International Adoption

ADOPTIONS AND ORPHANS

Attorney Grace Kennedy.

INTRODUCTION

Each year thousands of U.S. citizens adopt children from abroad and many families in other countries adopt U.S. children. Intercountry adoption is governed by both the laws of the country in which the child lives and the country in which the adoptive parents live. Under U.S. law, there are two distinct intercountry adoption processes: the Hague Convention process and the non-Hague Convention process. Which process your client will follow will depend on whether or not the other country involved is also a party to the Hague Convention on Protection of Children and Co-operation in Respect to Intercountry Adoptions ( the Hague Convention). [1]

In 2010, almost 9,000 children entered the United States as “adopted children.” 4,000 children were issued IR-3 visas; 3, 000 were issued IH-3 visas, almost 1, 500  were issued IR-4 visas with the remaining children being issued IH-4 visas. [2]

Section 101 (b) (1) of the Immigration and Nationality Act (“INA”) governs the issuance of immigrant visas to adopted children. A child who is adopted abroad while under the age of 16 and who has been in the legal custody, and has resided with, his or her adoptive parent(s) for at least two years may be the beneficiary of a an I-130, Petition for Alien Relative and receive an immigrant visa in the IR  -2 category. [3]

Most U.S. citizen prospective adoptive parents, however, are unable to live abroad to satisfy the two-year requirement. In such cases, children being adopted obtain an immigrant visa in one of two ways: one process applies to children in Hague Adoption Convention countries, and a separate process applies to children in countries that are not party to the Hague Adoption Convention. [4]

HAGUE ADOPTIONS

The Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Adoption Convention) protects children and their families against the risks of illegal, irregular, premature or ill-prepared adoptions abroad. This Convention, which also operates through a system of national Central Authorities, reinforces the UN Convention on the Rights of the Child (Art. 21) and seeks to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of, or traffic in children. Specifically, the Hague Convention recognizes the need for the establishment of legally binding standards which should be observed in connection with intercountry adoption (in what circumstances is such adoption appropriate; what law should govern the consents and consultations other than those with respect to the adopters?).

The Hague Convention sought to establish a system of supervision in order to ensure that these standards are observed (what can be done to prevent intercountry adoptions from occurring which are not in the interest of the child; how can children be protected from being adopted through fraud, duress or for monetary reward; should measures of control be imposed upon agencies active in the field of intercountry adoption, both in the countries where the children are born and in those to which they will travel?).[i][5]

Over 75 countries, including the United States, have signed, ratified and implemented the Hague Adoption Convention.[6] The Convention provides for a system of Central Authorities in all Contracting States and imposes certain obligations on them. Central Authority obligations include co-operation with one another through the exchange of general information concerning intercountry adoption, the elimination of any obstacles to the application of the Convention [7]    and a responsibility to deter all practices contrary to the objects of the Convention. The United States has designated The Office of Children’s Issues (CI), part of the Bureau of Consular Affairs at the U.S. Department of State, as its central authority.

When assessing a case involving an adopted child, the practitioner must first determine whether or not the Hague Adoption Convention applies. Is the child a citizen of a country that has implemented the Hague Adoption Convention? The State Department web-site is an excellent resource which can be used to determine convention citizenship.  If the child is not a citizen of a convention country, then the Hague rules do not apply and practitioners should analyze whether or not an I-130 immediate relative process is appropriate or in the alternative, an I-600, non-Hague orphan process is the best course of action.  If the child is indeed a resident of a Hague Adoption Country, and the adoption has occurred or will occur after April 1, 2008; then Hague Adoption Convention will apply.

Although a child may be a citizen of a Hague Country, the ultimate determination as to whether the Hague Adoption Convention applies are not depends on the “habitual residency” of the prospective adoptive parents and the adoptee. Although the Hague Adoption Convention fails to provide a definition of “habitual resident,” a definition may be found in 8 CFR§ 204.303 (a), which states that a US citizen adoptive parent is deemed to be habitually resident in the United States if (s)he is domiciled in the United States, but is living temporarily abroad or can establish by a preponderance of the evidence[8] that he or she will have established a domicile in the United State  on or before the child’s admission to the United States for permanent residence as a convention adoptee. As with other types of immigrant visa petitions, members of the military serving overseas continue to maintain residency in the United States.

