Revisiting Messina vs. USCIS
Also attached is Messina v USCIS 05-CV-73409-DT
OPINION AND ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT and DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Revisiting Messina vs. USCIS
by Yosef Yacob, JD, LLM, PHD
On cross Motions for Summary Judgment, Judge Bernard A. Friedman ruled the USCIS decision was unfair, lacking in common sense, arbitrary, capricious, and contrary to law and ordered the USCIS to approve the I-130 "Petition for Alien Relative."
If a district court issues a decision in an individual case, and the Government does not appeal the decision, USCIS must comply with the district court's judgment with respect to that specific case. Although the opinion is to be given due consideration, as a matter of law, the court's analysis need not be followed.
Indeed, the Board of Immigration Appeals (BIA) has held that district court judgments do not have binding effect for adjudication of immigration cases and accordingly, USCIS does not consider a district court judgment to be a binding precedent for any subsequent case. Hence, the USCIS is not bound to follow the published decision of a United States District Court, even in similar matters which arise in the same district.
None the less, MESSINA vs. U.S. CITIZENSHIP AND IMMIGRATION SERVICE underscores the basic administrative law tenet, which applies to every regulatory agency, that an adjudicator may not only look to evidence which supports the adverse decision but rather, must consider the entire record, make specific findings, and reach cogent conclusions concerning all relevant claims which have a bearing on the outcome of the decision.
The practical reasons for requiring administrative findings are so powerful that the requirement has been imposed with remarkable uniformity by virtually all federal and state court, irrespective of a statutory requirement. The Administrate Procedures Act (APA) does little more than codify what the courts already had worked out on the basis of constitutional due process.
The APA requires not only findings and conclusions of law but also reasoning and the courts apart from the APA have sometimes required agencies to state reasons. Reasons differ from findings in that reasons relate to law, policy, and discretion rather than to facts.
Perhaps the more crucial lesson from Messina is a reminder of another very basic principle that creation of law through statutory enactment or administrative rule making is more desirable than creation of new law though either judicial decision or administrative adjudication.
An appreciation of the Messina Court's reasoning requires a review of the decision in the context of some of the general principles underlying standard of review.
Standard of Review
Under the APA, a reviewing court may not set aside an agency's action unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law...."
Agency action may be reversed under the arbitrary and capricious standard only if the agency "has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise."
Moreover, an abuse of discretion may be found where the agency decision is based on an improper understanding of the law. Where, as here, the court must review an agency's construction of a statute which it administers, the court must consider first whether Congress has directly addressed the issue. "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress."
If the court determines that the statute is ambiguous, the court must then determine whether the agency's construction of the statute is reasonable. If the construction is a reasonable one, then the court should accord the agency deference unless it appears from the statute or its legislative history that the agency's construction is contrary to clear Congressional intent.
Most recently, in a case involving the USCIS, the 9th Circuit Court of Appeal re-iterated these long standing principles:
"However, the underlying agency action may be set aside only if 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Family Inc. v. U.S. Citizenship & Immigration Servs. 469 F.3d 1313, 1315 (9th Cir. 2006) (quoting 5 U.S.C. § 706(2)(A)). "We have held it an abuse of discretion for the Service to act if there is no evidence to support the decision or if the decision was based on an improper understanding of the law." TongatapuWoodcraft Hawaii Ltd. v. Feldman, 736 F.2d 1305, 1308 (9th Cir. 1984) (internal quotations omitted). [See Top International vs. US Citizenship and Immigration ,No. 07-56314 - D.C. No. CV-06-03401-ODW, December 9, 2008 (9th Cir, unpublished); Kazarian vs. US Citizenship and Immigration, No. 07-56774 D.C.; No. CV-07-03522-R-E, December 9, 2008 (9th Cir, unpublished)]
The Messina Case
Maria Messina (nee Maria Rosanna DiDia) was born in Italy on July 5, 1983.
Her mother was Laura DiDia. When Maria was born, Laura had been separated from her husband for ten months and Maria's father was someone other than Laura's husband.
On July 14, 1983, Laura petitioned a local Italian judge to issue a passport to Maria to enable her to migrate to the United States with Stefano and Caterina, who had traveled from the United States to Italy for this purpose. In this petition, Laura stated that she was giving "permanent custody" to Stefano and Caterina who "have accepted the custody."
On July 22, 1983, the judge issued the passport, finding "that the expatriation of the minor in the custody of Messrs. Messina is for her best interest".
On August 2, 1983, Stefano and Caterina brought Maria to the United States on a visitor's visa.
On June 26, 2002, the Family Division of Macomb Circuit Court issued an Order of Adoption indicating that Stefano and Caterina were the adoptive parents of Maria (19 years of age).
On November 10, 2004, that court issued an Amended Order of Adoption Nunc Pro Tunc ordering that "the Order of Adoption dated June 26, 2002 is amended to indicate that the adoption was entered nunc pro tunc, retroactive to the minor's date of birth July 5, 1983."
In September 2002, Stefano filed an I-130 "Petition for Alien Relative," requesting that the Immigration and Naturalization Service (INS) adjust Maria's status to allow her to remain in the country permanently. On this petition, Stefano indicated that Maria was his child by adoption.
In August 2004, the USCIS denied the petition on the grounds that Maria was not Stefano's "child" under the Immigration and Nationality Act because she was not adopted before her sixteenth birthday.
The decision cited 101(b)(1) of the act, which defines "child" as "an unmarried person under twenty-one years of age who is . . . (E) a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years."
The USCIS decision also cited 8 C.F.R. 204.2(d)(2)(vii)(C), which states that "the child must have been under 16 years of age when the adoption is finalized."
Petitioner, Stefano twice requested reconsideration, arguing that he adopted Maria in Italy shortly after her birth and that the nunc pro tunc order of adoption related back to her date of birth.
These motions were denied by the USCIS for the same reason stated initially, namely, that Maria was over the age of sixteen when she was adopted.
The USCIS contended that "retroactive or nunc pro tunc adoptions are not acceptable for immigration purposes".
The critical issue in this case is whether Maria was, or was not, adopted by petitioner, Stefano, and petitioner's wife, Caterina before her sixteenth birthday (… vs while under the age of sixteen years).
