The Plight of International Adoptees Exclusion in Law Causes Thousands of International Adoptees to Face Deportation

• Publication year: 2021

The Plight of International Adoptees Exclusion in Law Causes Thousands of International Adoptees to Face Deportation ¹

Mara Weisman ^*

Abstract: Due to an exclusion in current immigration law, between 18,000 to 49,000 legally, internationally adopted individuals face potential deportation. This article addresses a brief history of international adoption, an analysis of the Child Citizenship Act of 2000, identification of deportable offenses for noncitizens, case studies of affected individuals, a history of legal attempts to amend the law, and, finally, a proposed bill that seeks to resolve this injustice.

U.S. nationality bestows on an individual access to an array of fundamental rights: the right to remain in the United States, the right not to be detained as an alien, the right to travel under the protection of the United States, the right to vote, the right to fully participate in the social programs of the United States such as Social Security, and the right to obtain various licenses and permission to work in the United States. The sudden loss of U.S. nationality can leave a person vulnerable to removal, entails the loss of valuable economic rights, and potentially leaves the individual stateless. As harsh as such a consequence would be for a person who immigrated to the United States as an adult, it would be far harsher for an individual adopted as a child. A child born overseas and adopted by U.S. parents most likely has no family in their birth country, would likely not know the language or culture, and would likely not have any means of support there. Yet because of technical failures in securing the adopted child's citizenship and an exclusion in current immigration law, this is the unfortunate reality for thousands of individuals legally adopted from overseas. A number of these individuals have been removed from the United States, accused of violating their immigration status.

The hardship is compounded by the injustice of the result. When infants and young children were adopted, they had no hand either in choosing to come to the United States or in failing to perfect their papers. Often many children do not learn of their lack of citizenship until years later when applying for employment, a passport, or Social Security retirement benefits. Others do not become aware until they are convicted of a crime. Upon completing their sentences, these individuals are immediately placed in removal proceedings and then sent back to their countries of origin. Having left their birth countries as infants or young children, these individuals are suddenly thrown into a foreign world where they do not speak the language or possess any contacts who

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could offer guidance. "Deportation is like the death sentence to them," said Hellen Ko, a chief counselor at the government-run Korea Adoption Services.

There have been efforts to correct this. Congress passed the Child Citizenship Act of 2000 (CCA), granting automatic citizenship to most children adopted internationally by U.S. citizens. ² However, the CCA, which amended the Immigration Nationality Act (INA), ³ excluded adopted individuals who were 18 years old or older as of February 27, 2001, the time the law went into effect. ⁴ It is estimated that between 18,000 and 49,000 individuals currently fall into this category. ⁵ Subsequent legislation has been proposed, but no amendment or additional bill has been passed to remedy this exclusion. ⁶

This paper contains an analysis of the CCA, an identification of deportable offenses for noncitizens, several case studies of affected individuals, and a history of legal attempts to amend the law. Finally, the paper introduces a proposed amendment to the current law to correct the exclusion resulting from the CCA and offer a viable solution for international adoptees, along with some additional nonlegislative recommendations.

Prior Law and Its Consequences

Prior to 2000, INA § 320 stated:

(a) A child born outside of the United States, one of whose parents at the time of the child's birth was an alien and the other of whose parents then was and never thereafter ceased to be a citizen of the United States, shall, if such alien parent is naturalized, become a citizen of the United States, when (1) such naturalization takes place while such child is unmarried and under the age of eighteen years; and (2) such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of naturalization or thereafter and begins to reside permanently in the United States while under the age of eighteen years.
(b) Subsection (a) of this section shall apply to an adopted child only if the child is residing in the United States at the time of naturalization of such adoptive parent, in the custody of his adoptive parents, pursuant to a lawful admission for permanent residence.

Specifically, the statute required the non-U.S. citizen parent of the internationally adopted child to complete a naturalization process after the child arrived in the United States in order for the child to automatically attain citizenship. ⁷ However, not all such adoptive parents were able to complete their naturalization process, and consequently, many adopted children were unaware that they were not U.S. citizens. ⁸ According to Bert Ballard, an adoption studies scholar at Pepperdine University, "Hundreds of thousands

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of children have been adopted to the United States, and if even 1% of those [non U.S.-citizen parent] naturalizations never happened under pre-[CCA] guidelines, then that oversight affects literally thousands ofAmerican families." ⁹

This predicament directly conflicts with the United States' obligations under international law. The Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption "established a legal framework for the arrangement and formalization of intercountry adoptions for ratifying states." ¹⁰ Specifically, the Convention states, "In the case of an adoption having the effect of terminating a pre-existing legal parent-child relationship, the child shall enjoy in the receiving State, and in any other Contracting State where the adoption is recognised [sic], rights equivalent to those resulting from adoptions having this effect in each such State." ¹¹ Further, the Convention states, "The Central Authorities of both States shall take all necessary steps to obtain permission for the child to leave the State of origin and to enter and reside permanently in the receiving State." ¹² As a signatory to the Convention, which the United States ratified in 2008, the United States is obligated to fulfil the Convention's provisions. ¹³ In 2000, the United States passed the Intercountry Adoption Act of 2000 to recognize and implement the Hague Convention. ¹⁴ A purpose of the Act is "to protect the rights of, and prevent abuses against, children, birth families, and adoptive parents involved in adoptions (or prospective adoptions) subject to the Convention, and to ensure that such adoptions are in the children's best interests." ¹⁵ In spite of the provisions of the Convention and the Intercountry Adoption Act, the CCA was passed with an exclusion of thousands of adopted individuals from the rights of U.S. citizenship. ¹⁶

The Child Citizenship Act of 2000

The CCA amended the INA, attempting to provide a retroactive and proactive solution for internationally adopted children whose U.S. citizen parent had not completed the naturalization process in order for the child to gain citizenship. ¹⁷ After the CCA was adopted, most internationally adopted children would receive automatic citizenship upon the completion of their adoption. ¹⁸ INA § 320 now states:

(a) A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled: (1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization. (2) The child is under the age of eighteen years. (3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.

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(b) Subsection (a) [above] shall apply to a child adopted by a United States citizen parent if the child satisfies the requirements applicable to adopted children under [INA § 101(b)(1)].

According to the law, if a child's adoption by a U.S. citizen is completed abroad, either from a Hague Convention country or a non-Hague Convention country, the child automatically becomes a citizen upon entering the United States as long as they are under 18 years old and live in the United States with their adopted parent(s). ¹⁹ Children who enter the United States with the intention of adoption automatically become permanent residents and attain citizenship after their adoption is finalized, as long as they are under 18 years old and live in the United States with their adopted parent(s). ²⁰ The CCA also covers adopted children who were under 18 years old on February 27, 2001. ²¹ Overall, the CCA resulted in 75,000 adopted children becoming citizens as soon as the law went into effect. ²² However, the CCA intentionally excludes adopted individuals who were 18 years and older on February 27, 2001, and whose parent(s) had not completed their naturalization. ²³

This omission resulted from a political compromise to appease conservative lawmakers who did not want to extend citizenship to adults who had previously committed crimes. ²⁴ Consequently, the tens of thousands of individuals affected by this exclusion, who had been removed from their origin countries at a young age and raised in the United States, were classified as noncitizen aliens ²⁵ and could be subject to deportation for minor, nonviolent crimes. "Generally speaking, it ensured that adult adoptees were treated no differently than illegal aliens and terrorists." ²⁶

Consequences of the Current Law

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