Next, the practitioner must determine whether or not the child is an “habitual resident” of the United States.

Again CFR §204.303(b) provides guidance as to the habitual residency of the child. Pursuant to  CFR §204.303(b),  a child is considered to be a habitual resident of his country of citizenship unless the Central Authority determines that the child’s status in that country is sufficiently stable for it to exercise jurisdiction, the child may be considered “habitually resident” in that country. So for example, a Mexican child (Hague Convention Country), who was taken to  Argentina (Not a Hague Adoption Convention country) shortly after his birth and has resided there for fifteen years, never having returned to Mexico , could be considered to be a non-Hague Adoption Convention country- resulting in a non- Hague adoption immigration process.  Congress anticipated the removal of children to non-convention countries in order to circumvent the application of the Hague Adoption convention and has specifically regulated against it. Id.

Practitioners face challenges where the child is already present in the United States. If a child from a Hague Convention country is already in the United States, can the child be deemed to be “habitually resident” in the United States, so that the child can be adopted without

complying with the Hague Adoption Convention and the United States and Citizenship (“USCIS”) Hague interim rule? Unfortunately not. Under 8 CFR §204.2(d)(2)(vii)(F), a child who is present in the United States, but whose habitual residence was in a Hague Convention country other than the United States immediately before the child came to the United States, is still deemed to be habitually resident in the other Hague Convention country for purposes of the filing and approval of a visa petition based on the child’s adoption by a citizen who is habitually resident in the United States. USCIS will presume that the child’s adoption and immigration are governed by the Hague Adoption Convention, the Intercountry Adoption Act (“IIA”), and 8 CFR § 204 subpart C.

Since a child described in 8 CFR § 204.2(d)(2)(vii)(F), is still deemed to be habitually resident in the other Hague Convention country, a U.S. citizen who is habitually resident in the United States and who wants to adopt a child from a Hague Convention country must, generally, follow the Hague Adoption Convention process, even if the child is already in the United States. 8 CFR § 204.309(b)(4) specifically provides that a Form I-800A and Form I-800 can be filed, even if the child is in the United States, if the other Hague Convention country is willing to complete the Hague Adoption Convention process with respect to the child.

An I-130 process may be completed with the permission of the Central Authority of the child’s home country. 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 Convention country has filed with the court 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 Convention country had determined that the child was no longer habitually resident in that other Hague Convention country, USCIS will accept that determination and, if all the other requirements of section 101(b)(1)(E) of the Act are met, the Form I-130 may be approved.

The final criteria for determining whether the Hague Adoption Convention applies it the date of the adoption. The United States implemented the Hague Convention on April 1, 2008. Thus, if an adoption or an adoption process occurred before that date, even if the adoptive parents and the adoptee are both habitual residents of convention countries, an I-130, Petition for Alien Relative, process may be completed pursuant to INA § 101 (b) (1)(E). If an I-600A or I-600 was filed before April 1, 2008, then the emigration of the child to the United States may proceed under the terms of INA § 101 (b) (1) (F) and the terms of the Hague Adoption Convention do not apply.[9]

What happens if a petitioning parent has obtained a full and final adoption of a child in a Hague Convention Country prior to April 1, 2008, but did not file a Form I-600A or Form I-600 prior to April 1, 2008? A Form I-600A, (Application for Advance Processing of Orphan Petition) or Form I-600, (Petition to Classify Orphan as an Immediate Relative) may be filed on or after April 1, 2008, in this situation. The definitions for “Convention adoptee” and “Convention adoption” in 8 CFR § 204.301 state that an intercountry adoption is subject to the Hague Convention and the Hague Convention adoption rules only if the adoption occurs on or after April 1, 2008. The USCIS Hague interim rule, therefore, does not apply to a case in which the adoption was already completed before April 1, 2008. Therefore, a Form I-600A or I-600 may be filed after April 1, 2008, if the adoption was completed before April 1, 2008. If the prospective adoptive parents are suitable as adoptive parents and the child qualifies as an orphan, the Forms I-600A and I-600 may be approved and the child may immigrate under section 101(b)(1)(F) of the

Immigration and Nationality Act (INA).