The Immigration and Nationality Act permits a United States citizen to file an immigrant petition on behalf of his/her child … and the statutory definition of "child" includes "… a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years.
Further, USCIS regulation requires that "the adoption took place before the beneficiary's sixteenth birthday" and that "[a] copy of the adoption decree, issued by the civil authorities, must accompany the petition."
First, the Court concluded that the USCIS decision failed to address petitioner's contention that he adopted Maria in Italy and USCIS entirely ignored the evidence supportive of this contention.
The initial decision by the USCIS failed to acknowledge petitioner's claim that Petitioner and his wife adopted Maria in Italy and to consider the fact that the petitioner believed the adoption of the beneficiary was finalized in Italy when the beneficiary was still a baby.
USCIS neither discussed the evidence supporting this claim nor made a finding as to whether an adoption occurred in Italy. Rather, the USCIS decision focused solely on the effect of the Michigan court's nunc pro tunc order. Therefore, the Court concluded that USCIS's failure to address plaintiffs' assertion on this important issue, by itself made the USCIS decision in this matter arbitrary and capricious.
To support its reasoning the court relied on several Circuit Court decisions. Namely,
Tourus Records, Inc. v. Drug Enforcement Admin., 259 F.3d 731, 736 (D.C. Cir. 2001), "[a]t a minimum, [the arbitrary, capricious, abuse of discretion] standard requires the agency to examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." (Citations omitted.)
Hooker Chems. & PlasticsCorp. v. Train, 537 F.2d 620, 636 (2nd Cir. 1976). The court reviews the agency decision, not "post hoc rationalization by counsel."
Consumers Union of United States, Inc. v. Consumer Prod. Safety Comm'n, 491 F.2d 810, 812 (2nd Cir. 1974). An administrative agency may not "ignore evidence placed before it by interested parties.".
In a footnote, the Court re-iterated the principle that the Court's review must focus on the USCIS decision as articulated in the record and not new arguments and analysis, presented by USCIS counsel, for the first time in litigation in an effort to prop up the agency's decision. Accordingly, the court rejected USCIS counsel's arguments which were not mentioned in the written decisions to explain why the evidence failed to establish that an adoption occurred in Italy.
The Court found the USCIS decision egregious because (in the opinion of the court) the record contained significant evidence showing that Petitioner and his wife in fact did adopt Maria in Italy in July 1983, days after Maria was born. Namely, an Italian court document dated July 22, 1983, the translation of which states:
Hon. Judge in the Pretura in Partinico The undersigned DiDia Laura . . . married to Mineo Leonardo . . . living apart from him about ten months, giving her own approval, as per affidavit given on the same date with signature authenticated by Notary . . . that her own natural daughter Di Dia Rosanna, born in Palermo on July 5, 1983, with a person other than her own husband, be given in permanent custody to Messina Stefano . . . and Bultaggio Caterina . . . (husband and wife), residing in the United States of America, which have accepted the custody of the fore mentioned girl, which will be migrating with them in the United States of America, and having also authorized the same to migrate to the U.S.A. of the fore mentioned girl, with the present ask your Honor to permit the issuance of the necessary permit so the aforementioned girl could be admitted in the United States of America together with her custodians Messina Stefano and Vultaggio Caterina so that the appropriate authority issue the passport. Best wishes. Partinico, July 14, 1983 Di Dia Laura The Pretor G.T. After reading the preceding petition and additional information, believe that the expatriation of the minor in the custody of Messrs. Messina is for her best interest, P.G.T. The issue of the passport is hereby authorized as requested on the above petition. Partinico 7-22-1983
The Court stated that although not titled an "adoption decree," as USCIS regulation requires, the document had the same effect as such a decree and that by signing the document Maria's natural mother intended not only to give "permanent custody" to petitioner and his wife, but to permit the child to "migrate" with them to the United States.
The Court also noted that the judge not only issued the requested passport but also specifically found that the child's "expatriation" to the United States was in her best interest. Hence the Court concluded that the document bears all the indicia of an adoption decree.
USCIS also overlooked another document in the record, a certificate of baptism stating that Maria was "born on 7-5-1983 to Stefano Messina [petitioner] and Vultaggio Caterina [petitioner's wife]" and baptized on July 30, 1983. The Court reasoned that the certificate of baptism was an indication that local church officials recognized Petitioner and his wife as Maria's parents.
Moreover, the Court found that evidence of the relationship between Petitioner, Petitioner's wife and Maria, contained in the transcript of the June 26, 2002, adoption confirmation hearing before the Macomb County Circuit Court, in which Petitioner and Petitioner's wife both testified that they had raised Maria since the day she was born was equally significant. According to the Court the testimonial evidence clearly establishes that Petitioner and Petitioner's wife adopted Maria in Italy. [Emphasis is added] The Court reasoned that since the word "adopt" is not defined in the Immigration and Nationality Act or in USCIS regulations, it is to be given its common and ordinary meaning and in so doing the Court referred to:
The American Heritage Dictionary which defines the term as meaning "[t]o take into one's family through legal means and raise as one's own child."
Webster's New World Dictionary which defines the term as meaning "to choose and bring into a certain relationship; specif., to take into one's own family by legal process and raise as one's own child."
The Oxford English Dictionary which defines the term as meaning "to take (any one) voluntarily into any relationship (as heir, son, father, friend, citizen, etc.) which he did not previously occupy."
Moreover, the Court found, the "legal means" or "legal process" stated in the USCIS regulation occurred when the Italian judge granted the passport petition and in so doing acknowledged that the natural mother was voluntarily giving "permanent custody" to petitioner and his wife thus permitting Maria to "migrate" with them to the United States and when he found that this arrangement was in Maria's best interest.
The Court underscored that the USCIS decision did not discuss the Italian adoption, or make any findings regarding that adoption, and for this reason alone was arbitrary and capricious under Tourus Records, Hooker Chemicals, and Consumers Union, supra.
Secondly, the Court found the USCIS decision that that the adoption took place after her sixteenth birthday and that the adoption would not be given "nunc pro tunc" effect, despite the clear wording of the amended order of adoption to be arbitrary, capricious and contrary to law, as well.
