By David A. Isaacson
Under the
Immigration and Nationality Act (“INA”), there are three ways that adopted
children can qualify as the children of a U.S. citizen parent for purposes of
acquiring lawful permanent resident status, and generally derivative U.S.
citizen status, through that adoptive parent.
Section
101(b)(1)(E) of the INA, perhaps the most familiar, defines an adopted
child as a child for immigration purposes where the child was adopted under the
age of 16 (or under the age of 18 and is the sibling of a child adopted by the
same parents while under the age of 16), and “has been in the legal custody of,
and has resided with, the adopting parent or parents for at least two
years.” Sections 101(b)(1)(F) and
101(b)(1)(G) of the INA provide different procedures for children sometimes
referred to as orphans, depending upon whether the child is from “a foreign
state that is a party to the Convention on Protection of Children in Respect of
Intercountry Adoptions, done at The Hague on May 29, 1993,” commonly referred to as
the Hague Adoption Convention. By
regulation, according to 8
C.F.R. §204.2(d)(2)(vii)(D), the regular 101(b)(1)(E) procedures based on
two years of legal custody and joint residence may not be used to file an I-130
petition for certain children from countries that have subscribed to the Hague
Adoption Convention. In an interim
memorandum posted by USCIS on January 3, 2014 (although dated December 23,
2013) and designated PM
602-0095, however, USCIS has indicated that it will somewhat narrow the
class of children ineligible for regular 101(b)(1)(E) procedures.
To understand PM
602-0095, it is important to understand the background of the problem that it
addresses. Pursuant to 8
C.F.R. §204.2(d)(2)(vii)(D), which governs I-130 petitions filed for an
adopted child based on INA §101(b)(1)(E),
On or
after the Convention effective date, as defined in 8 CFR part 204.301, a United
States citizen who is habitually resident in the United States, as determined
under 8 CFR 204.303, may not file a Form I-130 under this section on behalf of
child who was habitually resident in a Convention country, as determined under
8 CFR 204.303, unless the adoption was completed before the Convention
effective date. In the case of any adoption occurring on or after the
Convention effective date, a Form I-130 may be filed and approved only if the
United States citizen petitioner was not habitually resident in the United
States at the time of the adoption.
That is, for an adoption completed after the April 2008 effective
date of the Hague Adoption Convention, USCIS will not approve an I-130 petition
for “a child who was habitually resident in a Convention country” unless “the
United States citizen petitioner was not habitually resident in the United
States at the time of the adoption.” A list of
Convention countries is available on the State Department website.
The reader may
wonder at this point why the unavailability of an I-130 petition under INA §101(b)(1)(E)
would be a problem for a child from a Hague Adoption Convention country, if
Hague Adoption Convention procedures under INA §101(b)(1)(G) can
be used instead. The answer is that the
procedures under INA §101(b)(1)(G) are designed for cases in which the
petitioner seeks out a child in a foreign country for the specific purposes of
adoption and immigration, and are ill-fitted for many cases in which an
adoptive relationship already exists before any thought of immigration benefits
has entered anyone’s mind, or in which the child already resides in the United
States. For example, one factor
ordinarily requiring the denial of a Form I-800 petition under the Hague
procedures, according to 8
C.F.R. §204.301(b)(1), is that “the petitioner completed the adoption of
the child, or acquired legal custody of the child for purposes of emigration
and adoption, before the provisional approval of the Form I-800,” unless “a
competent authority in the country of the child’s habitual residence voids,
vacates, annuls, or terminates the adoption or grant of custody and then, after
the provisional approval of the Form I-800 . . . permits a new grant of
adoption or custody.” Many adoptive
parents are understandably horrified at the thought of giving up custody of an
adopted child with whom they have had a parental relationship for some time, in
order to allow the Hague Adoption Convention procedures to play out. Also, unless the child was already related to
the adoptive parent in one of several ways listed in the regulations at 8
C.F.R. §204.301(b)(2)(iii), any contact with the child’s biological parents
before the Hague process begins can be grounds for denial of the I-800 petition
under 8
C.F.R. §204.301(b). Even if these
pitfalls are avoided, Form I-800 cannot be approved for a child who is in the
United States “unless the petitioner, after compliance with the [regulatory]
requirements . . . either adopt(s) the child in the Convention country, or
else, after having obtained custody of the child under the law of the
Convention country for purposes of emigration and adoption, adopt(s) the child
in the United States.” 8
C.F.R. 204.309(b)(4). Thus, where
there is a pre-existing adoptive relationship or other obstacles to the Hague
Adoption Convention process would apply, U.S. citizen adoptive parents may be
anxious to escape the bar of 8
C.F.R. §204.2(d)(2)(vii)(D) and obtain approval of an ordinary I-130
petition based on two years of legal custody and residence with the child under
INA §101(b)(1)(E).
