USCIS LIBERALIZES CRITERIA FOR DETERMINING HABITUAL RESIDENCE IN SOME HAGUE CONVENTION ADOPTION CASES: A SMALL STEP, BUT AN IMPORTANT ONE
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),
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:
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:
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:
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.
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:
- · 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.
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:
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.
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.