In certain instances, a client may have obtained temporary or legal custody of a child in a Hague Convention country prior to April 1, 2008 in the form of a Guardianship Order or other legal instrument with the intention to adopt the child at a later date.  In such cases, the Hague Adoption Convention will apply to unless a Form I-600A or Form I-600 was filed before April 1, 2008.

Now that you have determined that the Hague Adoption Convention applies to your client, you must determine what you can do. The Convention generally requires that agencies and persons be accredited or approved to provide adoption services for intercountry adoptions when both countries involved are parties to the Convention. The Intercountry Adoption Act (IAA) was passed in October 2000, and serves as the implementing legislation for the United States.  The IAA names the U.S. Department of State as the Central Authority for the United States and the federal agency responsible for implementing the Convention.  The IAA requires agencies and persons providing adoption services in cases involving Convention countries to be accredited or approved.[ii][10] The State Department is required under the IAA to develop agreements with accrediting entities to conduct the accreditation and approval of adoption service providers. Section 404(a) (1) and (c) of the IIA provides civil and criminal penalties for anyone who engages in the unauthorized provision of “adoption services” without proper designation, accreditation and approval. What are “adoption services”? These include, but are not limited to:  Identifying a child for adoption and arranging an adoption;  Securing necessary consent to termination of parental rights and to adoption; Performing a background study on a child or a home study on a prospective adoptive parent and reporting on such a study; Making determinations of the best interests of a child and the appropriateness of adoptive placement for the child; Post-placement monitoring of a case until final adoption; and,  When made necessary by disruption before final adoption, assuming custody and providing child care or any other social service pending an alternative placement. However, an attorney who is not accredited may assist clients in determining whether or not the Hague Adoption Convention applies to their adoption and immigration process; assist in completion of immigration forms and applications and representation before USCIS. In order to perform any of the “adoption services” described above the attorney must obtain approval from the Council on Approval. [11]

The first step of a routine Hague adoption consular process is to obtain an adoption home study from a Hague accredited adoption agency. Upon completion of the home study, the petitioning parent must file an I-800 A, Application for Determination of Suitability to adopt from a convention country, at the Dallas Lockbox  [12] with appropriate supporting documentation with the address. Upon approval of the I-800A, the approval notice, home study and supporting documents are sent to the central authority of the country from which the family is planning to adopt.  That central authority will then match a child to the petitioning parents.  The petitioning family is then granted a two week period to both accept the match and proceed with the adoption or request to be matched with a different child. If the petitioning parents opt to accept the match, a Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative, is also is filed with the Dallas Lockbox. Upon provisional approval, the file is sent to the National Visa Center and from there to the consulate in the child’s home country. An immigrant visa application is submitted to the consulate on behalf of the child. The consular officer reviews the application and makes an admissibility determination.  If the consular officer approves the visa application, he or she notifies the Central Authority of the child’s country and requests that the adoptive parents are allowed to complete a final adoption in that country. Upon completion of the adoption process, the child may submit a DS-230, Application for Immigrant Visa and Alien Registration, together with the appropriate fees, the adoption decree, the child’s birth certificate, a medical exam and passport photographs to the consulate and an immigrant visa (IH-3) will be issued.

If the child is the subject of a full and final decree of adoption, and is granted an IH-3 immigrant visa; he or she will automatically become a US citizen upon admission to the United States under

the Child Citizenship Act of 2000.

If the adoptee is present in the United States, but is an habitual resident of a Hague Adoption Convention country, then the Hague Adoption Convention rules will still apply. 8 CFR §204.303(b).  Practitioners may come across situations where an adoption attorney, not well versed in the immigration laws of the United States, may finalize the adoption of a convention child without regard to the Hague Adoption Convention, expecting that child to adjust his or her status in the United States two years later under the terms of INA § 101 (b) (1) (E). Any such adjustment would be denied and could ultimately result in the instigation of removal proceedings.