The regulations make clear one way in which a
U.S. citizen petitioner can escape from the bar of 8
C.F.R. §204.2(d)(2)(vii)(D), by demonstrating that the U.S. citizen petitioner
is not habitually resident in the United States. According to 8
C.F.R. §204.2(d)(2)(vii)(E), “[f]or purposes of paragraph (d)(2)(vii)(D) of
this section, USCIS will deem a United States citizen . . . to have been
habitually resident outside the United States, if the citizen satisfies the
2-year joint residence and custody requirements by residing with the child
outside the United States.” That is, so
long as the two-year joint residence and physical custody requirements are
fulfilled by the petitioner residing with the adopted child outside the
United States, an ordinary I-130 petition may be approved under INA
§101(b)(1)(E). USCIS has also clarified,
in a Memorandum
dated October 31, 2008, and incorporated in relevant part into Chapter 21.4(d)(5)(F)
of the USCIS Adjudicator’s Field Manual, that the 8
C.F.R. §204.2(d)(2)(vii)(E) exception is “not the only situation in which the
adoptive parent may claim not to have been habitually resident in the United
States at the time of the adoption.” Rather, “[t]here may be other situations in
which the adoptive parent can establish th[at] he or she was not domiciled in
the United States, and did not intend to bring the child to the United States
as an immediate consequence of the adoption.”
In such other cases of a non-habitually-resident petitioner, as well,
USCIS has recognized that “the Hague Adoption Convention process would not
apply.”
Where the U.S. citizen petitioner is admittedly
a habitual resident of the United States, but it appears that the adopted child
may be a habitual resident of the United States as well (in which case the
Hague Adoption Convention procedures again should not apply), things get more
complicated. At least part of the regulations
err on the side of presuming that a child who has come to the United States
from a Hague Adoption Convention country is still a habitual resident of that
country, so that an I-130 petition for that child by a U.S. citizen parent
habitually resident in the United States will not be allowed. Title
8, section 204.2(d)(2)(vii)(F) of the Code of Federal Regulations provides:
For
purposes of paragraph (d)(2)(vii)(D) of this section, USCIS will not approve a
Form I-130 under section 101(b)(1)(E)
of the Act on behalf of an alien child who is present in the United States
based on an adoption that is entered on or after the Convention effective date,
but whose habitual residence immediately before the child's arrival in the
United States was in a Convention country. However, the U.S. citizen seeking
the child's adoption may file a Form I-800A and Form I-800 under 8
CFR part 204 , subpart C.
Read in isolation, this might suggest that a child who resided in a
Hague Adoption Convention country before coming to the United States could
never be the beneficiary of an I-130 petition by a U.S. citizen adoptive parent
habitually resident in the United States.
Another portion of the regulations, however, provides for a determination
regarding the child’s habitual residence:
If the
child’s actual residence is outside the country of the child's citizenship, the
child will be deemed habitually resident in that other country, rather than in
the country of citizenship, if the Central Authority (or another competent
authority of the country in which the child has his or her actual residence)
has determined that the child's status in that country is sufficiently stable
for that country properly to exercise jurisdiction over the child's adoption or
custody. This determination must be made by the Central Authority itself, or by
another competent authority of the country of the child's habitual residence,
but may not be made by a nongovernmental individual or entity authorized by
delegation to perform Central Authority functions. The child will not be
considered to be habitually resident in any country to which the child travels
temporarily, or to which he or she travels either as a prelude to, or in
conjunction with, his or her adoption and/or immigration to the United States.
8 C.F.R. §204.303(b). The
“Central Authority”, as the term is used here, refers to an entity designated
under the Hague Adoption Convention by a Convention country to perform
functions under the Convention, as explained in the definitional provisions at 8
C.F.R. §204.301.
