Opinion
1:23-CV-322-HAB
05-10-2024
LAURA BLANFORD, Plaintiff, v. UNITED STATES CITIZENSHIP AND IMMIGRANTION SERVICES, sued as Ur M. Jaddou, in her official capacity as Director, Defendant.
OPINION AND ORDER
HOLLY A. BRADY CHIEF JUDGE
Because of a consular officer's suspicions over a $900 payment, two children have spent the last seven years in a Liberian orphanage instead of with their adoptive parents in the United States. That's a tragedy, one that will end today.
Now before the Court are cross-motions for summary judgment. (ECF Nos. 22, 25). Those motions task the Court with determining whether the United States Citizenship and Immigration Services' (“USCIS”) decision to deny two Petitions to Classify Orphan as Immediate Relative (“I-600 Petitions”) can survive judicial review under the Administrative Procedure Act (“APA”). Those motions are now fully briefed (ECF Nos. 23-24, 26-32, 35-37) and ready for ruling.
I. Factual Background
This case challenges USCIS' denial of two I-600 Petitions filed by Plaintiff on behalf of Anointed Siah (“Anointed”) and Cyrus Riches Smith (“Cyrus”). Anointed and Cyrus are the biological children of Leona Johnson (“Leona”). Displaced by the Second Liberian Civil War, Leona and her twins, Andy and Anna (“Twins”), fled to Ghana in the 2000s where they stayed for a period of time as refugees.
A. Leona Gives Her Children Up for Adoption
In 2013, Leona decided to allow her mother, Jamesetta Johnson (“Jamesetta”), a naturalized United States citizen, to adopt the Twins. As part of the adoption process, Jamesetta filed a Form I-130, Petition for Alien Relative (“I-130 Petition”). The I-130 Petition listed Leona's children with their dates and places of birth. That list included a female child, “Siah, Anointed S.M.,” born March 30, 2012, in Ghana, and a male child, “Smith, Cyrus A.R.,” born May 26, 2009, in Ghana. These stray references, in a petition unrelated to Anointed or Cyrus, would set in motion the series of events that leads us to today.
The Twins international adoption was facilitated by two organizations: Americans for African Adoption (“AFAA”) and Joyful World Ministries (“JWM”). During that process, Leona spoke to the Director of AFAA, Cheryl Carter-Shotts (“Cheryl”), about also offering Anointed and Cyrus for adoption. Unfortunately, Jamesetta could not afford the costs related to the adoption and care of Anointed and Cyrus, so that process stalled.
In February 2017, admission forms were created for Cyrus and Anointed at AFAA. Those forms listed Anointed as born on May 30, 2013, in Liberia, and Cyrus as born on March 24, 2010, also in Liberia. Cyrus was in Ghana at the time, so Leona emailed AFAA to get money to transport Cyrus back to Liberia, with the email detailing the cost of airline tickets. AFAA agreed to pay Leona and Cyrus' travel expenses. The agency wired $660 to Oretha James (“Oretha”), who was to hold the money to make sure Leona used it for travel expenses.In early April 2017, Oretha provided Leona with the $660, plus an additional $300 that Leona claimed she needed for transportation and expenses to and from Ghana. It is not clear what Leona did with the money, but she did not spend it on airfare. Leona's passport stamps and her later statements show that she traveled by land, purportedly because airfare was too expensive.
USCIS' response to this fact in its L.R. 56-1(b)(2) Response to Statement of Material Facts (ECF No. 31) is one of many instances where it denies knowledge “sufficient to dispute or not dispute these allegations,” states that the fact is undisputed with the clarification that it does not dispute that the fact appears in a document, or both. These responses are inappropriate and unhelpful. The intent of the L.R. 56-1(b)(2) filing is to assist the Court in determining whether genuine issues of material fact exist. They are vehicles for the opposing party to identify, with citation to evidence, facts that are in dispute. Rather than include asides and caveats throughout its filing, USCIS should have just admitted facts where it lacked contradictory evidence. USCIS would do well to review Plaintiff's similar filing (ECF No. 30) to see what an appropriate response looks like.
