Case Update (27 Feb 2025): Xia v. Scott; BIA failed to make findings as to child’s connections to USA at time of adoption that go to his habitual residence under Adoption Convention
The U.S. Court of Appeals for the 8th Circuit addressed this case on appeal. More information on the case’s history can be found here. In summary, Petitioner Xia filed a Form I-130 petition for alien relative on behalf of her nephew, who she had adopted years earlier. Her nephew, Tim, had entered the United States in August 2011 from China on a temporary visitor visa to spend time with Petitioner Aunt, with his parents intending to immigrate later. When Tim’s six-month visa was about to expire, an application was filed to extend his stay until August 2012. When Tim’s parents learned that they would have to wait longer to reenter the USA as permanent residents, Petitioner Aunt adopted Tim in September 2012. Tim continued living with her until she lost her job and relocated from Texas in February 2014. By then, Tim’s birth parents were living in the same neighborhood as Petitioner Aunt, and so he moved in with them, continued at his same school, and, upon graduation in 2016, started college at Emory University. In January 2018, Petitioner filed the Form I-130. It was denied. The critical question is whether Tim was habitually resident in China (his country of citizenship) at the time of adoption or habitually resident in the USA at the time. Again, Tim was adopted in September 2012, just over one year after starting to reside in the USA with Petitioner Aunt. If Tim was still habitually resident in China, then the adoption fell under the Hague Adoption Convention, and the Form I-130 was not an available option for Tim. Petitioner Aunt could have made a showing that the Hague Adoption Convention did not apply by providing a written statement from China indicating Tim was no longer a Chinese habitual resident, OR, if she could not obtain such a statement, then evidence that she meets the criteria for Tim to be habitually resident in the USA (“intent, actual resident, and notice criteria”). Finding that Petitioner Aunt did not meet her burden, her application was denied, and she appealed to the 8th Circuit.
On Appeal, Petitioner argued that the immigration agency’s decision is “arbitrary and capricious” because there was sufficient evidence that, in Tim’s one year residence in the USA, he had resided with Petitioner, attended school, and participated in religious and extracurricular activities. Petitioner argued that despite these findings, the Board of Immigration Appeals (BIA) concluded that Tim’s ties were not compelling enough to demonstrate his habitual residence in the USA.
The 8th Circuit found that “[t]he BIA decision fails to explain which ‘specific facts and circumstances’ it considered and how those facts negated Tim’s documented connections to the United States.” It concluded that “[w]ithout these factual findings, we are unable to conduct a meaningful review of the BIA’s decision because we cannot discern the reasoning behind its conclusion or its application to the relevant factors to the legal standard.” The Government argued that any deficiency in the BIA’s explanation is harmless error. But, the 8th Circuit stated “[t]his is not such a case because determining Tim’s habitual residence requires an analysis of his connections to the United States as well as his circumstances in China. The BIA, not this Court, is tasked with making that determination in the first instance.”