The Amended Order of Adoption Nunc Pro Tunc, dated November 10, 2004, states:
THE COURT being fully advised in the premises and upon a reading of Petitioners Ex-Parte Petition to Amend Order of Adoption Nunc Pro Tunc orders as follows: IT IS HEREBY ORDERED that the Order of Adoption dated June 26, 2002 is amended to indicate that the adoption was entered Nunc Pro Tunc, retroactive to the minor's date of birth July 5, 1983.
In its decision, USCIS stated that "retroactive or nunc pro tunc adoptions are not acceptable for immigration purposes". USCIS cited two decisions of the Board of Immigration Appeals for the propositions that "an adoption for immigration purposes occurs on the date the final adoption decree is issued" and that "retroactive adoptions are not recognized for immigration purposes despite any retroactive effect given the adoption by the issuing court".
At the outset, the Court expressed that the USCIS refusal to give effect to the state court order raises significant federalism and comity concerns since the USCIS does not claim that the order is invalid, but rather that the order is not "acceptable" or "recognized" because it makes the adoption retroactive.
The Court observed that USCIS did not cite any authority supporting the proposition that a federal agency may disregard a valid state court order - particularly where, as in the present case, the agency's decision is not supported by statutory authority.
The Court noted the statute defines "child" as including "a child adopted while under the age of sixteen years" 8 U.S.C. 1101(b)(1)(E)(I), and does not specifically rule out nunc pro tunc or retroactive adoptions. The Court further observed that the UCIS regulations, which requires that "the adoption took place before the beneficiary's sixteenth birthday" and that "[a] copy of the adoption decree, issued by the civil authorities, must accompany the petition," 8 C.F.R. 204.2(d)(2)(vii), are silent on the issue of nunc pro tunc or retroactive adoptions.
Therefore, the Court surmised that the USCIS decision that "retroactive or nunc pro tunc adoptions are not acceptable for immigration purposes" is not authorized either by the statute or USCIS regulation interpreting the statute.
The Court found that the only authority cited in defendant's decision, which speaks directly to the nunc pro tunc issue, is neither statute, nor regulation, nor court opinion, but rather a single decision of the BIA.
Citing 8 C.F.R. 1003.1(b), (g) the Court noted that while the decisions of the BIA are binding on officers and employees of the Department of Homeland Security, that body is nothing more than an administrative court created by the Department of Justice principally to review decisions of immigration judges.
In the Court's view, while the BIA may interpret the Immigration and Nationality Act and implementing regulations, it has no law- or rule-making authority. At most, according to the court, the BIA may comment on the meaning of immigration regulations, but it may not create or amend the regulations.
The Court deduced that the sole authority for the USCIS position that "retroactive or nunc pro tunc adoptions are not acceptable for immigration purposes" is the BIA decision in the Matter of Cariaga,
In Cariaga, the petitioner was an American citizen who had raised the beneficiary, a Mexican boy, since the boy's Mexican father brought him to the United States at the age of two. Shortly before the father died, when the boy was seven, he signed an affidavit consenting to the boy's adoption by the petitioner. When the boy was 19, petitioner obtained an order from an Iowa state court declaring the boy to be adopted by petitioner, retroactive to the date of the father's affidavit.
Under the circumstances, the BIA chose not to recognize the retroactive effect of the adoption and denied the petition, reasoning that "[t]hrough the imposition of an age restriction on the creation of the adoptive relationship, Congress has attempted to distinguish between bona fide adoptions, in which a child has been made a part of a family unit, and spurious adoptions, effected in order to circumvent statutory restrictions. . . . The act of adoption must occur before the child attains the age of fourteen."
Questioning whether Cariaga, as an interim decision, is entitled to any weight the Court none the less concluded that the BIA erred in Cariaga by impermissibly substituting its own definition of child ("the act of adoption must occur before the child attains the age of fourteen") for that passed by Congress (child must be "adopted while under the age of fourteen").
The Court asserted that even Cariaga did not explain the legal authority by which the BIA, a creation of the Department of Justice, may disregard a court order and remarked that the BIA mischaracterized the issue in Cariaga as "whether the retroactive effect which the Iowa Court has given the adoption should be considered by this Board" rather than to ask the more important question; namely, whether the BIA or any agency may disregard an order, issued by a court of competent jurisdiction, that is lawful on its face.
The Court emphasized the opinion that the USCIS decision offers no legal authority, other than Cariaga, for disregarding the "amended order of adoption nunc pro tunc" issued by the Macomb County Circuit Court and that if the USCIS doubted the validity or correctness of the "nunc pro tunc" designation, USCIS should have sought relief from the court that issued the order.
The Judge restated that Court orders are presumed valid, and it is beyond the province of an administrative agency to declare an order "unacceptable" and act as though the order did not exist. Thus, USCIS may challenge the validity of a court order in the proper forum, but it may not on its own motion declare the order invalid and like any government entity or individual, is duty bound to follow the orders of validly constituted courts and may not reserve the right to follow only those orders with which it agrees.
The Court stressed that USCIS disregard for the rule of law cannot be tolerated in a civilized society, which requires all citizens, including the government itself, to respect and abide by the law.
Lastly, the Court observed:
… another significant factor that the USCIS decision failed to mention, although it is apparent from the record, is that Stefano and Caterina could not obtain an order of adoption in Michigan until after Maria turned 18 because they were unable to locate Maria's natural parents, whose consent to the termination of their parental rights was required so long as Maria was under 18 by which time, under defendant's regulation as interpreted by Cariaga, she had missed the adoption deadline by two years.
The Court was therefore obliged to find that allowing the adoption order retroactive effect was the only means of correcting the Catch and concluded that it was arbitrary and capricious to require compliance with a regulation when compliance is impossible.
Clearly, the Messina Court was aware that, as in most countries, Italy has laws. The Italian law on adoption of minors is formally recognized in continental Europe as the basic model of adoption laws, is very easily accessible and is governed by Act No. 184 of May 4, 1983 which has been amended by several subsequent acts, the latest being Law No. 149 of March 28, 2001. This law was in effect at the time of the purported adoption of the beneficiary by the petitioners.
As most laws concerning adoptions, the Italian law contains explicit legal requirements concerning the adoption of minor children and the substantive and procedural requirements concerning eligibility, qualifications, pre-adoption placement, the engagement of civil authorities, the judicial process, decrees, etc.. As in most countries, the Italian law also explains the legal effect of the adoption. In Italy, with the adoption order, the adopted child assumes the status of a legitimate child of the adoptive parents and also takes on their surname and all ties to the biological parents are legally terminated.