In its October
31, 2008 Memorandum, USCIS recognized that under certain circumstances, a child
resident in the United States should be exempt from the seeming bar of 8
C.F.R. §204.2(d)(2)(vii)(F) to approval of an I-130 petition under INA
§101(b)(1)(E), where the Central Authority of the child’s country had
determined that the child was no longer a habitual resident of that
country. As the October 31, 2008
Memorandum explained:
There may be situations, however, in
which the parent is not able to complete a Hague Adoption Convention adoption,
because the Central Authority of the child’s country has determined that, from
its perspective, the Hague Adoption Convention no longer applies to the child.
The purpose of 8 CFR 204.2(d)(2)(vii)(F) is to prevent the circumvention of the
Hague Adoption Convention process. Thus, USCIS has determined that 8 CFR
204.2(d)(2)(vii)(F) must be read in light of the Hague Adoption Convention
regulations in subpart C of 8 CFR part 204. If, under subpart C, there is a
sufficient basis for saying that the Hague Adoption Convention and the
implementing regulations no longer apply to a child who came to the United
States from another Hague Adoption Convention country, then USCIS can conclude
that 8 CFR 204.2(d)(2)(vii)(F) no longer applies.
The governing regulation, 8 CFR
204.303(b), explains when the child is habitually resident in a country other
than the country of citizenship. This regulation does not explicitly apply to
children in the United States, but USCIS has determined that it can be
interpreted to permit a finding that a child who, under 8 CFR
204.2(d)(2)(vii)(F), is presumed to be habitually resident in another Hague
Adoption Convention country can be found to be no longer habitually resident
[in] that country, but to be habitually resident, now, in the United States.
USCIS will determine that 8 CFR 204.2(d)(2)(vii)(F) no longer precludes
approval of a Form I-130 if the adoption order that is submitted with the Form
I-130 expressly states that, the Central Authority of the other Hague Adoption
Convention country has filed with the adoption court in the United States a
written statement indicating that the Central Authority is aware of the child’s
presence in the United States, and of the proposed adoption, and that the
Central Authority has determined that the child is not habitually resident in
that country. A copy of the written statement from the Central Authority must
also be submitted with the Form I-130 and the adoption order.
If the adoption order shows that the
Central Authority of the other Hague Adoption Convention country had determined
that the child was no longer habitually resident in that other Hague Adoption
Convention country, USCIS will accept that determination and, if all the other
requirements of section 101(b)(1)(E) are met, the Form I-130 could be approved.
October
31, 2008 Memorandum at 5. As USCIS
explained later in PM
602-0095, summarizing prior guidance, a
modified version of this process could also be used even if the adoption had
already occurred: “In cases where the written statement from the Central
Authority in the child’s [country of origin] is not obtained until after the
adoption was finalized, petitioners would have to submit an amended order that
contains the required language, as well as the written statement.” PM
602-0095 at 2.
This process for the recognition by USCIS of a
determination by the Central Authority of the child’s country of citizenship that
the child was no longer habitually resident there was based on the assumption
that the Central Authority in the country where the child has been habitually
resident (referred to by USCIS as the “Country of Origin,” or COO for short)
would cooperate in issuing a determination.
Practitioners and USCIS subsequently discovered, however, that the
Central Authorities of some of the Hague Adoption Convention countries in which
children had been habitually resident were
not willing to cooperate with the process.
As USCIS explained:
The guidance did not completely resolve the problem it was
intended to resolve. In some instances, the Central Authority in the COO either
cannot or will not take a position concerning whether the child is still
habitually resident in the COO. Thus, the adoptive parent(s) may be unable to
establish either that the Hague Adoption Convention did not apply to the
adoption, or that the adoption was completed in accordance with the Hague
Adoption Convention process.
PM
602-0095 at 2-3. It was “[i]n light
of this development” that USCIS provided additional guidance in PM
602-0095, which has been incorporated into Chapter 21.4(d)(5)(G) of the
Adjudicator’s Field Manual.
Under PM
602-0095, the previous policy regarding instances in which the Central
Authority of the COO has given a determination of lack of habitual residence
remains intact.
It remains USCIS policy that USCIS will determine that 8 CFR
204.2(d)(2)(vii)(F) does not preclude approval of a Form I-130 if the adoption
order (or amended order) expressly states that the Central Authority in the COO
advised the adopting court that the Central Authority was aware of the child’s
presence in the United States, and of the proposed adoption and did not
consider the child habitually resident in the COO. The written statement from
the Central Authority must accompany the Form I-130 and the adoption order (or
amended order).
