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Cantwell v. Holder

United States District Court, S.D. New York

February 6, 2014

SALLY CANTWELL, PAUL CANTWELL, and SAMUEL ALEXANDER EDWARDS, Plaintiff,
v.
ERIC HOLDER et al., Defendants

For Sally Cantwell, Paul Cantwell, Samuel Alexander Edwards, Plaintiffs: Peter Douglas Roberts, LEAD ATTORNEY, PRO HAC VICE, Edwards Wildman Palmer LLP, Stamford, CT; Zachary Winthrop Silverman, Edwards Wildman Palmer LLP (NYC), New York, NY.

For Eric Holder, Attorney General, Janet Napolitano, Secretary of Homeland Security, Alexander Mayorkas, Director of USCIS, Andrea Quarantillo, USCIS New York District Director, Defendants: Christopher Kendrick Connolly, United States Attorney's Office, New York, NY.

OPINION

Page 317

ORDER AND OPINION REVERSING BOARD OF IMMIGRATION APPEALS AND DIRECTING IT TO UPHOLD ORDER OF NEW YORK FAMILY COURT

ALVIN K. HELLERSTEIN, United States District Judge.

Plaintiffs' appeal from an order of the Board of Immigration Appeals (" BIA" ) refusing to recognize an order of the New York Family Court in Westchester County that conferred adoptive status on plaintiff Samuel Alexander Edwards. I hold, following the decisions of other United States District Courts, that the BIA erred, that it should have given full faith and credit to the decision of the New York Family Court, and I reverse the BIA decision and remand to it for reconsideration of the petition in accordance with this order.

There are no facts in dispute. Both sides have moved for judgment on the administrative record, the plaintiffs by motion for judgment pursuant to Fed.R.Civ.P. 12(c) and the government by motion for summary judgment pursuant to Fed.R.Civ.P. 56. The district court has jurisdiction to hear an issue arising under the laws of the United States, 28 U.S.C. § 1331, and to right a legal wrong caused by agency action, 5 U.S.C. § 702.

I. Factual and Procedural Background

Samuel Alexander Edwards (" Samuel" ) was born on July 12, 1991, in the United Kingdom (" UK" ). His mother was an alcoholic and, when it became evident that she could not take care of him, UK Social Services transferred him to the care of his aunt and uncle, plaintiffs Sally and Paul Cantwell. In 1996, UK Social Services formally determined that Samuel's mother was not fit to take care of him. On July 11, 1996, Sally and Paul accepted a UK Residence Order giving them parental responsibility over Samuel until he reached 16. Throughout, Samuel has been residing with Sally and Paul without interruption.

In 2000, Sally Cantwell was transferred by her employer to the United States, and Paul and Samuel moved with her to Westchester County. In 2002, when Samuel was approximately 11 years old, Samuel's mother suffered liver failure and died.

Page 318

Upon the news of Samuel's mother's death, Sally and Paul Cantwell promptly commenced proceedings in the UK to adopt Samuel. However, the matter did not conclude, for the UK Family Court required a social worker from the court to assess Samuel's home in the United States, and lacked willingness, financial capability or jurisdiction to order a worker to visit Samuel's home in the United States. In February 2007, it became evident to the Cantwells that the UK Family Court would not act on their petition to adopt Samuel.

In May 2007, the Cantwells filed an adoption petition in New York Family Court. In April 2008, the Westchester Family Court granted the petition and issued a nunc pro tunc adoption order, effective July 11, 2007 (the day before Samuel turned 16). After Sally Cantwell became a citizen in June 2010, she filed a Form I-130 Immigrant Petitioner in July 2010, with the United States Citizenship and Immigration Services (" USCIS" ) to confer benefits on Samuel to which he would be entitled if recognized as her adopted child under 8 U.S.C. § 1151(b)(2). Concurrently, a Form I-485 Application for Adjustment of Status was filed on behalf of Samuel to acquire permanent resident status.

In October 20, 2011, the New York District Office of USCIS denied the Form I-130 Immigrant Petition. See Administrative Record (AR) 18-20. It refused to give effect to the nunc pro tunc Adoption Order and denied the petition. The order stated the fact that the order of the family court, although effective before ...


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