Notwithstanding Italian law, the Messina Court's characterization of a document which by its very terms awarded "permanent custody" to the petitioners for the purpose of allowing the petitioner's to "migrate" the beneficiary to the United States and hence intended to protect the petitioners from potential claims of wrongful removal or breach of custodial rights, kidnapping, etc under international and domestic child protection laws as an adoption order is troubling.
The Messina Court could not have been unaware of the existence of adoption laws in Italy when presenting reasoning such as "… although not titled an 'adoption decree,' the document had the same effect as such a decree, … by signing the document Maria's natural mother intended not only to give 'permanent custody' to petitioner and his wife, but to permit the child to 'migrate' with them to the United States, … the [Italian] judge not only issued the requested passport but also specifically found that the child's 'expatriation' to the United States was in her best interest, … the document bears all the indicia of an adoption decree, … the certificate of baptism was an indication that local church officials recognized Petitioner and his wife as Maria's parents and, … petitioner's raised beneficiary since she was a child."
The courts inexplicable reliance on Petitioners' self serving testimony that Petitioner and Petitioner's wife adopted beneficiary in Italy without supporting corroborating evidence measured only against a dictionary definition as though Italian adoption law did not exist may be amusing. However, what may at first glance appear to be "troubling", unreasoned, legally unsound and / or amusing is clearly the Court's manner of expressing its frustration with the agency's failure to properly adjudicate the petition and make proper findings by illustrating the extreme consequences of such a failure.
The courts will not substitute the findings of fact by the USCIS, however, if the agency fails to consider the evidence and make the proper findings on all relevant issues, the court will oblige and make findings which may not be palatable to the agency. Equally, the Courts rejection of ad hoc rationalizations by USCIS counsel is to emphasize the notion that the rationalization should be in the agencies initial decision and presented to the petitioner for rebuttal and not presented as part of the agencies argument on appeal.
Just as the court underscored the failure to discuss the Italian adoption or make findings regarding the claimed adoption, the mocking summary that the USCIS "…disregard for the rule of law cannot be tolerated in a civilized society, …" is intended to underscore the improper delegation of rule making to the BIA and the failure to adopt rules properly vetted through the rule making process.
Hence, Messina identifies several areas for further deliberation by the USCIS. Rather than a rebuke, the decision should be viewed as a strong reminder that the USCIS, not unlike other federal regulatory agencies, in not immune from the due process requirements set forth in the Administrative Procedures Act.
1. Define "Adoption"
Petitions involving beneficiaries from Africa, the Middle East and Asia often involve formal and informal custodial, foster, guardianship, or supervision arrangements petitioner's construe as an adoption under domestic and customary laws, and religious and cultural norms which do not meet legal elements of Anglo-American or Western notions of adoptions and typical state statutory provisions , but meet the definition of an "adoption" if the term is given its common and ordinary meaning.
Adoptions are creatures of statute and a fairly novel concept to English law , usually governed by local law. Generally, an adoption in the United States involves a two-step judicial process in conformance to state statutory provisions in which the legal obligations and rights of a child toward the biological parents are terminated and new rights and obligations are created between the child and the adoptive parents.
In most states, adoption involves the creation of the parent-child relationship between individuals who are not naturally so related. The adopted child is given the rights, privileges, and duties of a child and heir by the adoptive family.
Once the adoption is completed, the adoptive child becomes entitled to all the privileges belonging to a natural child of the adoptive parents, and the adoptive parents acquire all the legal rights, duties, and obligations of the child's natural parents. Furthermore, all legal rights, duties, and obligations between the child and his or her natural parents (except, in some states, the obligation to pay delinquent child support payments) terminates upon the completion of the adoption.
However, unless Congress clearly intended a specific, technical meaning, a statute is to be interpreted according to the common, ordinary meaning of the words of the statute at the time of enactment. See BedRoc Ltd, LLC v. United States, 541 U.S. 176, 184 (2004); Perrin v. United States, 444 U.S. 37, 42 (1979); Burns v. Alcala, 420 U.S. 575, 580-81 (1975). The term "adoption" is not a hapax legomenon.
The BIA has rejected a strict statutory interpretation of section 101(b)(1)(E) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(E) (1982), thereby relying upon the legislative history of the statute which indicates that Congress did not intend to recognize ad hoc adoptions designed to circumvent the immigration laws; and that in certain cases, the bona fides of adoptions will be determined and evaluated in light of the congressional intent to recognize only bona fide adoptive relationships. [Matter of Marquez, 20 I. & N. Dec. 160 (BIA 1990); Matter of Repuyan , 19 I. & N. Dec. 119 (BIA 1984); Matter of Cuello, 20 I&N Dec. 3117 (BIA 1989)]
Yet, neither the INA nor the implementing regulations explicitly define adoptions, bona fide adoptions, ad hoc adoptions, customary adoptions, etc.; thus, compelling the Board to fill the regulatory void by improvising guidelines, in the form of "opinions" for the benefit of those entrusted the responsibility to adjudicate petitions. The Messina Court characterized the BIA's effort as equal to engaging in unauthorized and improper rule making.
In Messina, the court's condescending attitude and sanctioning of a very general dictionary definition of adoption including but not limited to the definition contained in The Oxford English Dictionary "to take (anyone) voluntarily into any relationship (as heir, son, father, friend, citizen, etc.) which he did not previously occupy", as the basis for finding a legal adoption is clearly intended to emphasize the absence of a technical definition in existing regulations and to draw the attention of the USCIS.
Otherwise, taking the court's arguments to their logical extreme, the USCIS would have to recognize all claimed adoptions meeting the age and legal custody requirements of the Act where the parties have shared a principal dwelling place for 2 years even if they concede that the sole purpose of the adoption was to facilitate entry of the adopted child into the United States.
