i), in turn, defines a child as “an 

unmarried person under twenty-one years of age,” who was

“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.” The INA does not 

provide its own definition of the term “adopted,” specify any

requirements for a proper adoption, or contemplate the BIA’s 

involvement in any adoption proceedings.

A foreign-born child who fails to obtain citizenship 

remains an alien. See 8 U.S.C. § 1101(a)(3). The Department of 

Homeland Security (the “DHS”) — acting on behalf of the Attorney 

General — has the power to order certain aliens removed from the 

United States, including any alien who has committed an 

“aggravated felony.” See 8 U.S.C. § 1227(a)(2)(A)(iii). For 
4

purposes of § 1227(a)(2)(A)(iii), an “aggravated felony” is 

defined in § 1101(a)(43).

B.

1.

The pertinent facts of this case are not in dispute. Ojo 

was born in Nigeria on August 28, 1983, and he lawfully entered 

the United States in August 1989. Two weeks later, on September 

14, 1989, when Ojo was just six years old, his uncle — a United 

States citizen — became Ojo’s legal guardian. More than ten 

years later, on June 19, 2000, when Ojo was sixteen, Ojo’s uncle

and the uncle’s wife 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 judgment of adoption.

Between 2009 and 2012, Ojo was convicted of two drugrelated offenses, either of which qualifies 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. § 1431

and 8 U.S.C. § 1101(b)(1)(E), the DHS charged him with 

removability from the United States under 8 U.S.C.

§ 1227(a)(2)(A)(iii).

On May 15, 2014, an immigration judge (the “IJ”) determined 

that Ojo was removable from this country by clear and convincing 
5

evidence. The IJ explained that, because Ojo turned sixteen on 

August 28, 1999, and was not adopted by his citizen uncle until 

he was already seventeen years old, he did not qualify as an 

adopted child under § 1101(b)(1)(E). As a result, Ojo had not 

derived citizenship from his adoptive father (his biological 

uncle) pursuant to § 1431.

On June 25, 2014, the BIA received Ojo’s notice of appeal 

of the IJ’s decision. On September 10, 2014, in support of a

request for a remand to the IJ, Ojo advised the BIA that his 

adoptive father would seek a nunc pro tunc order from the 

Maryland state court specifying that Ojo’s adoption became 

effective before he turned sixteen.1 Ojo asserted that the court 

would likely grant such an order because — between the time Ojo

entered the United States at age six in 1989 and the approval of

his adoption in 2001 — he had lived continuously as the child of

his adoptive father.

On October 31, 2014, the BIA agreed with the IJ that Ojo 

was removable, recognizing that Ojo had the burden of proving 

his citizenship claim and showing that his adoption occurred 

before his sixteenth birthday. Relying on the judgment of 

 1 The Latin phrase “nunc pro tunc” translates literally as 

“now for then.” See John Gray, Lawyer’s Latin 100 (2002). An 

order entered nunc pro tunc has “retroactive legal effect 

through a court’s inherent power.” See Black’s Law Dictionary

1237 (10th ed. 2014).
6

adoption of January 24, 2001, the BIA ruled that Ojo was 

seventeen when adopted. Accordingly, the BIA decided that he 

did not qualify as an adopted child under § 1101(b)(1)(E) for 

purposes of derivative citizenship under § 1431. The BIA also 

concluded that Ojo’s representation that his adoptive father

would seek an order from the Maryland state court making Ojo’s 

adoption effective nunc pro tunc to a date before he turned 

sixteen did not warrant a remand to the IJ. Consequently, the 

BIA dismissed Ojo’s appeal.

On November 24, 2014, Ojo filed a timely motion to reopen

his removal proceedings, supported by a nunc pro tunc order

entered on October 29, 2014, by the Maryland state court. That

order made Ojo’s adoption effective on August 27, 1999, the day 

before he turned sixteen. By a decision of January 12, 2015, 

the BIA denied Ojo’s motion to reopen, observing that it “does 

not recognize nunc pro tunc adoption decrees after a child 

reaches the age limit for both the filing of the adoption 

petition and decree.” For that principle, the BIA relied on its 

prior decisions in Matter of Cariaga, 15 I. & N. Dec. 716 (BIA 

1976), and Matter of Drigo, 18 I. & N. Dec. 223 (BIA 1982).

