NUNC PRO TUNC Adoptions
NUNC PRO TUNC ADOPTIONS – Adoption is valid for immigration purposes even if the child has turned 16 at the time of the final order.
One of the requirements to petition an adopted child is that the adoption must take place before the child’s 16th birthday. The Board of immigration Appeals (BIA) has always interpreted this law to mean that there must be a final adoption decree before the child’s 16th birthday. Therefore, even if the adoptive parents started the adoption before the child’s 16th birthday, if the final decree was issued after the child’s 16th birthday, they were out of luck.
Some state courts were willing to make the “effective date” of the adoption to be before the child’s 16th birthday, even though the final decree occurred after the child’s 16th birthday. This is what is called a “nunc pro tunc” (or “legally backdated”) court order. However, the BIA had a “blanket” policy, where it refused to recognize such nunc pro tunc orders, and would not give retroactive effect to such state court decrees. ( in the Matter of Cariaga, 15 I &N Dec. 716 (BIA 1976), and Matter of Drigo, 18 I & N Dec.223 (BIA 1982)
The BIA in a recent case has decided to abandon its prior holdings on this issue and adopted a more expansive reading of the age requirement. The BIA has held that an adoption is valid for immigration purposes even if the child has turned 16 at the time of the final order if the state court has allowed the order to be backdated. Matter of R. Huang, 26 I&N Dec. 627 (BIA 2015). The BIA held that since the effective date of the adoption decree was made retroactive to the date the petition was filed, when the child was under 16, the adoption will be valid for immigration purposes.
However, the Board explained that it would be inappropriate to extend its limited holding in R. Huang to situations in which the effective date of adoption decree predates the initiation of adoption proceedings. Such an expansion would undermine the important policy considerations of fostering family unifications and preventing ad hoc or fraudulent adoptions.