On April 14, 2017, Leona signed an Affidavit of Relinquishment with the Justice of the Peace in Liberia transferring her parental rights in Anointed and Cyrus to AFAA. In that Affidavit, Leona stated that Cyrus and Anointed were born in Liberia on March 24, 2010, and May 30, 2013, respectively. She stated that the children were born out of wedlock, that she was the sole parent, and that the whereabouts of the biological fathers were unknown. “Due to her destitution coupled with mental anguish,” Leona stated that she “was no longer in the position to provide life necessities for the support and care of her children.” Leona understood that “upon relinquishment . . . she voluntarily and unconditionally consents, and irrevocably relinquishes, grants all and singular the rights, privileges over” Cyrus and Anointed to AFAA and JWM. (ECF No. 15-1 at 301). On May 15, 2017, Leona returned from Ghana to Liberia with Cyrus, and both children were surrendered to AFAA on June 6.
B. Plaintiff seeks to Adopt Cyrus and Anointed
On April 6, 2017, Plaintiff contacted JWM and expressed interest in adopting a male child one to two years younger than their then-five-year-old daughter. JWM responded the same day, copying Cheryl, and providing Plaintiff with a program description and adoption application.
Two weeks later, Cheryl emailed Plaintiff to inform her that AFAA would soon be getting two siblings, ages three and five, that would be available for adoption. Approximately one week later, Cheryl and Plaintiff communicated over email and phone calls about a set of siblings, ages four and seven, that would be available for adoption. On April 25, 2017, Plaintiff expressed her willingness to adopt the four- and seven-year-old siblings.
The record is unclear whether these emails are about the same set of siblings or two different sets.
On October 2017, Plaintiff signed a Service and Policy Agreement Contract with JWM and AFAA. Plaintiff and her husband received the first pictures of Anointed and Cyrus in January 2018.
In July and August 2018, social workers from the Liberian Ministry of Gender, Children, and Social Protection (“Ministry”) interviewed Leona about the adoption of Anointed and Cyrus. Ministry reports of that interview show that Anointed was born on March 30, 2013, and Cyrus on May 24, 2010. The reports also show that Leona was “willingly” giving her children to be adopted by Plaintiff and her husband. The Ministry found the information provided by Leona to be “factual and credible.”
Shortly after the August 2018 interview, Plaintiff and her husband signed an Agreement to Accept Placement of Cyrus and Anointed. In January 2019, the couple filed a petition for adoption in a Liberian probate court. They also submitted an Adopter's Oath to the same court. On January 22, 2019, the Liberian court issued a decree of adoption declaring Plaintiff and her husband the adopted parents of Cyrus and Anointed.
C. Plaintiff's First I-600 Petitions are Denied
One week later, Plaintiff filed two I-600 Petitions directly at the U.S. Embassy in Monrovia, Liberia. The filing of these Petitions caused a consular officer to interview Leona about the adoptions. She signed a statement prepared from that interview which, with respect to Cyrus and Anointed, stated:
During that adoption process I came to know Oretha James, who works with the adoption agency Americans for African Adoption (AFAA) in Liberia. I began to volunteer at the agency two or three times weekly, and sometimes received food or money for transportation. In or around April 2017 Oretha and the U.S. director Cheryl agreed to give me $900 USD to bring my son Cyrus to live with me in Liberia (he had been living with a friend of mine in Ghana). This $900 USD was used for plane tickets for me and my son, as well as a small gift to say thank you to my friend in Ghana who had been caring for Cyrus.
I don't remember the exact date we came to Liberia, but a stamp in my passport shows that I entered Ghana on April 20, 2017. Some time after that, maybe two months later, I asked Oretha to let my children live at the AFAA House so they could go to school. Some time after that, I began thinking about adoption and asked Oretha to look for an adoptive family who could care for my younger children, Anointed and Cyrus.(ECF No. 15-1 at 472). Leona affirmed, however, that the payment had nothing to do with her decision to put her children up for adoption, that she would have done so without the payment, that the release of her children was not conditioned on the payment, and that she did not consider the payment to be the sale of her children.
The consular officer was not buying what Leona was selling. The consular officer concluded that the I-600 Petitions were not “clearly approvable” under 8 C.F.R. § 204.3(i) because “[t]here are indications that the adoption services provider gave money to the children's mother as payment and/or to influence the relinquishment of parental rights or the giving of parental consent relating to the adoption of a child.” (Id. at 680). This decision appears to be primarily driven by the timing of the payments. (Id. at 680-84).