2.

In its Matter of Cariaga decision, the BIA had established 

a blanket rule that “[t]he act of adoption must occur before the 

child attains the age [specified in the INA],” thereby 
7

precluding any consideration of a nunc pro tunc order entered 

after the relevant birthday but made effective before that date. 

See 15 I. & N. Dec. at 717. According to the BIA, “[t]hrough 

the imposition of an age restriction on the creation of the 

adoptive relationship, Congress has attempted 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. Thereafter, in 

Matter of Drigo, the BIA relied on its Cariaga decision and 

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 18 I. & N. Dec. 

at 224. The BIA’s Drigo decision emphasized that “[i]t was 

Congress’ intent that the age restriction in [8 U.S.C. 

§ 1101(b)(1)(E)(i)] be construed strictly.” Id.2

In other words, on the premise that its decisions in 

Cariaga and Drigo would deter fraudulent and spurious adoptions, 

the BIA embraced an interpretation of § 1101(b)(1)(E)(i) that 

flouted the effective dates of adoptions set forth in facially 

 2 The version of 8 U.S.C. § 1101(b)(1)(E)(i) applicable in 

Cariaga and Drigo required that the putative child be adopted 

before turning fourteen. In 1981, Congress amended that 

provision and changed age fourteen to age sixteen. See

Immigration and Nationality Act of 1981, Pub L. No. 97–116, 

§ 2(b), 95 Stat. 1611, 1611 (codified as amended at 8 U.S.C. 

§ 1101(b)(1)(E)(i)).
8

valid nunc pro tunc orders entered by the various state courts 

of this country. Multiple federal courts thereafter cast

substantial doubt on the BIA’s Cariaga/Drigo rule. See, e.g.,

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

Napolitano, 772 F. Supp. 2d 1270 (D. Haw. 2011); GonzalezMartinez v. DHS, 677 F. Supp. 2d 1233 (D. Utah 2009).

Only one of our sister courts of appeals has heretofore 

addressed the viability of the Cariaga/Drigo rule in a published 

opinion. In Amponsah v. Holder, the Ninth Circuit concluded

“that the BIA’s blanket rule against recognizing nunc pro tunc 

adoption decrees constitutes an impermissible construction of 

§ 1101(b)(1) and that case-by-case consideration of nunc pro 

tunc adoption decrees is required.” See 709 F.3d 1318, 1326 

(9th Cir. 2013). The Ninth Circuit withdrew its Amponsah

opinion a few months later, in September 2013, after the BIA 

advised the court that it was considering whether to overrule or 

modify the Cariaga/Drigo rule. See Amponsah v. Holder, 736 F.3d 

1172 (9th Cir. 2013).

3.

In support of his motion to reopen his removal proceedings, 

Ojo invoked several of the federal court decisions discrediting 

the Cariaga/Drigo rule. The BIA, however, rejected those 

decisions across-the-board as “not binding.” Specifically 

addressing the Ninth Circuit’s Amponsah opinion, the BIA 
9

observed that Ojo’s “reliance on [Amponsah] is misplaced as this 

decision was withdrawn.” The BIA did not acknowledge that the 

Ninth Circuit withdrew its Amponsah opinion because of the BIA’s 

assurance to that court in 2013 that it was revisiting the 

Cariaga/Drigo rule — the very rule on which the BIA then relied 

in January 2015 to refuse to reopen Ojo’s removal proceedings.

On February 10, 2015, Ojo filed a timely petition for 

review of the BIA’s decision denying his motion to reopen. We 

possess jurisdiction pursuant to 8 U.S.C. § 1252.

4.

On July 8, 2015, during the pendency of this proceeding, 

the BIA modified the Cariaga/Drigo rule in its precedential

decision in Matter of Huang, 26 I. & N. Dec. 627 (BIA 2015). 

