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US District Court : IMMIGRATION - Citizenship and Immigration Services decision regarding insufficent proof of adoption not arbitrary, capricious, abuse, illegal

Maria Van Thuy Thi Doan,
Civ. No. 06-692 ADM/AJB
Alberto R. Gonzales,
Russell A. Norum, Esq., Minneapolis, MN, argued on behalf of Petitioner.
Lonnie F. Bryan, Esq., Assistant United States Attorney, Minneapolis, MN, argued on behalf of
Before the Court is Petitioner Maria Van Thuy Thi Doans (Doan) Motion for
Summary Judgment [Docket No. 15]. Doan asks the Court to direct Citizenship and Immigration
Services (CIS) to grant her I-130 Petition for Alien Relative filed on behalf of her adopted son
Luyen Van Nguyen (Nguyen). For the reasons set forth herein, Doans Motion is denied.
On March 29, 2004, Doan, a naturalized United States citizen, filed an I-130 Petition for
Alien Relative with CIS on behalf of her adopted son Nguyen. Admin. Rec. at 1-2. Doan sought
to establish Nguyen as her relative to enable Nguyens ability to obtain a visa to immigrate to the
United States. Nguyen, age thirty-nine, resides in Vietnam. Id. In support of her I-130 Petition,
Doan submitted an affidavit of her agreement to take Nguyen as her adopted son. Id. at 14. The
affidavit was signed by Doan and the Village Chief on December 30, 1967. Id. Doan also
submitted an affidavit signed by Pham Thi Ngot (Ngot), Nguyens biological mother,
evidencing Ngots agreement to give Nguyen to Doan for adoption [b]ecause of my situation
very poor, weak and sickness, I can not afford to raise and educate my son. Id. at 16. Ngots
affidavit was also signed on December 30, 1967, by the Village Chief. Id. Doan also submitted
a State of Minnesota divorce decree. Id. at 18. The 1991 divorce decree states that Doan and
Thien Van Nguyen were married in 1966, separated in 1975, and divorced in 1991. Id. at 18a-c.
The divorce decree also makes a finding of fact that Doan gave birth to one child in 1970, and
that no other minor children were born or adopted during the marriage, or conceived and not yet
born. Id. at 18a.
On July 27, 2004, CIS sent Doan a Request for Evidence letter (RFE) because the
documentation previously submitted by Doan was not sufficient to warrant favorable
consideration of her I-130 Petition. Id. at 19. The RFE set forth various types of acceptable
evidence that could be submitted to establish Doans adoption of Nguyen. Id. at 20. On October
6, 2004, Doan responded to the RFE by letter. Id. at 21. Doan asserted that she and Ngot only
signed papers before their Village Chief because living in rural area we did not know about the
adoption process. Id. Doan also asserted that several of her relatives were witnesses and had
knowledge that she raised Nguyen. Id. Doan stated that she raised Nguyen from December 30,
1967 to August 1972. Id. When Nguyen reached school age, Doan sent him back to live with
his family but kept sending money to help. Id. Doan again submitted the adoption affidavits in
support of her I-130 Petition along with letters from family members supporting the claim that
Doan raised Nguyen. Id. at 22-41.
On November 29, 2004, the Acting Director of CIS denied Doans I-130 Petition. Id. at
42-43. The Acting Director determined that the affidavits submitted by Doan did not prove that
Doan had legal custody of Nguyen or that Doan legally adopted Nguyen. The Acting Director
also determined that the evidence submitted did not establish that Nguyen had been in the legal
custody of Doan for at least two years as of the date the I-130 Petition was filed. Id. On
December 27, 2007, Doan appealed the Acting Directors denial to the Board of Immigration
Appeals (BIA), arguing that the Acting Director failed to take into account the authenticity of
the Village Chiefs authority approving the adoption under laws existing at the time of the
adoption. Id. at 44. In support of her appeal, Doan submitted an affidavit, averring that she fled
Vietnam on April 30, 1975 to escape the Communists, leaving all of her relatives behind. Id. at
64. Doan states she has regularly sent money to her children and kept in contact with them. Id.
Doan also averred that the Village Chief had the civil authority to conduct the affairs of the
village, and that any other documents that would have supported the adoption of Nguyen were
destroyed after the Communists took over. Id. at 65.
On July 15, 2005, the BIA affirmed without opinion the Acting Directors denial of
Doans I-130 Petition. Id. at 87. Doan now appeals to this Court, asking that CIS be ordered to
grant her I-130 Petition.
A. Standard of Review and Relevant Statutes and Regulations
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c); see Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for
summary judgment, the Court views the evidence in the light most favorable to the nonmoving
party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). The nonmoving party may not
rest on mere allegations or denials, but must demonstrate on the record the existence of specific
facts which create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953, 957
(8th Cir. 1995).
Judicial review of a CIS decision denying an I-130 petition is governed by the
Administrative Procedure Act (APA), 5 U.S.C. 701-06. The denial of a petition for
preferential immigration classification is reviewed for a determination of whether the decision
was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.
Gipson v. INS, 284 F.3d 913, 916 (8th Cir. 2002), citing 5 U.S.C. 706(2). The scope of
review under the arbitrary and capricious standard is narrow and a court is not to substitute its
judgment for that of the agency. Motor Vehicle Mfrs. Assn. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983). An agency decision is arbitrary and capricious if the agency fails to
examine relevant evidence or articulate a satisfactory explanation for the decision. Bangura v.