USCIS' office in Accra, Ghana, concurred with the findings of the consular officer and issued a Notice of Intent to Deny two I-600 Petitions in January 2020. (Id. at 650-58). USCIS repeated the baby-selling allegations and added its concerns over conflicting information regarding the children's date of birth, country of birth, and date of abandonment.
Plaintiff responded to the notices of intent to deny, providing additional evidence to USCIS. (Id. at 539-647). This evidence included: a statement by Leona showing that her income was well-below the poverty line, evidence establishing Cyrus' March 24, 2010, birth in Liberia (including his Liberian passport and birth certificate, immunization records, and statements of two individuals present at his birth), evidence establishing Anointed's May 30, 2013, birth in Liberia (including her Liberian passport and birth certificate, immunization records, and statements of two individuals present at her birth), a statement from Jamesetta explaining the errors in her I-130 Petitions, a statement from Leona explaining that the Anointed referenced in Jamesetta's I-130 Petition was a previous child that died at the age of one, and a statement from Oretha explaining the financial assistance provided to Leona.
USCIS formally denied the I-600 Petitions in May 2020. (Id. at 534-38). USCIS found that the evidence provided in the response did not resolve the inconsistencies regarding the origin or the children or their relinquishment. It additionally found that Plaintiff had failed to provide an explanation for the money paid to Leona.
D. Plaintiff's Second I-600 Petitions are Denied
Plaintiff filed new I-600 Petitions in February 2022. In addition to the evidence provided in support of the prior petitions, Plaintiff submitted:
- a death certificate for the original Anointed;
- DNA tests establishing that Anointed and Cyrus were Leona's children;
- a statement from Leona explaining that she and her children were refugees in Ghana in 2012, that the Ghanaian authorities issued documents with incorrect information for the children, and that Leona had unsuccessfully tried to correct the information on those documents; and
- a statement from Leona identifying the children's fathers and stating that she had not seen either man for years, nor did she know where to find them.
USCIS issued notices of intent to deny the new I-600 Petitions in August 2022. (Id. at 197206). It cited the same reasons used in denying the first petitions, and additionally raised the issue of whether the children were relinquished directly to Plaintiff.
Plaintiff again submitted a response to the notices of intent. (Id. at 27-195). The response included: academic and journalistic reports on documents issues in Liberia and Ghana, birth certificates and visas for the children, a letter stating that Leona did not learn the identity of Plaintiff until July 2018, and additional evidence related to the payments to Leona.
USCIS formally denied the second I-600 Petitions in April 2023. (Id. at 3-14). It relied on the same grounds set out in the notices of intent to deny. This case was filed the same month.
II. Legal Analysis
A. Summary Judgment Standard
Summary judgment is warranted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The non-moving party must marshal and present the Court with evidence on which a reasonable jury could rely to find in their favor. Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). A court must deny a motion for summary judgment when the nonmoving party presents admissible evidence that creates a genuine issue of material fact. Luster v. Ill. Dep't of Corrs., 652 F.3d 726, 731 (7th Cir. 2011) (citations omitted). A court's role in deciding a motion for summary judgment “is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe. The court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.” Waldridge v. Am. Heochst Corp., 24 F.3d 918, 920 (7th Cir. 1994).
Facts that are outcome determinative under the applicable law are material for summary judgment purposes. Smith ex rel. Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997). Although a bare contention that an issue of material fact exists cannot create a factual dispute, a court must construe all facts in a light most favorable to the nonmoving party, view all reasonable inferences in that party's favor, Bellaver v. Quanex Corp., 200 F.3d 485, 491-92 (7th Cir. 2000), and avoid “the temptation to decide which party's version of the facts is more likely true,” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). A court is not “obliged to research and construct legal arguments for parties.” Nelson v. Napolitano, 657 F.3d 586, 590 (7th Cir. 2011).
Cases arising under the APA are typically resolved by summary judgment based on the administrative record compiled by the agency. See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744-745 (1985). “The factfinding capacity of the district court is thus typically unnecessary to judicial review of agency factfinding .... [C]ourts are to decide, on the basis of the record the agency provides, whether the action passes muster under the appropriate APA standard of review.” Id. at 744. Here, faced with cross motions for summary judgment, we therefore resolve all the claims raised by Plaintiff without an evidentiary hearing or trial on the merits. See Cronin v. USDA, 919 F.2d 439, 445 (7th Cir. 1990)
B. Statutory and Regulatory Framework
The Immigration and Naturalization Act (“INA”) provides that a citizen of the United States may file an application on behalf of an orphaned child adopted abroad. 8 U.S.C. §§ 1154(a)(1)(A)(i), 1101(b)(1)(F)(i). “The application, known as the I-600 petition, requests that the orphaned child be classified as an ‘immediate relative' and granted a visa to permanently reside in the United States.” Skalka v. Kelly, 246 F.Supp.3d 147, 149 (D.D.C. 2017) (citing 8 U.S.C. § 1154(a)(1)(A)(i)).