PM
602-0095 at 3. However, under
certain circumstances, USCIS is now willing to proceed along these same lines without an affirmative statement
from the Central Authority of the COO:
In cases where the COO has a policy of not issuing
statements of habitual residence, or where the petitioners show that they have
attempted to obtain the statement of habitual residence from the COO for at
least 6 months with no response, and the child was not paroled into the United
States, USCIS will determine that 8 CFR 204.2(d)(2)(vii)(F) does not preclude
approval of a Form I-130 if:
1.
At the time the child entered the
United States, the purpose of the entry was for reasons other than adoption
(intent criteria);
2.
Prior to the U.S. domestic adoption,
the child actually resided in the United States for a substantial period of
time, establishing compelling ties in the United States, (actual residence
criteria); and
3.
Any adoption decree issued after
February 3, 2014, confirms that the COO Central Authority was notified of the
adoption proceeding in a manner satisfactory to the court and that the COO did
not object to the proceeding with the court within 120 days after receiving
notice or within a longer period of time determined by the court (notice
criteria).
PM
602-0095 at 3.
Pages 4 through 6 of PM
602-0095 list in detail the required evidence that should be provided in
order to establish these criteria to the satisfaction of USCIS, and the other
factors that USCIS may consider in regard to these criteria. In regard to the first criterion, intent at
time of entry, one particularly significant requirement is that of an “[a]ffidavit from the petitioning adoptive parent(s),” or “APs,” which USCIS indicates should include:
- ·
Description of child’s circumstances
prior to child’s entry to the United States (i.e., Where did the child live
and/or go to school? Who cared for the child? What events led to the child’s
travel to the United States? Reason for the child’s travel to the United States?).
- ·
List of individuals who have cared
for the child since his or her entry into the United States and the
relationship to the child.
- ·
Description of any contact the
adoptive parents had with the child, or any contact with the child’s birth
parents, or any adoption or child welfare agency or NGO (in the United States
or abroad) related to the child that took place:
(a)
before the child came to the United States; or,
(b)
after the child’s arrival but before a court placed the child with the AP(s).
- ·
Sworn statement from AP(s) stating
under penalty of perjury that on the date of the child’s entry into the United
States the AP(s) did not intend to adopt the child nor intend to circumvent the
Hague Adoption Convention procedures.
Other “[e]vidence
establishing the timeline and course of events that led to the child’s availability
for adoption by the adoptive parents” is also important. USCIS will consider a “court order containing
findings related to the child’s purpose for entering the United States, if
available”, as well as the results of checks of U.S. government systems regarding
entry on a visa or by the Visa Waiver Program.
PM
602-0095 at 4. “Evidence that the child was a ward of a U.S.
State or State court prior to the adoption” will be considered, and “should
establish that the child was a ward of a U.S. State or State court prior to the
adoption.” Id. at 4-5. USCIS will also consider as favorable certain
factors which would normally be of relevance in a Hague Adoption Convention
process, specifically:
-
Evidence of birth parent’s inability
to provide proper care for the child.
-
Evidence to establish one or both
birth parents are deceased.
- ·
Evidence to establish any living
birth parents freely consented to the proposed adoption OR the birth parents’
parental rights were fully and properly terminated.
Id. at
5. On the other hand, “[a]ny evidence
that suggests that the entry was for the purpose of adoption” will be
considered as an adverse favor, and “[a]
prior adoption in the COO by AP(s) in United States is a heavily weighted adverse
factor, but not a bar.” Id.
With respect to
the Actual Residence criterion, PM
602-0095 presumes that this criterion has been satisfied “if the child was physically present in the United States
for two years or more prior to the adoption.” Id. at 5. Otherwise, a
variety of evidence will be considered:
Absent such presumption, adjudicators must consider the
length of time that the child has spent in the United States prior to the
adoption and supporting evidence establishing the child’s actual residence and
compelling ties in the United States prior to the adoption.
O
Depending on the child’s age,
documentation from the time period prior to adoption
may include:
·
Evidence of continuous medical care
in the United States;
·
Statement from petitioners
explaining the child’s social interactions, including family and peer
relationships;
·
School records;
·
Registration for extra-curricular
activities;
·
Affidavits from knowledgeable
individuals (such as the child’s doctor or teacher, day care provider,
landlord, or neighbors) attesting to the child’s actual residence in the United
States;
and/or
·
Evidence that the child’s birth
parent, guardian, or caretaker resided in the United States.
