Case Update (29 Aug 2023): Xia v. Jaddou; examination of the use of habitual residence in the context of international adoption vs. abduction cases

The child (now an adult), Tim, was born in China in July 1997 to married birthparents. Tim is a Chinese citizen, and lived in and attended school in China up to mid-2011. He took some trips to visit family in the United States, and, after one such trip in 2010, Tim returned to China expressing how much he liked the U.S. Tim’s biological aunt, and the Plaintiff herein, lived in the United States and became a U.S. citizen in August 2010. Shortly thereafter, Tim’s father (the brother of the new U.S. national aunt), met with an attorney in the U.S. to explore the process of immigrating to the U.S. with an EB-5 visa (foreign investor). In August 2011, Tim traveled with his aunt to the United States, and entered the country on a 6-month B1/B2 tourist visa. His father encouraged Tim to take this trip with his aunt to spend “time adjusting to the American life and working on English.” Once in the United States, he enrolled in public school in Dallas. His father, however, insisted that this trip was “temporary”, that Tim would return to China, and that any relocation to the U.S. would be done as a family. Tim, meanwhile, engaged in activities in the United States, like church, sports, and music lessons. In February 2012, Tim’s father filed an application to extend Tim’s 6-month visa to allow him to complete the school year. On April 20, 2012, Plaintiff and her husband adopted Tim’s cousin. Meanwhile, Tim’s father had applied for an EB-5 visa. This visa process was taking longer than anticipated, and, so, after learning of the delays, Tim’s father and mother signed affidavits relinquishing their parental rights to Tim with the intention that Tim could remain in the United States. On September 14, 2012, a Texas court issued an order granting Tim’s aunt’s request to adopt Tim. Six months later, Tim’s birthparents immigrated to the United States and moved to Tim’s neighborhood. Tim continued to reside with his aunt and uncle until February 28, 2014 (about a year after his birthparents moved to Texas). At that time, his aunt and uncle/adoptive parents had to move because his aunt lost her job. They left Tim behind to remain at the same school, so he moved in with his birthparents and stayed with them until he graduated highschool in 2016. Tim enrolled at Emory University in Fall 2016.

On January 5, 2018, Tim’s aunt submitted Form I-130, a Petition for Alien Relative, to seek Tim’s classification as an adopted child to get preferential immigration status for him. On January 22, 2019, USCIS issued a Request for Evidence, which stated that it appeared that Plaintiff was habitually resident in the U.S. and Tim was habitually resident in China. It further said that if Tim’s aunt could demonstrate that Tim was not habitually resident in China at the time of the adoption, she could still use I-130. Otherwise, this would fall under the Hague Adoption Convention procedures. To demonstrate Tim’s habitual residence, his aunt would be required to show that (1) Tim did not enter the U.S. for adoption purposes, and (2) he actually and physically resided in the U.S. for a substantial period of time, establishing compelling ties to the U.S. After submitting various affidavits in response to the RFE, on May 23, 2019, USCIS denied the I-130 petition stating that denial was due to “insufficient evidence that the adoption of Tim falls outside of the scope of the Hague Convention.”

The aunt made an argument that the BIA should apply the Monasky v. Taglieri habitual residence test, but the BIA found the habitual residence test in Hague Abduction Convention cases to be non-binding, and instead, the USCIS adoption case test was persuasive. The aunt appealed to the district court on the basis of the test used to determine “habitual residence.”

The district court refused to say that the Monasky v. Taglieri test should apply (or not) when determining habitual residence in the context of an adoption matter. Instead the court stated that, even if Monasky’s test applied, the result would be the same. Both Monasky and the USCIS apply fact-based, totality-of-the-evidence standards, and do not revisit those factual findings if they were done in substantial compliance with the test. Therefore, the district court concluded that Tim’s aunt did not prove any prejudice by application of the USCIS test (versus applying the substantially similar Monasky test). Petitioner has appealed to the Eighth Circuit.