## Facts

- Kuli Haapai Kaho, a U.S. lawful permanent resident, petitioned for second-preference immigrant visas for Valeti Kaho and Tupou Kaho as his adopted children.
- Valeti and Tupou were born in Tonga to their natural parents; after their mother died, their father placed them with Kaho, a maternal cousin, to raise.
- Kaho claimed he adopted the children under Tongan customary adoption practices.
- The INS district director denied the petitions, reasoning customary adoptions were not legally recognized in Tonga and therefore could not qualify as “adoptions” under the Immigration and Nationality Act’s definition of “child.”
- The BIA affirmed based on prior administrative decisions stating Tongan customary adoptions did not create a legal parent-child relationship.
- In district court, the plaintiffs submitted documentary materials and expert testimony, including later clarification from Tonga’s Crown Solicitor and anthropological testimony indicating customary adoptions can be legally recognized in Tonga, particularly when family status is disputed.
- The district court granted summary judgment for the plaintiffs and remanded to the INS to determine whether Kaho had a bona fide customary adoption of the children.
- The INS district director appealed, arguing the district court improperly conducted de novo review and that Tongan customary adoptions were not valid under Tongan law.

## Issues

1. Whether a federal district court may determine the content of foreign law de novo, rather than deferring to the BIA’s determination, when foreign law is material to immigration eligibility.
2. Whether Tongan customary adoptions are legally recognized under Tongan law such that they may qualify as “adoptions” for purposes of defining a “child” under 8 U.S.C. § 1101(b)(1)(E).
3. Whether, if customary adoption is legally cognizable in Tonga, the proper disposition is remand to the INS to decide whether the claimed customary adoption was bona fide and satisfies statutory requirements.

## Decision

- The Ninth Circuit affirmed the district court.
- The district court did not err in determining the content of Tongan law de novo using documentary and expert materials.
- The district court correctly concluded that Tongan customary adoptions are legally recognized under Tongan law.
- Because the legal premise for the denials was incorrect, remand to the INS was appropriate to decide whether a bona fide customary adoption occurred and whether statutory conditions were met.

## Legal Principles

- The content of foreign law is a question of law for the court, subject to de novo determination.
- A court may consider expert testimony and other relevant materials to ascertain foreign law when resolving issues tied to statutory eligibility.
- For immigration purposes, an “adoption” under 8 U.S.C. § 1101(b)(1)(E) depends on whether the adoption is valid under the law of the place where it occurred; customary adoptions may qualify if they create a legally recognized parent-child relationship under that law.
- When an agency denies petitions based on an incorrect understanding of foreign law, the proper remedy is to set aside that legal determination and remand for agency factfinding on whether the claimed relationship is bona fide and satisfies the statute’s timing and custody requirements.

## Conclusion

The court held that federal courts independently determine the content of relevant foreign law and concluded that Tongan customary adoption is legally recognized; the visa denials could not rest on a categorical rejection of customary adoption, so the matter was remanded for the INS to decide whether the claimed customary adoption was bona fide and met statutory criteria.


Kaho v. Ilchert, 765 F.2d 877 (9th Cir. 1985)