By Debbie Smith
On July 9, 2012, the USCIS issued an interim memo on "Determining if an Adoption is Valid for Immigration and Nationality Act (INA) Purposes." The USCIS requested comments on the memo and indicated that the final language would be incorporated into the Adjudicator's Field Manual (AFM). While not discussing new interpretations of adoption and immigration law, the memo summarizes and gives examples of basic adoption/immigration law principles. This article will review the law summarized in the USCIS interim memo.
Adoption Benefits
A valid adoption confers many types of immigration benefits. A parent-child relationship established through an adoption can be the basis for visa petitions (I-130) filed on behalf of a child, adult son or daughter, or sibling. For example, an adopted child who is a U.S. citizen may file an I-130 and petition for his adoptive parent's other legal children because of the sibling relationship that was created through his adoption. In addition, a valid adoption can be the basis for a derivative refugee or asylee petition (Form I-730), derivative citizenship through a U.S. citizen parent (N-600), or U.S. citizenship under INA ยง 322 (N-600K).
Adoptions Must Create Legal Status
The essential element of a valid adoption for immigration purposes is that the adoption procedure creates a legal status comparable to that between a biological, legitimate child and his parent. The procedure, whether or not it is called "adoption," must satisfy a three-prong test:
- Create a legal, permanent parent-child relationship between a child and a person not already the child's legal parent
- Terminate the legal, parent-child relationship with the prior legal parent, and
- Create the new parent-child relationship and terminate the prior parent-child relationship under the law of the country or place granting the adoption.
This three-prong test applies in both non-Hague orphan cases and Hague Convention adoptions if the child has already been adopted abroad. However, an adoption that does not satisfy this test may still establish that the prospective adoptive parents have legal custody to bring the child to the U.S. for adoption.
The fact that the adopted child maintains contact with his birth parents, for example in "open adoptions," does not mean that the relationship with the biological parent was not terminated. The significant issue in cases where there remains ongoing contact with the biological parents is whether the adoptive parents exercise full parental control and authority over the child.
Validity of Foreign Adoptions
Although the law of the country of adoption determines the validity of the adoption, if there is credible evidence that the adoption was flawed in execution or unlawfully granted, the petitioner must demonstrate that the adoption is still valid. An adoption may be flawed in its execution if the court granting the adoption lacked jurisdiction, if the biological parents did not consent to the adoption, or if the biological parents did receive proper notice of the termination of parental rights. The validity of the adoption may also be in question if the adoption was granted due to official corruption, the use of fraud, or material misrepresentation. USCIS examiners are cautioned to consult with USCIS counsel before deciding not to recognize a foreign adoption that appears valid on its face.
Procedure Constituting a Foreign Adoption
The procedure that constitutes a valid adoption may include a court order, an administrative procedure, or a customary process. In the U.S. and many other countries, adoptions are authorized by a court order. Other countries utilize an administrative process for adoptions. In South Korea, adoptions involve adding the adopted child's name to the Family Registry. See Matter of Cho, 16 I&N Dec. 199 (BIA 1977). In Cambodia, after 2003, adoptions are accomplished through an administrative process.
In other countries, customary adoptions in addition to or in lieu of judicial or administrative adoptions may exist. See Kaho v. Ilchert, 765 F.2d 877 (9th Cir. 1985). However, the petitioner must establish that the customary adoption meets the three-prong test, particularly the requirements of the relevant customary law.
Foreign Law Recognition of Adoption
Adoption does not exist in countries that follow traditional Islamic law. For example, in the Republic of Yemen, a country that has adopted Sharia or Islamic law, adoptions are not recognized. See Matter of Mozeb, 15 I&N Dec. 430 (BIA 1975). In some countries composed of multi-ethnic or multi-religious populations, different laws govern adoption for the children of various ethnic and religious groups. For example, in India, an adoption valid for immigration purposes is not available in the Jammu and Kashmir regions of the country. Conversely, Hindus, Buddhists, Jains and Sikhs are able to obtain adoption deeds valid for immigration purposes because they are subject to Hindu family law under the 1956 Hindu Adoption and Maintenance Act.
Simple Adoption
"Simple adoption" is a form of adoption based on the Napoleonic codes and is present in some countries in Latin America, former French colonies, and other countries. In a "simple adoption," the child may still have some inheritance rights through the biological family and the adoption may be revoked in certain instances. A "simple adoption" may confer immigration benefits if it creates a permanent legal parent/child relationship and otherwise satisfies the three-prong test.
Termination of Adoption
The termination of an adoption is governed by the country or place where the termination occurred. Even if a termination of adoption is legally valid, it will not adversely impact immigration benefits obtained in the course of the adoption. See Matter of Xiu Hong Li, 21 I&N Dec. 13 (BIA 1995). An adoption that is legally terminated does not automatically reestablish a severed prior biological relationship without a legal process to re-form the previous relationship.
Foreign Adoption Law Evidence
The USCIS may request evidence of foreign law if the record does not clearly demonstrate that an adoption has created a permanent, legal parent-child relationship. Evidence of foreign laws can be obtained through the Library of Congress. The Department of State also has country-specific information on adoptions on the Department of State website and visa reciprocity tables at http://travel.state.gov/visa/fees/fees_5455.html?cid=9215.