The following selected sections from the opinion of the United States Court of Appeals for the Ninth Circuit Kaho v. INS, 765 F.2d 877 (9th Cir. 1986) epitomized the problem brought to light in the Messina decision and explained the need for the USCIS to adopt a definition of "adoption" more than a decade ago:
In Matter of Fakalata, 18 I. & N.Dec. 213 (BIA 1982), the BIA held that customary Tongan adoptions do not create a legal status or relationship under Tongan law and therefore are not legally valid. In so holding, the BIA reaffirmed its decision in Matter of Palelei, 16 I. & N.Dec. 716 (BIA 1979). In reaching this conclusion in Fakalata, the BIA relied heavily upon two letters of the Tongan Crown Solicitor, a section of the Tongan Constitution prohibiting the inheritance of land by customary adoptees, and an article entitled "Tongan Adoption" by Keith L. Morton, included in Transactions in Kinship--Adoption and Fosterage in Oceania (I. Brady ed. 1976). 18 I. & N.Dec. at 214-18.
In his first letter the Crown Solicitor of Tonga stated:
There is no provision in our law for the adoption of children born legitimately. Nevertheless it has been a common practice in Tonga for relatives to raise and maintain children, including legitimate children as part of the family and to treat them in all respects as if they were legally adopted. Such "adoption" does not give the child any legal right in the estate of the foster parent and is not recognized as legally valid under Tongan law. Matter of Palelei, 16 I. & N.Dec. at 718.6
The second letter of the Crown Solicitor, dated July 18, 1980, reads in its entirety:
On January 16, I wrote a letter to Mr. Kersi B. Shroff of the Library of Congress of the United States responding to a letter he wrote me requesting my opinion concerning the legal effect of Tongan customary adoptions. In that letter I stated: "Such 'adoption' does not give the child any legal rights in the estate of the foster parent and is not recognised (sic) as legally valid under Tongan law." In Tonga, there is no reported "law" concerning parental rights and duties and children's rights and duties when customarily adopted. Tongan customary adoptions are an important aspect of our traditional culture and continue to be practiced today very commonly. There is no need for anyone to go to the courts to enforce parental rights or duties or children's rights or duties because everyone understands that customarily adopted children are treated in all respects as if they were legally adopted except that they cannot inherit. Even illegitimate children adopted according to our statutory law cannot inherit, but they also are considered legally adopted. Customary adoptions used to (sic) prior to our Constitution allow the adopted children to succeed to estates and titles, but the Constitution forbade the inheritance or succession by adopted children. But the Constitution did not outlaw customary adoptions. They have continued until this day. Many families in Tonga have one or more members who are adopted. The adopted children cannot succeed to the estates of their parents, but in all other ways, they are considered the real children of their adopting parents. Such adoptions have the effect in Tonga of creating a parent and child relationship.
The section of the monograph primarily relied upon by the BIA in Fakalata reads:
The Tongan government sanctions only a few of these adoptions. Few applications for legal adoptions are made to the courts because the circumstances of Tongan adoption are often incongruent with the European model of adoption applied in the courts." Matter of Fakalata, 18 I. & N. Dec. at 215-16.
The BIA also emphasized the suggestion "that an adoption may be obtained through application to the courts which is recognized by Tongan law as according rights of succession to the adopted child." Id. at 217. The BIA stated, "if a means of acquiring legal sanction for an adoption is available, we believe that our immigration laws would require a person seeking immigration benefits on the basis of an adoption in Tonga to obtain endorsement of law in that matter." Id.
Based upon its interpretation of these sources, the BIA concluded that customary adoptions do not create a legal status or relationship under Tongan law and, therefore, it would not recognize such adoptions to be valid for immigration purposes. Id.
[On appeal to the federal district court], on the issue whether customary adoptions are legally recognized under the laws of Tonga, the district court considered the material which the BIA had before it in Fakalata and additional evidence such as an extensive affidavit of Dr. George Marcus [hereinafter Marcus affidavit], an anthropologist and Chairman of the Department of Anthropology at Rice University in Houston, Texas.
Based on its interpretation of the evidence before it and considering the Congressional purpose behind section 1101(b), the district court concluded that customary adoptions were legally recognized under the laws of Tonga. In rejecting the BIA's determination regarding the validity of customary adoptions, district court stated:
The ironic effect of the INS's approach to Tongan customary adoptions may be that only those customary adoptees whose adoptive status was disputed in Tonga may acquire preference visas, because they are the only customary adoptees who would have sought and obtained Tongan judicial sanction. Customary adoptees whose good faith adoptive status no one disputed would never have required recourse to courts; lacking a judicial decree recognizing their adoptive status, they would be per se precluded from obtaining preference visas. The effect is contrary to congressional (sic) intent.
Appellate Review On appeal, [USCIS] urges us to adopt the BIA's determination in Fakalata. Finding the BIA's decision in Fakalata flawed in several significant respects we decline to do so.
Our review of the Crown Solicitor's second letter convinces us that he has retracted his original conclusion that customary adoptions have no legal effect in Tongan law. In his second and most recent letter, the Crown Solicitor stated that customary adoptions have the effect of creating a parent/child relationship recognized under Tongan law. The Crown Solicitor explained that there was no need to resort to courts to enforce the rights and responsibilities of such a relationship "because everyone understands that customarily adopted children are treated in all respects as if they were legally adopted except that they cannot inherit." This statement by the Crown Solicitor demonstrates that the BIA misconstrued Morton's comment regarding judicial approval of adoptions in Tonga.
With respect to the prohibition on inheritance the Crown Solicitor added, "[e]ven illegitimate children adopted according to our statutory law cannot inherit, but they also are considered legally adopted." (Emphasis added). A logical reading of this statement, in context, makes clear that the Crown Solicitor was referring to customary adoptees as being considered "legally adopted" under Tongan law. We are also satisfied that the affidavit of Dr. Marcus reinforces the Crown Solicitor's statement that customary adoptions are legally recognized under Tongan law.
In light of the record before us, we cannot agree with the BIA's view that the lack of a statutory procedure for the adoption of legitimate children compels a determination that customary adoptions are not recognized under Tongan law. Dr. Marcus provides a reasonable explanation why there exists a statutory provision for the adoption of illegitimate children but no such provision for the adoption of legitimate children. Dr. Marcus explains that the statutory provision for adoption of illegitimate children was enacted in anticipation of challenges to the adoption by the parents of the illegitimate child. Adoption of illegitimate children under Tongan custom does not require the father's consent. The mother is frequently pressured into consenting to the adoption. Because such adoptions are "more a matter of expediency and necessity than a matter of consensual transaction as between two sets of parents as in the usual 'pusiaki' adoption,"8 the parents are likely to attempt to reclaim their child. The statutory provision thus affords the adopting parents some measure of security. Such a safeguard is not necessary for customary adoption of legitimate children because of their consensual nature.
