The Volokh Conspiracy
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How Should American Immigration Law Treat Foreign Analogs of American Adoption?
An interesting case involving Iranian law, which, following Islamic law, appears to use the language of guardianship .
American law generally, and American immigration law in particular, generally treats adopted children the same as biological children. In the process, American law necessarily has to consider foreign adoption law in deciding how to treat children adopted in foreign countries.
But of course figuring out what exactly constitutes adoption under foreign law can sometimes be difficult, especially if the foreign country has a different sort of legal system from ours (see, e.g., Kaho v. Ilchert (9th Cir. 1985), involving Tongan customary law). Afianian v. Wolf, decided in September by Judge Fernando M. Olguin (C.D. Cal.), illustrates this.
Zahra Afianian, a lawful permanent resident of the U.S., filed an immigration petition on behalf of Yasaman Yaghoot, as Afianian's adopted daughter. "Yaghoot's biological parents died when she was three-years old, and plaintiff is her maternal grandmother. After Yaghoot's parents died, her maternal grandparents, including plaintiff, and her paternal grandparents fought over her custody [in Iran], and plaintiff was ultimately granted guardianship."
Afianian claimed that the guardianship is the Iranian equivalent of adoption, but the Board of Immigration Appeals and the U.S. Citizenship and Immigration Services took the view that Iranian law, which incorporates Sharia law, doesn't recognize adoption. Afianian sued, "alleg[ing] that the Defendants' blanket policy of deeming invalid Petitions for Alien Relative under the adoption category where the parent-child relationship was formed in a Sharia law-influenced country is contrary to law and arbitrary and capricious." And the court agreed:
[I]t appears that the Board of Immigration Appeals ("BIA") (and U.S. Citizenship and Immigration Services …) relied on factors which Congress did not intend for it to consider, namely whether Iran applies Islamic law … [in finding] "… that adoption does not exist in Iran because the country's legal system is based on Sharia law, which only allows for guardianship" and explaining that "according to the Foreign Affairs Manual, 'Legal adoption for the purpose of immigration does not exist in foreign states that apply Islamic law in matters involving family status.'"
Also, remand is warranted because it does not appear that the BIA considered an important aspect of the problem—the actual parent-child relationship between plaintiff and Yaghoot as established by the Iranian courts' award of custody and guardianship to plaintiff. In other words, the BIA failed to consider Iran's civil laws regarding adoptions (custody and guardianship), and plaintiff's submission of the relevant civil code provisions.
I'm not an immigration law expert (by any means), but this makes sense to me.
There's a basic reality of human social and emotional life, regardless of the particular terminology that a legal system may use. Children are sometimes left without parents who can raise them, whether because of abandonment or death. Other adults often step in, especially when they are relatives, but of course not only then. And adults who raise children often end up having much the same emotional bonds with them as they would with their biological children.
The American immigration law provisions that let lawful permanent result adults bring in close family members stem from those close emotional bonds. Whatever labels or even conceptual frameworks Iranian law uses, if Iranian custody-and-guardianship proceedings are the way the Iranian legal system recognizes these human conditions, American law should be interpreted to treat such proceedings as adoption proceedings for American law purposes.
