Kaho v. Ilchert

Customary adoptions were very common in Tonga and were an important aspect of Tongan culture. In 1982, the United States Board of Immigration Appeals (BIA) considered whether Tongan customary adoptions were valid for immigration purposes. At that time, the BIA held that Tongan customary adoptions did not create a legal status or relationship under Tongan law and, for that reason, the BIA did not consider that customary adoptions were valid for immigration purposes. The BIA based its decision on two letters that the Tongan crown solicitor issued in the matter. In the first letter, the crown solicitor stated that customary adoptions were not recognized as legally valid under Tongan law, but the crown solicitor retracted that statement in a second letter. In the second letter, the crown solicitor further explained that customary adoptions created a parent-child relationship that was recognized by Tongan law. According to the letter, customary adoptions did not come before the court, because customary adoptions were accepted by Tongan society and therefore not subject to legal dispute. The issue came before the BIA again after the mother of two children, Valeti and Tupuo, died in Tonga. Valeti and Tupuo’s father gave their custody to a relative, Kuli Haapai Kaho (plaintiff). Kaho was a lawful permanent resident of the United States and filed a petition for a family-sponsored preference visa for Valeti and Tupuo, on the basis that Kaho customarily adopted them. David Ilchert (defendant), a district director of the Immigration and Naturalization Service (INS), denied the petition. Kaho appealed to the BIA, which affirmed the INS’s denial, concluding that customary adoption was not recognized as legal adoption in Tonga. Kaho appealed to a district court, which considered the two letters and the testimony of an anthropologist that in cases in which familial relationships were disputed, Tongan courts recognized customary adoptions. The district court reversed the BIA and remanded to the INS to determine whether Kaho’s adoption was a bona fide customary adoption. Ilchert appealed to the United States Court of Appeals for the Ninth Circuit.