The goal of the I-600 petition is to determine whether the child meets the statutory definition of an “orphan.” Skalka, 246 F.Supp.3d at 150. In relevant part, the INA defines a “child” as follows:
[A] child, under the age of sixteen at the time a petition is filed on his behalf to accord a classification as an immediate relative under [8 U.S.C § 1151(b)], who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption; who has been adopted abroad by a United States citizen and spouse jointly, or by an unmarried United States citizen who is at least 25 years of age, at least 1 of whom personally saw and observed the child before or during the adoption proceedings ....8 U.S.C. § 1101(b)(1)(F)(i).
Section § 204.3 to Title 8 of the Code of Federal Regulations sets forth the regulatory framework for an orphaned child adopted from Ghana or Liberia, countries not a party to the Hague Convention, to be classified as an immediate relative for immigration purposes. The petitioner may submit the Form I-600 to USCIS along with supporting documentation to demonstrate that the child meets the statutory definition of an orphaned child. See 8 C.F.R. § 204.3(a)(1)(i)-(ii). Such supporting documentation includes the “orphan's birth certificate, or if such a certificate is not available, an explanation together with proof of identity and age,” evidence that the child is an orphan, and evidence of a full and final adoption abroad. See 8 C.F.R. § 204.3(d)(1). “The nonexistence or other unavailability of required evidence creates a presumption of ineligibility.” 8 C.F.R. § 103.2(b)(2)(i).
As described in Skalka,
The I-600 petition triggers a consular officer to conduct what is called an I-604 investigation into the veracity of the child being orphaned (i.e., verifying documentation, researching the child's age, hometown, etc.). By regulation, a consular officer must complete this investigation “in every orphan case,” and “[d]epending on the circumstances surrounding the case, the I-604 investigation shall include, but shall not necessarily be limited to, document checks, telephonic
checks, interview(s) with the natural parent(s), and/or a field investigation.” 8 C.F.R. § 204.3(k)(1). The timing of such an investigation is not specified except that it must be completed “before a[n I-600] petition is adjudicated.” Id. If the consular officer conducts a favorable I-604 investigation, he may approve the I-600 petition and the adoptive parents may apply for and obtain a visa for the child. If the officer determines the application is “not clearly approvable” based on his investigation, he refers it to the USCIS office in the jurisdiction. 8 C.F.R. § 204.3(k)(2). The I-604 investigation form declares that if there are “allegations or indications of fraud, child buying or other non-bona fide intent” the consular officer must “attach report and results of anti-fraud investigation to Form 1-604 when complete.” The USCIS office then reviews those findings and makes a final determination on the I-600 petition after providing the parents with notice and an opportunity to present contrary evidence.Skalka, 246 F.Supp.3d at 150.
C. Judicial Review under the APA
The APA “sets forth the full extent of judicial authority to review executive agency action for procedural correctness.” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009) The standard of review under the APA “is a narrow one,” see Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989), and Plaintiff bears the burden of proof. See Sierra Club v. Marita, 46 F.3d 606, 619 (7th Cir. 1995). Plaintiff seeks to set aside agency action, so she must show that the action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2). The purpose of APA review is limited; courts' role in screening for “arbitrary” or “capricious” actions is to “insist that the agency examine the relevant data and articulate a satisfactory explanation for its action.” F.C.C., 556 U.S. at 513. A court does not “substitute its judgment for that of the agency,” and should uphold a decision of less-than-ideal clarity if the agency's path may reasonably be discerned. Id. at 513-514.
D. USCIS' Finding of Child-Buying was Arbitrary and Capricious
The Court begins, as the consular officer did, with the allegations of child-buying. Indeed, a fair reading of the record shows that, had the consular officer not drawn the conclusion of child- buying, the first I-600 Petitions would have been granted. But the Court finds no evidence whatsoever of child-buying in the record. Instead, there is nothing but speculation based on timing. That cannot be enough under the applicable regulations, so the Court finds USCIS' decision to be arbitrary and capricious.
