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Federal appeals court rules adopted children not ‘legitimated’ for immigration purposes

Federal appeals court rules adopted children not ‘legitimated’ for immigration purposes

26.11.2020 | Becca Salamacha | U. Pittsburgh School of Law, US NOVEMBER 25, 2020 01:55:15 PM | 102

The US Court of Appeals for the Tenth Circuit ruled Tuesday that an adoptive, nonbiological child is not a “legitimated” child under the Immigration and Nationality Act (INA).

Rejecting the plaintiff’s arguments, the court created a per se rule that nonbiological children cannot be “legitimated” under the INA and rejected the plaintiff’s claim of gender discrimination, which the plaintiff failed to raise with the Board of Immigration appeals:

Accordingly, we must now decide whether the Board of Immigration Appeals (“BIA”)—that is, the federal agency charged with ultimately interpreting the Act—erred in ruling that, because it is implicit in the concept of legitimation that a parent may legitimate only his biological children, the Act need not and does not look to state law to see whether parents may legitimate someone other than their biological children. Like the district court, we determine that the BIA correctly interpreted the Act’s plain meaning and, thus, did not err in ruling that a parent’s non-biological child may not be his “legitimated” child within the meaning of the Act. We also hold that the district court did not violate the Supreme Court’s rule in Darby v. Cisneros … when it declined to entertain the gender-discrimination challenge of plaintiff-appellant Lieutenant Colonel Patrick Schreiber … to the BIA’s interpretation of the Act because he failed to exhaust this argument in his purportedly optional appeal to the BIA.

The case concerned the plaintiff, Lieutenant Colonel Patrick Schreiber, who sought to obtain lawful residency for his 17-year-old adoptive daughter. The INA allows for an adoptive child to obtain lawful residency in the US if the child was adopted while under the age of 16. However, the INA allows residency for “legitimated” children under the age of 18. Because Schreiber’s daughter did not fit the adoptive child requirement, Schreiber sought instead to “legitimate” his adoptive daughter to allow her to obtain residency via the “legitimated” child exception.

Additionally, Schreiber claimed that the INA “legitimated” child exception discriminates against men, because the INA provides that “gestational mothers may legitimate their non-genetically-related children, to whom they gave birth after using assisted reproductive technology.” However, the court could not consider this argument, as Schreiber failed to raise the argument to the BIA.

Schreiber has yet to indicate whether he will appeal.

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