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ADOPTION FACT SHEET
Immigrant Status and Adoption

Sources:
Synopsis:
Child Citizenship Act of 2000 )
Intercountry Adoptees receive citizenship via the courts - not INS. Dependent children eligible for special citizen status.
     (P.L. 106-395)
Intercountry Adoption Act
     (P.L .106-279)
U.S.C. 1101(a)(27)(J) (amended 1997)
Special Immigrant Status law (1990)
A.B. 538 (2001)


INTERCOUNTRY ADOPTIONS

Hague Convention on International Adoptions (1993)

The United States joined over 40 other nations in ratifying the Hague Convention on International Adoptions by passing the Intercountry Adoption Act (H.R. 2902). The principals of the Act are to stop international child trafficking; create a framework of basic ethical and professional guidelines for adoption and schedule regular opportunities to reconvene and improve the Act.

Citizenship for Intercountry Adoptees

The Child Citizenship Act of 2000 combines the legal process of finalization of an adoption with the status change in citizenship. Parents adopting a foreign born child via international adoptions procedures no longer need apply separately to the INS for citizenship for the child.

  1. When the finalization occurs in the country of origin, the child becomes a U.S. Citizen automatically upon entering the U.S.
  2. When the finalization occurs within the U.S., citizenship is granted the moment the adoption becomes final (In California see A.B. 538, Sept. 27, 2001).
  3. Adopted children who commit crimes may no longer be deported to their country of origin.

CITIZENSHIP FOR ABUSED AND NEGLECTED CHILDREN

Children who are court dependents or have suffered abuse from a U.S. Citizen and are not dependents are eligible to apply for citizenship.

Special Immigrant Juvenile Status (SIJS)

Child Protection Laws are designed to protect children regardless of their citizenship status. However, a child who leaves foster care as a young adult but who had never established U.S. citizenship faces possible deportation and certain difficulty in gainful employment. In response, congress created Special Immigrant Juvenile Status (SIJS).

SIJS is available to immigrant children who are made court dependents or who are legally placed under the custody of a state agency or department, primarily children in foster care. The child must be "deemed eligible" for long-term foster care. This requires that reunification is not offered or has failed. In effect, once a child in foster care has reached the permanency planning stage of the dependency proceeding. The final step is that the court must make a finding that it is not in the child's best interest to be returned to the home country.

An application may be made to INS on behalf of the child for SIJS status. (See attached sample order provided by the Immigrant Legal Resource Center.) This status will remain with the child after age 18 when they emancipate from foster care. This status might also be useful to an adopting family as a way to establish citizenship prior to adoption.

NON-DEPENDENT CHILDREN

A child who has suffered abuse by a U.S. Citizen but is able to live with a non-citizen parent, therefore avoiding foster care, may be eligible for citizenship under the Violence Against Women Act. If a U.S. Resident or lawful permanent resident inflicts harm on a child, the child is protected and may be granted citizenship. The intent is to avoid illegal immigrants failing to report domestic violence due to fear of deportation. Upon a finding by the court, the child and the illegal parent may be eligible for citizenship.

For further information contact: Helen Cavanaugh Stauts, Sierra Adoption Services, AAP Education and Advocacy Project, 1-800-227-8044.



Special Immigrant Juvenile Status Law, as amended effective November 26, 1997 (new provisions in italics), and Accompanying Conference Committee Report language
(prepared by the Immigrant Legal Resource Center)
SEC 113 Section 101(a)(27)(J) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)(J)) is amended to read as follows:


"(J) an immigrant who is present in the United States -
     (i) who has been declared dependent on a juvenile court located in the United States or whom such court has legally committed to, or placed under the custody of, an agency or department of a State, and who has been deemed by that court eligible for long-term foster care due to abuse, neglect, or abandonment;
     (ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien's best interest to be returned to the alien's or parent's previous country of nationality or country of last habitual residence; and
     (iii) whose case the Attorney General expressly consents to the dependency order serving as a precondition to the grant of special immigrant juvenile status;
Except that--
     (I) no juvenile court has jurisdiction to determine the custody status or placement of an alien inl the actual or constructive custody of the Attorney General unless the Attorney General specifically consents to such jurisdiction and
     (II) no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act "


Conference Committee Report

Sec 113 -- The conference agreement includes section 113, similar to language included in the Senate bill, that amends the Immigration and Nationality Act to address several problems encountered in the implementation of the special immigrant juvenile provision. The language has been modified in order to limit the beneficiaries of this provision to those juveniles for whom it was created, namely abandoned, neglected or abused children, by requiring the Attorney General to determine that neither the dependency order nor the administrative or judicial determination of the alien's best interest was sought primarily for the purpose of obtaining the status of an alien lawfully admitted for permanent residence, rather than for the purpose of obtaining relief from abuse or neglect. The conferees intend that the involvement of the Attorney General is for the purpose of determining special immigrant juvenile status and not for making determinations of dependency status. In addition, in order to preclude States juvenile courts from issuing dependency orders for juveniles in actual or constructive custody of the INS, the modified provision removes jurisdiction from juvenile courts to consider the custody status or placement of such aliens unless the Attorney General specifically consents to such jurisdiction. The House bill did not contain a provision on this matter.


[Sample juvenile court judge's order supporting Special Immigrant Juvenile Status application, December 1997]

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
JUVENILE COURT

In the matter of       )
)
)
)
a Minor       )
      No.
      ORDER REGARDING
      MINOR'S ELIGIBILITY FOR
      SPECIAL IMMIGRANT
      STATUS

___________________________________is appointed to represent the above-mentioned child and is directed to assure a timely application for special immigrant status is made to the Immigration and Naturalization Service and that all necessary information and supporting evidence is compiled.

The court reviewed the social study from the social worker and other supporting material on file, heard the arguments of counsel, and found the following:

( ) The minor was declared dependent on the Juvenile Court of the County of San Francisco on _____________

( ) The minor was deemed eligible by this Court for long-term foster care on ______________

( ) This court finds that it is not in the best interest of the minor to be returned to his/her or his/her parents' previous country of nationality or country of last habitual residence, _______________. It is in the minor's best interests to remain in the United States.

( ) The above findings and actions were made due to abuse and neglect of the minor.

( ) An application is to be made to the Immigration and Naturalization Service pursuant to 8 USC Section 1101(a)(27)(J).

A progress report is due on ________ from____________ in Department_____regarding the status of the application.

DATED___________________



_________________________________________
Judge/Commissioner/Referee of the Juvenile Court

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