The applicable regulation is 8 C.F.R. § 204.3(i), which states:
Child-buying as a ground for denial. An orphan petition must be denied under this section if the prospective adoptive parents or adoptive parent(s), or a person or entity working on their behalf, have given or will give money or other consideration either directly or indirectly to the child's parent(s), agent(s), other individual(s), or entity as payment for the child or as an inducement to release the child. Nothing in this paragraph shall be regarded as precluding reasonable payment for necessary activities such as administrative, court, legal, translation, and/or medical services related to the adoption proceedings.
USCIS' policy manual further expands on what constitutes an appropriate payment. The manual provides:
Child-buying does not include reasonable payment for necessary activities such as administrative, court, legal, translation, or medical services related to the adoption proceedings. Foreign adoption services are sometimes expensive and the costs may seem disproportionately high in comparison with other social services. In many countries, there may be a network of legitimate adoption facilitators, each playing a transparent role in processing a case and reasonably expecting to be paid for their services.
The U.S. Department of State (DOS) works closely with foreign governments to identify costs related to intercountry adoption in particular countries. In most intercountry adoption cases, the expenses incurred can be explained in terms of reasonable payments. Even cash given directly to a birth mother may be justifiable if it relates directly to expenses such as pre-natal or neo-natal care, transportation, lodging, or living expenses.Policy Manual Volume 5 - Adoptions Part C - Child Eligibility Determinations (Orphan) Chapter 6 - Additional Requirements, https://www.uscis.gov/policy-manual/volume-5-part-c-chapter-6 (accessed May 6, 2024).
USCIS does not claim that Plaintiff paid Leona. So the only question before the Court is whether USCIS' determination that AFAA's payments to Leona were on Plaintiff's behalf and were “payment for the child or” given “as an inducement to release the child” was arbitrary and capricious. The Court notes that neither side has provided the Court with decisions interpreting this regulation, nor can the Court find any.
The facts related to the payment are not in dispute. AFAA gave Leona about $950 in April 2017. The stated reason for the payment was for airfare so that Leona could bring Cyrus from Ghana to Liberia. USCIS does not dispute that Cyrus was brought from Ghana to Liberia after the payment was made. The stated reason was inaccurate-that trip was made over land. But, when pressed by the consular officer, Leona consistently denied that the payment was for, or caused, the adoption.
First things first: there is no direct evidence of child-buying. There are no admissions of child-buying. All documents related to the payments show that they were for travel expenses. And all parties to the payments have unequivocally denied child-buying allegations. USCIS, then, can point to nothing in the record that conclusively supports its child-buying determination.
In the absence of direct evidence of child-buying, USCIS tries to substantiate its allegations by pointing to “suspicious” timing. It notes that the payment was made the same month that Leona judicially relinquished control of Cyrus and Anointed, that the payment was made the same month Plaintiff contacted AFAA about adoption, and that Leona continued to care for the children until June 2017. USCIS also notes that Leona lied to the consular officer during her interview when she said that she used the money to buy airline tickets for herself and Cyrus.
The Court rejects out-of-hand USCIS' timing arguments. All payments, permitted or not, will be in and around the time of the adoption. They are, after all, “related to the adoption proceedings.” 8 C.F.R. § 204.3(i). That the payments were close in time to Leona's judicial relinquishment of parental rights, or Plaintiff's contact with AFAA, says nothing about whether those payments were authorized or not.
Nor does the Court find Leona's lies to the consular officer compelling. As the regulation is written, the focus is on the intent of the giver. Id. (“A orphan petition must be denied under this section if . . . a person or entity working on [the adoptive parent's] behalf, have given or will give money . . . as payment for the child or as an inducement to release the child.”). Evidence of childbuying, then, must establish that AFAA intended the payment to be for an unauthorized purpose and that the payment was on behalf of Plaintiff. Leona may have taken the money and done something else with it, but that's neither here nor there. Leona's lies say nothing about AFAA's intent and do nothing to connect the payments to Plaintiff. No matter what Leona told the consular officer, it was not evidence of child-buying.