In the event that a child is present in the United States, the adoptive parents could seek permission from the Central Authority of the child’s country of residence to complete the Hague process while the child is in the United States.  Or in the alternative request a statement from the Central Authority as described above 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 and therefore the terms of the Hague Adoption Convention do not apply. If successful, the petitioning parent could file an I-130, Petition for Alien Relative, upon completion of two years of legal custody and joint residency.

If this cannot be accomplished the child be have to return to his or her last country of habitual residency and the family could begin a Hague Adoption consular process as described above. Please note that any non-compliant custodial orders which were accomplished before the approval of the I-800 would have to be vacated.

Practitioners should be aware that the Department of State routinely issues Adoption Alerts and notices to caution American citizens about adopting from a certain country. Adoption Alerts may notify that a country has suspended adoptions or that the United States cannot process adoptions from that country. They may also inform prospective adoptive parents and adoption service providers about countries not compliant with the Hague Adoption Convention. The Department of State issues Adoption Notices to inform American citizen prospective adoptive parents and U.S. adoption service providers about important, on-the-ground developments in intercountry adoption from a specific country.

NON-HAGUE ADOTPION

The terms of INA § 101 (b) (1) (F) govern adoptions which occurred before April 1, 2008 or for children who are not habitually resident in Hague Adoption Convention countries. Once again, practitioners should begin by determining the date of the adoption and the country of residency of the child to ensure that the Hague Adoption Convention does not apply.

Adjudicating an orphan case requires the following steps:

1. Adopting parents establish their suitability for an international adoption, usually through an approved I-600A filed with CIS;
2. Adopting parents establish that a particular child may be classified as an orphan, as demonstrated by an approved I-600 petition and confirmed through a review of the orphan determination (I-604) – paperwork may be completed by a CIS or consular officer at a U.S. Embassy or Consulate overseas;
3. A visa application is filed on behalf of the child, providing all necessary documentation for production of the visa and demonstrating that no legal impediments to visa issuance apply – a consular officer will review the application at a U.S. Embassy or Consulate overseas;
4. If approvable, the visa is issued, and the child travels to the U.S. and obtains citizenship, either upon entry or upon completion of a full and final adoption in the U.S.

INA § 101 (b) (1) (F), allows a US citizen petitioner to obtain immediate relative permission for an orphan who is adopted prior to his or her 16^th birthday. The child must be an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption. As many counties do not issue final decrees of adoption, a guardianship order which grants to the adoptive parents permission to remove the child permanently from the jurisdiction of the issuing court for the purpose of emigration and adoption will suffice to obtain an immigrant visa for the child. 8 C.F.R.  §204.3. Such children will enter the United States as lawful permanent resident on IR 4 visas and must be adopted in the United States in order to gain citizenship by operation of law. Note that the United States adoption process for such children is not the domestication of a foreign decree but rather complete state adoption process.

8 C.F.R. § 204.3, provides further guidance on the categorization of orphans.

The most commonly sought classification is that of “abandoned child”. If the practitioner seeks to classify the child as an abandoned orphan, he or she must be able to prove thatthe parents have willfully forsaken all parental rights, obligations, and claims to the child, as well as all control over and possession of the child, without intending to transfer, or without transferring, these rights to any specific person(s). Abandonment must include not only the intention to surrender all parental rights, obligations, and claims to the child, and control over and possession of the child, but also the actual act of surrendering such rights, obligations, claims, control, and possession.

On occasion, a client may seek to place a child who is not an orphan temporarily in an orphanage with a pre- plan with the orphanage to release that child to a particular US citizen prospective adoptive parent.   Unfortunately, a relinquishment or release by the parents to the prospective adoptive parents or for a specific adoption does not constitute abandonment. Similarly, the relinquishment or release of the child by the parents to a third party for custodial care in anticipation of, or preparation for, adoption does not constitute abandonment unless the third party (such as a governmental agency, a court of competent jurisdiction, an adoption agency, or an orphanage) is authorized under the child welfare laws of the foreign-sending country to act in such a capacity. A child who is placed temporarily in an orphanage shall not be considered to be abandoned if the parents express an intention to retrieve the child, are contributing or attempting to contribute to the support of the child, or otherwise exhibit ongoing parental interest in the child.