Hansen, 434 F.3d 487, 502 (6th Cir. 2006), citing Motor Vehicle, 436 U.S. at 42-43. While an
agency must articulate a rational connection between the facts found and the choice made, a
court will uphold a decision of less than ideal clarity if the agencys path may be reasonably
discerned. Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285-86
As a United States citizen, Doan may file a petition seeking preferential visa status for
her married son Nguyen. See 8 U.S.C. 1153(a)(3), 1154(a)(1)(A)(i); 8 C.F.R. 204.2(d)(1).
Under the immigration laws, an adopted child is defined as a child adopted while under the age
of sixteen years who has been in the legal custody of and resided with the adopting parent for at
least two years. 8 U.S.C. 1101(b)(1)(E)(i); 8 C.F.R. 204.2(d)(2)(vii). Doan must provide
evidence establishing her relationship with Nguyen. 8 C.F.R. 204.2(d)(2). A copy of the
adoption decree, issued by the civil authorities, must accompany the petition. 8 C.F.R.
Legal custody means the assumption of responsibility for a minor by an adult under the
laws of the state and under the order or approval of a court of law or other appropriate
government entity. This provision requires that a legal process involving the courts or
other recognized government entity take place. . . . An informal custodial or guardianship
document, such as a sworn affidavit signed before a notary public, is insufficient for this
8 C.F.R. 204.2(d)(2)(vii)(A).
Evidence must also be submitted to show that the beneficiary resided with the petitioner
for at least two years. Generally, such documentation must establish that the petitioner
and the beneficiary resided together in a familial relationship. Evidence of parental
control may include, but is not limited to, evidence that the adoptive parent owns or
maintains the property where the child resides and provides financial support and day-today
supervision. The evidence must clearly indicate the physical living arrangements of
the adopted child, the adoptive parent(s), and the natural parent(s) for the period of time
during which the adoptive parent claims to have met the residence requirement. When
the adopted child continued to reside in the same household as a natural parent(s) during
the period in which the adoptive parent petitioner seeks to establish his or her compliance
with this requirement, the petitioner has the burden of establishing that he or she
exercised primary parental control during that period of residence.
8 C.F.R. 204.2(d)(2)(vii)(B).
B. Review of CISs Denial of Doans I-130 Petition
As an initial matter, the government argues that the REAL ID Act deprives this Court of
subject matter jurisdiction. See 8 U.S.C. 1252(a)(2)(B)(ii). The governments argument is
unpersuasive. There is nothing in the statutes or regulations at issue that specifies that the
1 The Court recently considered the REAL ID Act and its ability to deprive the Court of
jurisdiction in another case. For more in depth analysis, see Sabhari v. Frazier, Civ. No. 06-196
ADM/RLE, 2007 WL 295261, *7-11 (D. Minn. Jan. 30, 2007).
Attorney Generals decision to grant or deny Doans I-130 Petition is discretionary. See id.; 8
U.S.C. 1154(b); 8 C.F.R. 204.2(d)(1)-(3). Accordingly, the REAL ID Act does not strip this
Court of subject matter jurisdiction.1
Doan argues that at the time of Nguyens adoption in 1967, the custom in the villages of
Vietnam was the Village Chief would act as the official civil authority over matters of adoption.
Therefore, Doan argues her adoption affidavits signed by the Village Chief are sufficient legal
proof of adoption approved by the civil authority. Doan also argues that the affidavits she
submitted are the only documents in existence that prove Doan adopted Nguyen. Doan argues
that the Acting Director did not take Vietnamese history into account when he found that the
documents submitted were insufficient to prove that Doan adopted Nguyen. Doan also argues
that the Acting Director failed to address the affidavits submitted and failed to explain the basis
for his decision.
CISs decision to deny Doans I-130 Petition was not arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law. Ideally, CIS should have set forth a
more explicit explanation as to the denial of Doans I-130 Petition, but the path to its decision is
discernable nonetheless. The immigration laws require Doan to provide a copy of the adoption
decree issued by the civil authorities. Legal custody requires a legal process involving the
courts or other recognized government entity, and an informal custodial document such as a
sworn affidavit signed before a notary public is insufficient. Doan provided affidavits signed by
herself, Nguyens birth mother, and their Village Chief. Doan argues that the Village Chief had
the legal authority to preside over her adoption of Nguyen and provides a brief history of the
government of Vietnam in 1967, as taken from American research records. Doan argues that any
other records that would have supported her adoption claim have been destroyed. Doans
affidavits and summation of Vietnam history are simply insufficient to establish that Doan had
legal custody of Nguyen. Doan provides no formal legal evidence of the Village Chiefs
authority to preside over adoptions. Doan provides no formal legal documents evidencing her
adoption of Nguyen. Additionally, there is an inconsistency between the affidavits and the
finding of fact in the divorce decree about whether Doan adopted a son.
The immigration laws also require Doan to submit evidence to establish that Nguyen
resided with her for at least two years. Doan submits her sworn affidavit, as well as letters from
family members, attesting that Nguyen lived with Doan for more than two years. However,
Doan submits no evidence in support of the residency requirement beyond her own averments,
such as school records, health records, or census records. Because CISs denial of Doans I-130
Petition was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
the law, Doans Motion for Summary Judgment is denied.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Petitioner Maria Van Thuy Thi Doans Motion for Summary
Judgment [Docket No. 15] is DENIED.
s/Ann D. Montgomery
Dated: August 23, 2007.


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