Dr. Marcus adds that Tongan courts will enforce the rights and duties stemming from "pusiaki" adoptions. Specifically, Dr. Marcus explains: "Where relevant to the case, a magistrate will measure the strength and validity of adoption by attempting to determine the circumstances of the adoption transaction and the history of role-playing between parent and child. If the adopter and adoptee have conformed to the behavioral rights and duties of parent-child relationship, and moreover, if the adopted child has performed the duties of siblings in its adopted family, then the validity of the adopted tie is not only recognized but takes precedence over any competing claims or versions of the relationship, whatever the specific issue in dispute." Dr. Marcus further explains that pusiaki adoptions may be given effect by the Tongan Land Courts.
The BIA has expressly held that it is not necessary for an adoption to be recognized by a juridical act before it can be recognized as valid for immigration purposes. See Matter of Kwok, 14 I. & N. Dec. 127, 130 (BIA 1972). Thus, the BIA's suggestion in Fakalata that it would require judicial approval before it will recognize an adoption as valid for immigration purposes, 18 I. & N. Dec. at 217, conflicts with Kwok. We find the BIA's position in Kwok more consistent with the Act's purpose to reunite families.
In Fakalata, the BIA also found significant to its determination the Tongan constitutional prohibition against adopted children succeeding to the estates and titles of their adopted parents. 18 I. & N. Dec. at 217. Closer study of this constitutional prohibition reveals that it does not support the conclusion that customary adoptions are not legally recognized in Tonga.
The second letter of the Crown Solicitor states that the constitutional prohibition applies to judicially adopted children as well as to customarily adopted children. Dr. Marcus further explains that the constitutional provision concerns the law of succession to title and estates and is not a complete bar to inheritance by adopted children. Dr. Marcus adds that the prohibition refers only to adoption between strangers not to pusiaki adoptions.
If the BIA concludes that it cannot recognize customary adoption of children because of this inheritance prohibition, it would be forced to conclude that adoptions of illegitimate children, which are expressly provided for by statute under Tongan law, also cannot be recognized. A conclusion that the statutory adoption of illegitimate children is not valid under Tongan law would be contrary to the BIA's interpretation of section 1101(b)(1)(E).
In Fakalata, the BIA also refused to recognize customary adoptions as legally valid because the relationship between the adopted child is not "exclusive." 18 I. & N. Dec. at 216. In Tonga, an adopted child may maintain ties with his or her natural parents and may elect to emphasize those ties. In light of the "fluidity" of Tongan customary adoptions, the BIA concluded "a system which gives an adopted child the option to maintain a legal relationship with his natural parents is inconsistent with our concept of adoption and with section 1101(b)(1)(E)." Id. (emphasis added).
The flaw in the BIA's analysis is clear. For an adoption to be valid under section 1101(b)(1)(E), an adoption need not conform to the BIA's or Anglo-American notions of adoption; the adoption need only be recognized under the law of the country where the adoption occurred. See Matter of Kwok, 14 I. & N.Dec. 127. In addition, the BIA confuses the legal issue--whether Tongan customary adoptions are legally recognized--with the factual issue--whether a bona fide customary adoption ever took place in a given case.
[USCIS's] contention that the fluidity of Tongan customary adoptions would create an unacceptable potential for fraud and manipulation is unpersuasive. The INS is quite capable of ferreting out fraudulent claims. A petitioner seeking classification for a relative bears the burden of demonstrating that an adoption took place. The INS can ably scrutinize the evidence submitted in support of the petition and determine whether a bona fide customary adoption in fact occurred under the particular circumstances presented. Furthermore, the specific requirements of section 1101(b)(1)(E) minimize the possibility of fraud.
In summary, the BIA's analysis in Fakalata is unsound and we decline to follow it. The record before us demonstrates that customary adoptions are valid under Tongan law. The district court properly concluded that the INS abused its discretion in denying Kaho's visa petitions. A remand to the BIA for it to determine whether there existed a bona fide customary adoption of Valeti and Tupuo by Kaho was proper.
In order for an adoption to be recognized for immigration purposes, it first must be shown to conform with the statutory requirements under Section 101(b)(1)(E) and is recognized by the applicable law of the jurisdiction where it occurred.
Yet, Kwok advances the proposition that a juridical act is not required for an adoption to be valid and recognized for immigration purposes; whereas, Fakalata instructs that a person seeking immigration benefits on the basis of an adoption should obtain "endorsement of law in that matter" if a means of acquiring legal sanction for an adoption is available.
Therefore, the Messina court's liberal view in finding an application for issuance of a passport to "migrate" to America and the mother's consent to the award of permanent custody of the child to immigrate with her guardian's equivalent to a formal legal process of adoption should not be surprising.
At the very least, the variances reflected in the Board's opinions and magnified by the federal courts should pique the attention of the USCIS. Is there a need for further clarification of the relevant rule?
2. Define "Finality"
Generally, after an order of adoption by the court becomes final, no party to an adoption proceeding, nor anyone claiming under such party, may later question the validity or the adoption proceedings by reason of any defect or irregularity, jurisdiction or otherwise, for any reason, other than fraud on the part of the party adopting a child. An adoption may not be overturned by any court or collaterally attacked by any person or entity. In the United States, in approximately half of the jurisdictions, the effective date of the adoption is the date the petition for adoption is granted and in some jurisdictions, upon the expiration of the appeal period and in some other jurisdictions, on the effective date indicated in the decree. A judgment is granted or "rendered" when the trial court's decision is announced either orally in open court or by memorandum filed with the clerk. A subsequent entry or docketing of the judgment occurs when a court judgment is written into the official court records by the court clerk or when it is filed with the appropriate official (not necessarily when the order is signed).
