Kosak v. Aguirre, (3d Cir. Mar. 6, 2008)

The district court did not err in according Chevron deference to the BIA's decision that adopted children may not petition for their biological siblings under INA §203(a)(4).

Appellant, a native of Taiwan , was adopted by her U.S. citizen aunt and uncle and entered the U.S. as a lawful permanent resident in 1981. After becoming a U.S. citizen, Appellant filed an I-130 petition on behalf of her biological sister under INA §203(a)(4). The Vermont Service Center approved the petition, but when a visa became available, the U.S. Consulate in Taiwan refused to issue the visa. The Consulate returned the petition back to the VSC and the VSC revoked the petition on June 24, 2005. The BIA dismissed Appellant's appeal, citing Matter of Li, 20 I&N Dec. 700, 703 (BIA 1993), where the BIA had previously held that the appellant's adoption severed his relationship with his natural sibling because they no longer shared a common parent. Appellant filed an appeal in the district court and moved for summary judgment, arguing that the BIA's decision was erroneous. The government also filed a motion for summary judgment which was granted by the district court. The court held that the BIA's interpretation of INA §203(a)(4) was entitled to Chevron deference. Kosak v. Devine, 439 F.Supp. 2d 410, 417-18 (E.D. Pa. 2006).

The court reviewed the BIA's interpretation of INA §203(a)(4) pursuant to Chevron USA, Inc. v. NRDC, 467 U.S. 837 (1984). Under Chevron, the court first examined the language of the statute to determine if Congress spoke directly to the issue of whether an adopted child may petition for her biological sibling. Appellant argued that under INA §203(a)(4), Congress intended the "normal and natural" definitions of "brothers" and "sisters" to control and that because she and her sister are both "children" of their biological "parents" as those terms are defined in INA §101(b)(1) and (2), they should therefore, be recognized as "sisters" for purposes of §203(a)(4). See Matter of Fujii, 12 I&N Dec. 495, 496 (DD 1967), (BIA District Director holding that the "relationship of brother and sister created by the legitimate birth of the petitioner and beneficiary to the same parents" is not destroyed "by the subsequent adoption of the latter"). To the contrary, the government argued that because adoption legally severs the relationship between biological parent and child for immigration purposes, INA §101(b)(1)(E)(i), it also severs the relationship between natural siblings. See Matter of Li, 20 I&N Dec. at 703; Matter of Xiu Hong Li, 21 I&N Dec. 13, 17-18 (BIA 1995); Young v. Reno, 114 F.3d 879, 888 (9th Cir. 1997). The court noted that both parties advanced plausible constructions of the statute and explained that because of the statutes ambiguity, it would defer to the BIA's conclusion as long as it is a reasonable interpretation.

Appellant first argued that the BIA's interpretation was impermissible because determining a person's status as a parent is not within Congress's or the BIA's immigration authority. The court rejected this argument, explaining that INA §203(a)(4) requires the BIA to define the relationship between siblings in order to determine eligibility for immigration status. While the BIA defines siblings as children with at least one common parent, Matter of Kong, 17 I&N Dec. 151, 153 (BIA 1979), adoption terminates the natural parent-child relationship under INA §101(b)(1)(E)(i). Therefore, the BIA concluded, adoption also terminates the sibling relationship for immigration purposes. The court found that such determinations were well within the BIA's authority regarding immigration matters. The court also rejected Appellant's argument that denying visa status to the natural sibling of an adopted child is unnecessary to enforce the "Congressional bar to natural parents receiving immigration status from a child they put up for adoption." While the "tracking system" proposed by Appellant to prevent adopted children from petitioning for their natural siblings who then petition for their natural parents may be feasible, the court found the BIA's construction equally permissible and representative of a "reasonable accommodation" of the "conflicting policies" of keeping families together and preventing natural parents from obtaining immigration benefits through children they put up for adoption. See Young, 114 F.3d at 886. The decision of the district court was affirmed.