Some countries lack the social structure to have established mechanisms whereby their orphanages are specifically authorized under the laws of that country to place children. Orphanages and children’s’ homes are run on a more informal basis by churches, charities or NGO’s. In cases such as these, the child may fall under one of the other definitions of orphans but will not be considered an abandoned child. For example, such children may be considered orphans because they have been “deserted”-meaning that the parents have willfully forsaken their child and have refused to carry out their parental rights and obligations and that, as a result, the child has become a ward of a competent authority in accordance with the laws of the foreign-sending country.

The nuances of the sending countries laws and traditions have always and will continue to present particular challenges in processing orphan cases. Most predominantly Muslim countries do not recognize the concept of adoption and generally do not issue adoption decrees. Although it may be possible to obtain a guardianship order; Judge’s are often reticent to state that the child may come to the “United States” for the purpose of “adoption”- either because it is not a recognized legal concept or because the word does not exist in the foreign language. Consular officers frequently deny I-600 petitions on the ground that the guardianship order fails to state that the child has express permission to come to the United States for the purpose of “adoption.” However, see FAM 42.21 N13.3, which recognizes that evidence of custody of the child for purposes of emigration and adoption will vary greatly depending on local laws and regulations governing child custody and concludes that the evidence does not have to include specific reference to the custody being granted for purposes of emigration and adoption, but should not prohibit the child’s ability to leave the country or otherwise limit the custody arrangements of the adoptive parents (i.e., guardianship for academic purposes, temporary custody, etc.).

In cases where there is a sole or surviving parent, the petitioner must prove that the biological parent is “incapable of providing proper care” to the child.” The fact that the parent is impoverished and has numerous other children is insufficient to show that the biological parent is incapable of providing care, unless a showing can be made that the poverty level in the sending country falls below the national average.

IMMEDIATE RELATIVE PETITIONS

Non- Hague Adoption Convention immediate relative petitions are governed by the terms of INA  § 101 (b) (1) (E).  A child may be classified as an immediate relative if there has been a full and final decree of adoption entered before the child’s 16^th birthday and the adoptive parent has had two years of residency with the child and two years of legal custody. The joint residency period may occur before or after the adoption. The residency period may run concurrently with the legal custody period. The legal custody requirement may be fulfilled from the time that the petitioning adoptive parent obtained legal custody through either a guardianship procedure or a final decree of adoption however; there must be a final decree of adoption in order for the child to qualify under this section of the statute. So for example, a child who is the subject of a permanent guardianship order from an Islamic country, can never be considered an immediate relative under this section of the law.

If the relative- child is from Hague Adoption Convention Country,  he or she will be eligible for classification as an immediate relative if he or she is under the age of sixteen at the time a petition is filed on the child’s behalf to accord a classification as an immediate relative under INA §201(b), has been adopted in a foreign state that is a party to the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, done at The Hague on May 29, 1993, or  is emigrating from such a foreign state to be adopted in the United States, by a USC and spouse jointly, or by an unmarried USC at least 25 years of age—if the child’s natural parents (or parent in the case of a child who has one sole or surviving parent because of the death or disappearance of, abandonment or desertion by, the other parent), or other persons or institutions that retain legal custody of the child, have freely given their written irrevocable consent to the termination of their legal relationship with the child,  and to the child’s emigration and adoption; and in the case of a child having two living natural parents, the natural parents are incapable of providing proper care for the child.81 Note that the child does not have to be an orphan in Hague Convention Countries thus opening the immediate relative classification to many more children.

CONCLUSION

“The child, for the full and harmonious development of his or her personality, should grow up in a family environment; in an atmosphere of happiness, love and understanding…Intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her State of origin.”

-Hague Adoption Convention, Preamble

The Immigration and Nationality Act provides various complex mechanisms whereby this goal can be achieved.  Without doubt, the role of legal counsel has become infinitely more demanding due to recent changes in the law.  In addition to perfecting their knowledge of Sections 101 (b) (1) (E); (F); and (G), practitioners should also be aware of other avenues of relief- such as Special Immigrant Juvenile Statues, Asylum, T and U visas, benefits under the Violence Against Women Act, and deferred action based on future eligibility for the DREAM Act.