The Huang decision related that Congress imposed an age 

restriction in 8 U.S.C. § 1101(b)(1)(E)(i) because it was 

concerned about “fraudulent adoptions that have no factual basis 

for the underlying relationship,” as well as adoptions that, 

“despite having the appearance of validity, are actually

motivated by a desire to circumvent the immigration laws.” See

id. at 629-30. Huang also explained, however, that “the blanket 

rule [from Cariaga and Drigo] we have applied for many years is 

too limiting in that it does not allow us to adequately consider 

the interests of family unity.” Id. at 631.
10

Pursuant to the new Huang rule, 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.” See 26 

I. & N. Dec. at 631. On July 22, 2015, pursuant to Rule 28(j) 

of the Federal Rules of Appellate Procedure, the Attorney 

General notified our Court of the Huang decision and asserted

that, “under the new framework set forth in [Huang], Petitioner 

[Ojo] still did not derive citizenship under 8 U.S.C. § 1431.”3

II.

We review the BIA’s denial of a motion to reopen removal 

proceedings for abuse of discretion. See Lin v. Holder, 771 

F.3d 177, 182 (4th Cir. 2014). For our Court to grant a 

petition for review, the BIA’s decision must be “arbitrary, 

 3 At oral argument, the Attorney General’s counsel

maintained that her client would be entitled to press an 

additional contention if this matter were remanded: that Ojo 

cannot qualify for citizenship under 8 U.S.C. § 1431(a) because 

he did not become a legal permanent resident (an “LPR”) prior to 

turning eighteen. The LPR issue was an alternative ground for 

the IJ’s ruling that Ojo is a non-citizen removable from this 

country. The BIA did not reach the LPR issue, so it is not ripe 

for our review in this proceeding. See Mulyani v. Holder, 771 

F.3d 190, 196 (4th Cir. 2014) (“[R]eview of an IJ decision is 

permissible only to the extent that the BIA adopted it.”).
11

capricious, or contrary to law.” See Nken v. Holder, 585 F.3d 

818, 821 (4th Cir. 2009).

III.

The dispute presented here between Ojo and the Attorney 

General centers on the statutory phrase, “adopted while under 

the age of sixteen years.” See 8 U.S.C. § 1101(b)(1)(E)(i). 

More specifically, we must determine whether the term “adopted” 

plainly denotes the effective date of an adoption, or whether 

that term is ambiguous and could instead signify the date that 

the act of adoption occurred. Only if the term “adopted” is 

ambiguous may we accord Chevron deference to the BIA’s policy of 

summarily disregarding nunc pro tunc orders relating to 

adoptions conducted in the various state courts of this country

— a policy engendered in the Cariaga/Drigo rule and recently 

modified in Huang. See Chevron, U.S.A., Inc. v. Nat. Res. Def.

Council, Inc., 467 U.S. 837 (1984).

A.

Congress has charged the Attorney General, and in turn the

BIA, with administering significant portions of the INA. See

Fernandez v. Keisler, 502 F.3d 337, 343-44 (4th Cir. 2007). 

Thus, we generally evaluate the BIA’s interpretations of the 

INA’s provisions by following the two-step approach announced by 

the Supreme Court in Chevron. See Barahona v. Holder, 691 F.3d 
12

349, 354 (4th Cir. 2012). At Chevron’s first step, we “examine 

the statute’s plain language; if Congress has spoken clearly on 

the precise question at issue, the statutory language controls.” 

Barahona, 691 F.3d at 354 (internal quotation marks omitted). 

If Congress has not so spoken, in that “the statute is silent or 

ambiguous, we defer to the agency’s interpretation if it is 

reasonable.” Id. (internal quotation marks omitted).

To resolve the initial inquiry under Chevron’s first step,

we focus “purely on statutory construction without according any 

weight to the agency’s position.” See Mylan Pharm., Inc. v. 

FDA, 454 F.3d 270, 274 (4th Cir. 2006). That is so “because 

‘[t]he traditional deference courts pay to agency interpretation 

is not to be applied to alter the clearly expressed intent of 

Congress.’” Id. at 274 (quoting Bd. of Governors, FRS v. 

