Saturday, March 08, 2008

Kosak: Deferring To BIA View That Adoptees Cannot Petition For Biological Siblings

In Kosak v. Aguirre, No. 06-4055 (3d Cir. Mar. 6, 2008), the Third Circuit held that the BIA's view on a particular issue deserves deference and therefore must be followed so long as it is not completely incoherent, even if the court would take a different view if you asked it.

The issue is whether an adoptee can petition for a biological sibling (a sibling from before the adoption). Joseph Hohenstein of Orlow & Orlow in Philadelphia argued the case and his team is known for excellent legal work. Nevertheless, the Third Circuit rejected their arguments in this appeal from a district court decision.

In this case a woman was adopted by her aunt but still wanted to petition for her biological sibling. USCIS first said no, then said it would approve it, then changed its mind and said no it's not possible. They appealed it to the BIA, which said it's not possible.

The Third Circuit concluded that the issue was one that is not resolved through Congress's unambiguously expressed intent in the statute's language so the courts will defer to what the BIA says as long as it is a permissible interpretation. The ambiguity is that Congress clearly severed the relationship of an adoptee to her biological parents, but was silent about the relation of an adoptee to her biological siblings.

The immigrant made a solid argument that this issue is not within Congress or the BIA's immigration authority so it deserves no deference. The Third Circuit disagreed.

The immigrant also made a logical argument that the immigration agency's view has changed so often that it should not be given any deference. Not sure why, but the Third Circuit ignored how USCIS kept changing its view and only considered the BIA's single decision in the case. It's not clear whether this was the right decision -- even though only the BIA's decision is on appeal, it is unclear whether constant change in an agency's view would include USCIS shifts. In this case, the Third Circuit said without much explanation that it didn't care about repeated changes in USCIS's view.


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