In the remaining half, the court first enters an Interlocutory Decree followed by a Final Order after a period ranging from six (6), months to twelve (12) months. In these jurisdictions, the effective date of the decree is the date of the Final Order. Similarly, in many other countries, the effective date of the decree of adoption is provided for by statute and varies, as in the United States. Moreover, in some countries, the adoption process is purely administrative rather than juridical and is accomplished by registration of the act.
Under the present law and regulations which require that the "…adoption [take] place before the beneficiary's sixteenth birthday" or the "…child [be] adopted while under the age of sixteen" the provisions have been often interpreted by the USCIS Adjudicators to mean the date the final decree was signed by the judge (even though the date may not correspond with the effective date of adoption) or the date the Interlocutory Order was signed (despite the interim nature of the decree).
Messina has gone further and challenged, as being without a regulatory basis, the contention that, "an adoption for immigration purposes occurs on the date the final adoption [order] is granted. The requirement is not clearly articulated in any USCIS regulation.
As is and has often been the case, when a regulatory agency is put on notice of a "gap" in existing regulations, non-attention, inaction, or silence will predictably give rise to further litigation. In this instance, the failure to address the issues raised in the Messina case by the USCIS has already prompted a run to the courthouse for relief under state courts' inherent power to enter nunc pro tunc judgments.
Motions to re-issue the final judgments of adoption or motions to issue judgments nunc pro tunc on the basis of the Messina decision in order to qualify "aged out" children for immigration purposes is the means proposed by legal practitioners. Indeed a template for a Motion for an Order to Re-Issue the Final Judgment of Adoption is published and posted on the internet, compete with the legal authority and citations.
In a recent case granting nunc pro tunc relief for the specific purpose of qualifying the child under the immigration laws, the Family Court of New York, noted and re-iterated:
The court notes that the Supreme Court of the United States in McCarty V. McCarty, 453 U.S. 210, 220, 101 S. Ct 2728, 2735, 69 L. Ed 2d 589 (1981) stated: This Court repeatedly has recognized that the whole subject of the domestic relations of husband and wife … belongs to the laws of the States and not to the laws of the United States. [Citations omitted] Thus, state family and family-property law must do major damage to clear and substantial federal interest before the supremacy clause will demand that state law be overridden. [Citations omitted]
The court also, in its decision, noted "… the humane, common sense teaching of Messina v. U.S. Citizenship and Immigration Services, [citation omitted] recognizing the propriety of a nunc pro tunc state court order of adoption under circumstances where the adoption so recognized is bona fide, the child has been made part of a family unit and the adoption is not a spurious adoption affected in order to circumvent statutory restrictions. [Emphasis added]
In short, the court believed that unless the adoption is shown to be fraudulent intended for the sole purpose of circumventing immigration laws, a nunc pro tunc order can be entered if it is deemed to be in the best interest of the child and if a de facto relationship of parent and child (either through a de facto adoption or a guardianship/custody) was in place before the "cut off date." Hence, the order of adoption is mere legal recognition of an existing reality and is in essence an acknowledgment of the relationship.
Notwithstanding the persuasive reasoning and interpretation of the BIA's as expressed in Cariaga the USCIS's interpretation of U.S.C. 1101(b)(1)(E)(i), (wherein the interpretive regulation provides "… the adoption took place before the beneficiary's sixteenth birthday" [8 C.F.R. 204.2(d)(2)(vii))] the present language of the regulation does not by its terms directly or indirectly preclude nunc pro tunc judgments.
As the court noted, since the controlling law "…is silent on the issue of nunc pro tunc or retroactive adoptions…," an adverse decision, based upon the contention that retroactive or nunc pro tunc adoptions are not acceptable for immigration purposes is not supported either by statute or [USCIS] regulations interpreting the statute.
Secondly, though the BIA has no "rule making authority", its "authority" to interpret the immigration laws and regulations is not in dispute. The BIA acknowledges a distinction between a bona fide adoption, in which a child has been made a part of a family unit and a spurious adoption, effected in order to circumvent statutory restrictions. Hence, the nunc pro tunc order that is not calculated to thwart the law(s) is not in and of itself an automatic bar to eligibility.
Such distinctions, though significant, have been disregarded by the USCIS in adjudicative practice as illustrated by the decision in the Messina case. A summary disregard of a nunc pro tunc order by the USCIS without examining the underlying reasons constitutes an arbitrary decision indeed contrary to the view of the BIA.
Thirdly, as the court noted, the USCIS refusal to give effect to a valid state court order possibly raises federalism and comity issues. The United States Supreme Court "… has repeatedly recognized that (t)he whole subject of the domestic relations of husband and wife… belongs to the laws of the states and not to the laws of the United States. Thus (s)tate family and family-property law must do major damage to clear and substantial federal interest before the Supremacy Clause will demand that state law be overridden. [Citations omitted].
Moreover, a court has the inherent power to vacate, set aside, or modify its own order. This power is not dependent on any statutory provisions, but grows out of the control which the court has power the proceedings pending before it. Thus, a court has the power to enter a judgment nunc pro tunc, and such discretion appears to be a quasi-equitable power. "The power to enter judgments nunc pro tunc is inherent in the courts…. Such an order should be granted or refused as justice may require in view of the circumstances of a particular case. [Citation omitted]
Nunc pro tunc relief can be granted if the act to be given retroactive effect could have been done earlier than the actual date, inadvertence, or mistake, impossibility, beyond the control of the parties, or according to both Messina and the Cariaga (BIA) if the child has been made a part of the family unit and granting nunc pro tunc relief will not circumvent statutory restrictions, and the "act of adoption" occurs before the child attains the maximum age.
Contrary to initial impression, the Messina Court was by no means encouraging or condoning the usurpation by the State Courts of the authority of the USCIS to administer the federal immigration laws. Messina is simply urging the USCIS to adopt criteria which define or will preclude spurious adoptions affected in order to circumvent the statutory restrictions or define circumstances which will create the presumption of an attempt to thwart the immigration laws. The absence of rules vetted through the rule making process, rather than BIA decisions and the added failure to provide the supporting facts and findings in the agency decision was the reason for the court's rebuke.
Lastly, though one could interpret the reasoning in the Messina case exclusive to nunc pro tunc adoption judgments entered by US state courts (full faith and credit for state court judgments) and rules out nunc pro tunc orders issued by non US state courts where the standards for entry of nunc pro tunc orders may be indulgent. As the Messina case amply demonstrates, unless constrained by adopting appropriate regulations, a foreign decree including a nunc pro tunc court can easily be given effect by US state courts on the basis of comity.