Dimension Fin. Corp., 474 U.S. 361, 368 (1986)).

Preparing to handle the tools of statutory construction 

prompts us to emphasize, as we have frequently, that “the plain 

language of the statute is . . . the most reliable indicator of 

Congressional intent.” See, e.g., Soliman v. Gonzales, 419 F.3d 

276, 281–82 (4th Cir. 2005). If Congress’s intent is clear from 

the plain text, “then, this first canon is also the last: 

judicial inquiry is complete.” See Barnhart v. Sigmon Coal Co., 

534 U.S. 438, 462 (2002) (internal quotation marks omitted). As 

the Supreme Court has recently reiterated, however, “the meaning 
13

— or ambiguity — of certain words or phrases may only become 

evident when placed in context.” See King v. Burwell, 135 S. 

Ct. 2480, 2489 (2015) (internal quotation marks omitted). We 

therefore must “read the words in their context and with a view 

to their place in the overall statutory scheme.” Id. (internal 

quotation marks omitted).

B.

1.

We begin with the text of the relevant statute. To be 

considered a “child” for purposes of derivative citizenship 

under 8 U.S.C. § 1431, an adopted child must, in pertinent part, 

be “adopted while under the age of sixteen years.” See 8 U.S.C. 

§ 1101(b)(1)(E)(i). A child is “adopted,” of course, through an 

“adoption.”

An adoption is “[t]he creation by judicial order of a 

parent-child relationship between two parties.” See Black’s Law 

Dictionary 58 (10th ed. 2014); see also Black’s Law Dictionary

49 (6th ed. 1990) (defining “adoption” as the “[l]egal process 

pursuant to state statute in which a child’s legal rights and 

duties toward his natural parents are terminated and similar 

rights and duties toward his adoptive parents are substituted”);

Black’s Law Dictionary 63 (3d ed., rev. 1944) (similar). The 

formal legal act of adoption “creates a parent-child 

relationship between the adopted child and the adoptive parents 
14

with all the rights, privileges, and responsibilities that 

attach to that relationship.” See Black’s Law Dictionary 58

(10th ed. 2014).

In short, an “adoption,” as defined and commonly used, 

contemplates a formal judicial act. Furthermore, it is well 

understood that, in the United States, our various state courts 

exercise full authority over the judicial act of adoption. See

Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2565 (2013) 

(Thomas, J., concurring) (observing that “[a]doption proceedings 

are adjudicated in state family courts across the country every 

day, and domestic relations is an area that has long been 

regarded as a virtually exclusive province of the States” 

(internal quotation marks omitted)).

With those principles in mind, we discern no indication 

from the text of § 1101(b)(1)(E)(i) — or from any other aspect 

of the statutory scheme created in the INA — that Congress 

intended to alter or displace the plain meaning of “adopted.” 

The term “adopted” thus carries with it the understanding that 

adoption proceedings in this country are conducted by various

state courts pursuant to state law. Plainly, therefore, a child 

is “adopted” for purposes of § 1101(b)(1)(E)(i) on the date that 

a state court rules the adoption effective, without regard to 

the date on which the act of adoption occurred.
15

2.

Viewing 8 U.S.C. § 1101(b)(1)(E)(i) in the broader context 

within which Congress legislates confirms our plain reading of 

the statute. Although the Constitution commits to the federal 

legislature the power “[t]o establish an uniform Rule of 

Naturalization,” see Const. art. I, § 8, cl. 4; Johnson v. 

Whitehead, 647 F.3d 120, 130 (4th Cir. 2011), it has long been a 

hallmark of our federalism principles that full authority over 

domestic-relations matters resides not in the national 

government, but in the several States. See Ex parte Burrus, 136 

U.S. 586, 593-94 (1890) (“The whole subject of the domestic 

relations of husband and wife, parent and child, belongs to the 

laws of the States and not to the laws of the United States.”).