Finally, the Court finds nothing about the larger context of the situation that suggests childbuying. Only four years prior, Leona had willingly given two of her children up for adoption to her mother. Leona, then, had already been through the adoption process with no suggestion of an illegal payment. And there is no question that Leona incurred some travel expenses transporting Cyrus from Ghana to Liberia. Were those expenses as much as she received from AFAA? Perhaps not, but the existence of some expenses largely substantiates AFAA's stated reason for making the payments.
Rather than base a child-buying determination on evidence, the consular officer and USCIS relied on exactly what USCIS' attorneys say they did-“suspicions.” (ECF No. 32 at 13). That's not enough. “Speculation is, of course, no substitute for evidence, and a decision based on speculation is not supported by substantial evidence.” White ex rel. Smith v. Apfel, 167 F.3d 369, 375 (7th Cir. 1999). Speculation is all USCIS has, so its finding of child-buying was arbitrary and capricious.
E. The Discrepancies in the Record Regarding the Children's Birth Dates and Locations are Irrelevant to the Orphan Determination
The remaining issues are far easier to resolve, all against USCIS. First, USCIS argues that inconsistencies in the record regarding the children's birth dates and locations supported the denial of the I-600 Petitions because USCIS could not verify the children's “origins and identity.” This argument is both irrelevant and unsupported by substantial evidence.
Relevance first. Nothing in either the United States Code or the Code of Federal Regulations requires USCIS to verify, or Plaintiff to prove, the children's age or place of birth. With respect to age, the only requirement is in 8 U.S.C. § 1101(b)(1)(F)(i), which requires that an orphan be “under the age of sixteen” when the I-600 Petition is filed. No matter the date USCIS chose to accept, both Anointed and Cyrus were well-below this threshold. And federal statutes make no reference at all to country of birth. USCIS' reliance on discrepancies in information that need not be proven cannot support the denial of the I-600 Petitions.
The Court concedes, as USCIS argues, that both age and place of birth could be relevant in determining the identity of the children. Of course, no one wants children that have been kidnapped or trafficked to be put up for adoption by their abductor. But the evidence in this case is so overwhelming that Cyrus and Anointed were Leona's children that any concerns over their identity seem fabricated.
Simply put, one struggles to imagine what other evidence of the children's identity USCIS could have reasonably wanted. The agency was provided with:
- the Adoption Decree from a Liberian court identifying the children's birth dates and locations;
- Liberian passports, birth certificates, and immunizations records for both children;
- statements from individuals that witnessed both births;
- a death certificate for the original Anointed; and
- DNA tests confirming that Leona was the children's mother.
What else could possibly have been provided?
In the face of this evidence, what USCIS relied upon is extraordinarily weak. USCIS primarily relies upon the statements in Jamesetta's I-130 Petitions. But the record shows that these Petitions had nothing to do with Cyrus or Anointed and that the statements therein have been disavowed by Jamesetta. The reference to Anointed in Jamesetta's Petitions has been explained by a death record. Why USCIS continues to rely on Jamesetta's Petitions, while ignoring all other explanatory evidence, is anyone's guess.
Indeed, USCIS effectively concedes that the statements in Jamesetta's unrelated I-130 Petitions are not competent evidence here. (ECF No. 32 at 9-10) (“any decision or evidence pertaining to the adjudication of the Twins' petitions that was not presented in Anointed and Cyrus's petitions cannot inform the Court's decision as to whether USCIS acted arbitrarily and capriciously with respect to Plaintiff's petitions”).
The other evidence of “discrepancies” fares no better. USCIS points to the Ghanaian birth certificates for the children, issued while the family sought refuge in Ghana from armed conflict. But Plaintiff has successfully discredited those birth certificates with journalistic and academic articles undermining the certificates' credibility. Leona has also provided a sworn statement that the Ghanaian documents are wrong and that she unsuccessfully sought to have them corrected.
The rest of the evidence is simply petty. USCIS notes that Ministry social workers listed different birth dates for the children, but this is an obvious case of transposing the day for one child's birth onto the other. (May 24 and March 30 vs. May 30 and March 24). It curiously chides AFAA and Plaintiff for claiming in emails that a 7-year-old could be a year and a half older than a 5-year-old-Government attorneys apparently don't know that ages represent an entire year range of birth dates, not dates-certain vis-a-vis another person. USCIS grasps at straws, none of which truly call into question the identity of the children.