One of the several lessons from the Messina decision is a strong cue to the USCIS to effectively convey to its adjudication officers, by way of training and through other means the requirement to review and consider the entire record and to enter findings of fact and conclusions of law in rendering decisions.
However, the more compelling summons is the need for the USCIS to adopt rules defining or clarifying "adoption" and additional language to effect the propositions that "an adoption for immigration purposes occurs on the date the final adoption decree is issued" and the vulnerable notion that "retroactive adoptions are not recognized for immigration purposes."
While the former is standard for a fast remedial solution, the latter regulatory issues which are the most frequent and significant concerns present in a sizeable number of adoption cases demand the attention of the "rule makers".
1Pursuant to 5 U.S.C. 706(1), which authorizes the court to "compel agency action unlawfully withheld"
2Matter of K- S-, 20 I&N Dec. 715 (BIA 1993)
3MESSINA vs. U.S. CITIZENSHIP AND IMMIGRATION SERVICE, Civil Action No. 05-CV-73409-DT, February 16, 2006, UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION 2006 U.S. Dist. Lexis 10292, 2006 W.L. 374564, not reported in F. Supp. 2d, (ED. Mich., 2006).
45 U.S.C. § 706(2)(A) (2001); Safari Aviation Inc. v. Garvey, 300 F.3d 1144, 1150 (9th Cir. 2002)
5Safari Aviation Inc., supra, note 4 at 1150.
6Occidental Engineering Co. v. INS, 753 F.2d 766, 768 (9th Cir. 1985).
7Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984).
8 INS v. Cardoza-Fonsenca, 480 U.S. 421, 447-48 (1987). Also see Grace Korean United Methodist Church v. Michael Chert. 437 F. Supp.2d 1174 (D. Ore. November 3, 2005)].
9See 8 U.S.C. 1154(a)(1)(A)(i).
10 8 U.S.C. 1101(b)(1)(E)(i).
118 C.F.R. 204.2(d)(2)(vii)
12The Court underlined that such post hoc rationalizations, arguments and analysis are not part of what the court reviews under the Administrative Procedure Act. See 5 U.S.C. § 706(2), authorizing review of "agency action, findings, and conclusions"
13 USCIS cited Matter of Mendoza, Interim Decision No. 2869, 18 I&N Dec. 66 (BIA, June 11, 1981), for the proposition that "an adoption for immigration purposes occurs on the date the final adoption decree is issued". However, the Court concluded that Mendoza did not involve a nunc pro tunc order of adoption and is therefore irrelevant.
14In a footnote, the Court observed that that "precedent decisions" of the BIA are intended to "provide clear and uniform guidance to the Service, the immigration judges, and the general public on the proper interpretation and administration of the Act and its implementing regulations." [Citing 8 C.F.R. § 1003.1(d). See also 8 C.F.R. § 1003.1(I) (regarding publication of precedent decisions)]. The Court also noted that since the BIA decisions cited by USCIS in the present case are so called "interim decisions," not precedent decisions, the amount of weight to which they are entitled, if any, was questionable
15Matter of Cariaga, Interim Decision No. 2507, 15 I&N Dec. 716 (BIA, July 22, 1976).
16At the time Cariaga was decided, the statutory definition of "child" included a child "adopted while under the age of fourteen."Supra at 717.
17 Law No. 149 of March 28, 2001 was published in the Gazetta Ufficiale, no 96 of April 26, 2001.
18 See for example "Overview of Italian Law"
19Art. 27(1) Law No. 184.
20Art. 27(1) Law No. 184; except for marriage prohibition.
21Since adoption was not recognized at Common Law, all adoption procedures in the United States are regulated by statute. Adoption statutes prescribe the conditions, manner, means, and consequences of adoption. In addition, they specify the rights and responsibilities of all parties involved.
22For example "to take into one's family through legal means and raise as one's own child", "to choose and bring into a certain relationship; to take into one's own family by legal process and raise as one's own child", etc.
23"In English law, the making of an adoption order effects the transfer of a child into a different family group and by that order extinguishes the parental responsibility previously held by the child's former parent or parents who are not members of the child's new family group."
24A customary adoption is an adoption created by operation of custom, i.e.--a common law adoption. See e.g. Matter of Nq, 14 I. & N.Dec. 135 (BIA 1972); Matter of Poon, 14 I. & N.Dec. 155 (BIA 1972).
25A "pusiaki" adoption is the adoption of a child between persons related by blood. The present case involves such an adoption.
26Matter of Mendoza, 18 I&N Dec. 66 (BIA 1981); Matter of Lee, 16 I&N Dec. 511 (BIA 1978); see also Mila v. INS, 678 F.2d 123 (10th Cir. 1982), cert. denied, 459 U.S. 1104 (1983); Matter of Fakalata, 18 I&N Dec. 213 (BIA 1982)(customary adoption). Matter of Khatoon, Interim Decision 2975.
27See Social Security Online chart
29However, if the "act of adoption" does not mean a formal legal adoption pursuant to a court judgment or civil authority empowered to create the legal relationship will de facto relationships, being a member of the family unit, equitable adoptions, and/or adoptions by estoppel qualify for later retroactive relief? De facto adoption is a voidable agreement to adopt a child, based on a statutory proceeding in a particular state, which becomes lawful when the petition to adopt is properly presented. Equitable adoption, sometimes referred to as virtual adoption, is treated by the law as final for certain purposes in spite of the fact that it has not been formally executed. When adoption appears to comply with standards of fairness and justice, some states will grant a child the rights of one who has been adopted even though the adoption procedure is incomplete. An equitable adoption might be enforced by the court for the benefit of a child in order to determine inheritance rights, for example. Similarly, adoption by Estoppel is the equitable adoption of a child by promises and acts that prevent the adoptive parents and their estates from denying the child adoptive status.
About The Author
Yosef Yacob has a BA in Economics (Honors) Linfield College, JD Northwestern School of Law of Lewis & Clark College, LLM (International Civil Litigation), University of San Diego, PhD in Law (International Law) Osgoode Hall School of Law, York University.
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