To that end, “the Federal Government, through our history, 

has deferred to state-law policy decisions with respect to 

domestic relations.” See United States v. Windsor, 133 S. Ct. 

2675, 2691 (2013) (relying on De Sylva v. Ballentine, 351 U.S. 

570, 580 (1956), wherein the Supreme Court itself observed that, 

“[t]o determine whether a child has been legally adopted, for 

example, requires a reference to state law”); see also Full 

Faith and Credit Act, 28 U.S.C. § 1738 (codifying federal policy 

of deference to state court orders). It is not surprising, 

then, that the federal courts might look suspiciously upon a 

federal agency that treads on a traditional judicial domain of 
16

the various States. See Solid Waste Agency of N. Cook Cty. v. 

U.S. Army Corps of Eng’rs, 531 U.S. 159, 172-73 (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”).

Here, if Congress had intended a modified definition of the 

term “adopted” for purposes of federal immigration law and

sought to place the interpretation thereof in the hands of an 

administrative agency, such as the BIA, Congress would have made 

that intention “unmistakably clear.” See Gregory v. Ashcroft, 

501 U.S. 452, 460 (1991) (internal quotation marks omitted)

(acknowledging that “the States retain substantial sovereign 

powers under our constitutional scheme, powers with which 

Congress does not readily interfere”). Congress did not, for 

example, specify requirements in the INA that, if met, would 

confer upon a child the status of “adopted” for purposes of 

federal immigration law. Nor did Congress explicitly 

circumscribe state authority over adoptions in the immigration 

context, as it has elsewhere. See Adoptive Couple, 133 S. Ct. 

at 2557 (majority opinion) (observing that the Indian Child 

Welfare Act of 1978 “establishes federal standards that govern 

state-court child custody proceedings involving Indian 

children”). Nor did Congress expressly confer on the Attorney 
17

General or the BIA any power to override the States’ traditional 

control over adoptions. See 8 U.S.C. § 1103(g) (outlining 

powers and duties of Attorney General under INA).

Instead, in 8 U.S.C. § 1101(b)(1)(E)(i), Congress chose the 

simple phrase, “adopted while under the age of sixteen years.” 

The inclusion of an age requirement in the statute — without 

more — cannot be read to create some power of federal agency 

review over state court adoption orders. Thus, when 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. Cf. Carachuri-Rosendo v. 

Holder, 560 U.S. 563, 576-78 (2010) (explaining that federal 

immigration court must look to state conviction itself to

determine whether state offense is “aggravated felony” under 

INA).

Put succinctly, the plain meaning of “adopted” in 

§ 1101(b)(1)(E)(i) forecloses the BIA’s summary disregard of 

facially valid nunc pro tunc orders relating to adoptions

conducted by the various state courts. Although the BIA — in

its recent Huang decision — has jettisoned the Cariaga/Drigo

rule’s absolute prohibition on giving any effect to such orders

in immigration matters, the BIA nonetheless has continued to 

automatically deny recognition to some. The term “adopted” is 

not ambiguous under Chevron’s first step, and the BIA’s 
18

interpretations that circumscribe reliance on nunc pro tunc 

orders are not entitled to deference.

In these circumstances, it was contrary to law for the BIA 

not to recognize the nunc pro tunc order in Ojo’s case. As a 

result, the BIA abused its discretion in denying Ojo’s motion to 

reopen his removal proceedings.4

IV.

Pursuant to the foregoing, we grant Ojo’s petition for 

review and vacate the BIA’s decision denying Ojo’s motion to 

reopen his removal proceedings. We remand to the BIA for such 

other and further proceedings as may be appropriate.

PETITION FOR REVIEW GRANTED;

VACATED AND REMANDED

 4 We need not reach any issue of whether the Attorney 

General or the DHS is entitled to demonstrate that a particular 

state court nunc pro tunc order evinces a fraudulent or spurious 

adoption. Importantly, the Attorney General conceded at oral 

argument that there are no indications of fraud with respect to 

the 2014 nunc pro tunc order relating to Ojo’s adoption in the 

Maryland state court.