This is not a case of reweighing evidence. Instead, the Court is recognizing the undisputed, and undisputable, fact that Cyrus and Anointed were Leona's children and were under the age of 16 when the I-600 Petitions were filed. Because that is all that was required by federal statute, USCIS' decision to deny the I-600 Petitions because of irrelevant, unsupported, and sparse evidence was arbitrary and capricious.
F. USCIS' Finding that the Children were not “Abandoned” was Arbitrary and Capricious
Age aside, the children must also have been “abandoned” to meet the statutory definition of an orphan. The Code of Federal Regulations defines abandonment as:
the parents have willfully forsaken all parental rights, obligations, and claims to the child, as well as all control over and possession of the child, without intending to transfer, or without transferring, these rights to any specific person(s). Abandonment must include not only the intention to surrender all parental rights, obligations, and claims to the child, and control over and possession of the child, but also the actual act of surrendering such rights, obligations, claims, control, and possession.8 C.F.R. § 204.3(b). The Court finds that all competent evidence establishes that Cyrus and Anointed were abandoned by their parents.
The Court believes that the analysis of Leona's abandonment starts and finishes with the April 2017 Affidavit of Relinquishment. There, Leona affirmed under oath that “[d]ue to her destitution coupled with mental anguish,” she “was no longer in the position to provide life necessities for the support and care of her children.” Leona understood that “upon relinquishment . . . she voluntarily and unconditionally consents, and irrevocably relinquishes, grants all and singular the rights, privileges over” Cyrus and Anointed to AFAA and JWM. This was legal abandonment, filed in a court of competent jurisdiction. And the Affidavit is corroborated by the record, including statements by Leona to the consular officer in October 2019 that AFAA was attempting to find an adoptive home for the children in April 2017. The Court can think of little evidence that could be more compelling.
In the face of this legal abandonment, USCIS relies on information that is demonstrably false. It primarily relies on Leona's February 2019 statement to the consular officer that she did not begin to consider adoption for Cyrus and Anointed until June 2017 or later. But that can't be true, given that she had legally abandoned her children to AFAA and JWM in April 2017. USCIS does not, and cannot, explain why a statement made years later, and objectively refuted by documentary evidence, should be given any evidentiary weight.
USCIS also relies on Leona's statement to Ministry social workers in July 2018 that she “willingly gave her child away to be adopted by the Blanford's family” as evidence that the children were not “abandoned” because they were transferred to a specific person. But again, this statement by Leona is directly contradicted by the Affidavit that states her parental rights were surrendered to AFAA and JWM. The Court also notes that the Ministry interview with Leona was conducted as part of the adoption proceedings in Liberia-that is, the children were being adopted by Plaintiff by this time. There is nothing suspicious about Leona's statement. It was simply a recognition of the situation at the time it was given.
Finally, USCIS asserts that Plaintiff failed to show that the children's fathers abandoned them because there was no evidence of attempts to locate those fathers. The agency concedes that the only evidence in the record is that the whereabouts of the fathers are unknown. (ECF No. 27 at 19-20). And the record reflects that concession, as even the legal filings made during the adoption process unequivocally state that the fathers' whereabouts are unknown. (ECF No. 15-1 at 299). But USCIS calls this undisputed evidence “insufficient” to establish that the fathers abandoned the children, instead requiring evidence of attempts to reach the fathers.
The Court finds no support for USCIS' demand for additional evidence. Again, the record is undisputed that the fathers' locations were unknown. There is no evidence in the record that the fathers were ever involved in the children's lives. Rather, the record is clear that the fathers abandoned the children, both legally and colloquially, to the care of Leona. In the face of that record, USCIS presents no authority that would require Leona or Plaintiff to traipse across West Africa looking for two men who had willingly absented themselves from the lives of their children.
Again, this is not a case of reweighing evidence. USCIS had definitive, documentary evidence that the fathers abandoned the children to Leona, and that Leona legally abandoned her children to AFAA and JWM. The evidence on which USCIS relied, consisting of out-of-date, demonstrably false statements, could not and did not overcome the legal, documentary evidence. That USCIS found otherwise was arbitrary and capricious.
III. Conclusion
For these reasons, Plaintiff's motion for summary judgment (ECF No. 22) is GRANTED and Defendant's motion for summary judgment (ECF No. 25) is DENIED. Defendant is ORDERED to approve the I-600 Petitions filed by Plaintiff on behalf of Anointed and Cyrus without delay.
SO ORDERED.