Id. at
5. “A Court
order finding that the child actually resided in the United States for a substantial
period of time, establishing compelling ties in the United States prior to the
adoption” will be considered as well, as will “[e]vidence that the child was a
ward of the state or court prior to the adoption.” Id. “Evidence that the child lived outside of the
United States shortly before the adoption” will be counted as adverse evidence
in the Actual Residence determination.
For the third,
Notice criterion, what is required is, as one might expect, evidence that the
COO Central Authority has been notified of the objection and has declined to
object or has not responded for the required period. The “Required Evidence” according to PM
602-0095 for this purpose is:
o Evidence of notice to the COO Central Authority of the
pending adoption providing the Central Authority 120 days to object.
Notification should include the following language:
·
If you do not intend to object,
please notify the court.
·
If you require additional time
beyond 120 days, please notify the court.
o Evidence of the COO’s non-objection must be incorporated
into the language of the adoption order.
·
If AP(s) filed the Form I-130 with a
court order that lacks the COO non-objection language, USCIS may RFE for an
amended order. The petitioner(s) do not need to submit the actual statement
from the COO, however USCIS may issue an RFE requesting it if necessary.
The new process
set out in PM
602-0095 is a significant improvement on the former situation of adoptive
parents potentially facing a bar to petition approval if the COO’s Central
Authority chose not to get involved in the case, and for that USCIS should be
commended. However, it is not a complete
solution, for several reasons. The
current version of PM
602-0095 excludes children whom it ought to have helped, and is unavailable
to certain adoptive parents who have done nothing wrong and ought to be able to
avail themselves of its protections.
One notable anomaly in PM
602-0095 is that it applies only where “the child was not paroled into the
United States.” The parole exception is
presumably designed to avoid the scenario where prospective adoptive parents
apply for humanitarian parole for a child with the concealed purpose of
adopting that child. If this is the
thinking behind the exception, however, then it appears to be seriously
overbroad. Consider a scenario where a
child may have entered on advance parole in connection with a parent’s
application for adjustment of status, for example, years before being orphaned by
the death of the primary-applicant parent or abandoned by that parent. If that child, years after entry on advance
parole, is adopted by a U.S. citizen, and if the Central Authority in that
child’s country of origin will not cooperate with the determination of habitual
residence, refusing to allow approval of an I-130 petition for that child
serves no apparent policy purpose and appears pointlessly cruel.
The requirement
that “[a]t the time the child entered the
United States, the purpose of the entry was for reasons other than adoption,” PM
602-0095
at 3, also seems overbroad given the lack of an expressed time limitation. Logically, intent to adopt a child at the
time of the child’s entry into the United States should not be considered
problematic if the child’s country of origin, or the United States, were not
signatories to the Hague Convention at the time of the entry. If a child entered the United States before
April 1, 2008, for the purpose of adoption, but the adoption was finalized
after that time (thus potentially subjecting the child and adoptive parents to
the strictures of the Hague Adoption Convention), what purpose is served by
denying an I-130 petition filed for such a child who has established compelling
ties in the United States, and to whose adoption the COO Central Authority has
not objected after being given notice?
The requirement of
a sworn statement from the adoptive
parent or parents “stating under penalty of perjury that on the date of the
child’s entry into the United States [they] did not intend to adopt the child,”
PM
602-0095 at 4, is also overbroad in another way beyond the underlying substantive criterion: it
is in tension with the notion of dual intent which exists elsewhere in
immigration law. Earlier in PM
602-0095, as discussed above, the substantive criterion is said to be that “the
purpose of the entry was for reasons other than adoption.” Id. at 3. But just as the
law recognizes that an H-1B temporary worker may have both a bona fide intent
to enter temporarily as a nonimmigrant, and a latent intent to adjust status if
possible later on, USCIS should recognize that adults may have the dual intent
to provide shelter and temporary guardianship to, for example, an underage F-1
student, while simultaneously having the latent intent to adopt the child later
if circumstances develop in such a way that this seems advisable. (The author thanks Cyrus D. Mehta for inspiration
regarding the relevance of the dual-intent notion to this context.) To require adoptive parents to forswear
previous adoptive intent, rather than stating under penalty of perjury that
some other legitimate intent besides adoption existed on the date of the child’s
entry into the United States, ignores the possibility of dual intent and is in
that sense overbroad.
USCIS has offered PM
602-0095 as an interim memo for comment, with the comment period ending on
January 17, 2014, and so there may be time to fix these problems. The author of this blog post will likely
submit a comment regarding PM
602-0095 in line with the above observations. Readers who agree with these observations may
wish to consider doing so as well.
