Section by Section Explanation and Benefits of The Foreign Adopted Children Equality Act (FACE Act)

Following is the text of the legislative language of S.1359 and H.R. 3110, the Foreign Adopted Children Equality Act (FACE Act). This bill was introduced on June 25, 2009 by Senators Landrieu (D-LA) and Inhofe (R-OK) and on June 26, 2009 by Congresswoman Watson (D-CA) and Congressman Boozman (R-AR). Following each section of text, is a detailed explanation of the purpose of each provision and the resulting benefits to adopted children and their families should this legislation become law.

 

111TH CONGRESS
1ST SESSION

S. 1359
To provide United States citizenship for children adopted from outside the
United States, and for other purposes.

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IN THE SENATE OF THE UNITED STATES

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Ms. LANDRIEU (for herself and Mr. INHOFE) introduced the following bill;
which was read twice and referred to the Committee on
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A BILL

To provide United States citizenship for children adopted
from outside the United States, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Foreign Adopted Children Equality Act’’ or the ‘‘FACE Act’’.

SEC. 2. CITIZENSHIP FOR CHILDREN ADOPTED FROM OUT
SIDE THE UNITED STATES.

(a) IN GENERAL.—Subsection (b) of section 320 of the Immigration and Nationality Act (8 U.S.C. 1431) is amended to read as follows:

‘‘(b) CITIZENSHIP FOR CHILDREN ADOPTED FROM OUTSIDE THE UNITED STATES.—

‘‘(1) IN GENERAL.—A child born outside the United States automatically becomes a citizen of the United States if the Secretary of State is satisfied that all of the following conditions are met:

‘‘(A) The child is adopted by a parent who is a citizen of the United States.

‘‘(B) The child is younger than 18 years of age.

‘‘(C) It is determined that each adopting parent is eligible and suitable to adopt the child, including determining that the parent is able to support the child and has undergone an appropriate criminal background check.

“(D) Prior to the adoption, the child was an unmarried individual younger than 18 years of age—

‘‘(i)(I) whose biological parents (or parent, in the case of an individual who has one sole or surviving parent) or other person or institution that retains legal custody of the individual—

‘‘(aa) have freely given their written irrevocable consent to the termination of their legal relationship with the individual, and to the individual’s emigration and adoption and that such consent has not been induced by payment or compensation of any kind and has not been given prior to the birth of the individual;

‘‘(bb) are unable to provide proper care for the individual, as determined by the competent authority of the individual’s residence; or

‘‘(cc) have voluntarily relinquished the individual to the competent authorities pursuant to the law of the individual’s residence; or

‘‘(II) who, as determined by the competent authority of the individual’s residence—

‘‘(aa) has been abandoned or deserted by the individual’s biological parents or legal guardian; or

‘‘(bb) has been orphaned due to the death or disappearance of the individual’s biological parents or legal guardian; and

‘‘(ii) with respect to whom the Secretary of State—

‘‘(I) is satisfied that the proper care will be furnished the individual if admitted to the United States;

‘‘(II) is satisfied that the purpose of the adoption is to form a bona fide
parent-child relationship and that the parent-child relationship of the individual and the biological parents has been terminated (and in carrying out both obligations under this subparagraph, the Secretary of State, in consultation with the Secretary of Homeland Security, may consider whether there is a petition pending to confer immigrant status on one or both of the biological parents);

‘‘(III) is satisfied that there has been no inducement, financial or otherwise, offered to obtain the consent nor was it given before the birth of the individual; and

‘‘(IV) in consultation with the Secretary of Homeland Security, is satisfied that the individual is not a security risk.

The forgoing sections describe the conditions that have to be met before an adopted child receives automatic citizenship. The child has to be under the age of 18, adopted by a U.S. citizen who has been approved as eligible to adopt by the U.S. Government. The child must have been freely relinquished for adoption by any living parents who have also consented to the termination of their legal relationship to the child without any inducement, payment or compensation of any kind. The child is also eligible for adoption if the child has been abandoned or deserted by the birth parents as determined by government authorities in the child’s country of residence. Prior to citizenship attaching, the U.S. Secretary of State must determine that the child has met the stated criteria, will be properly cared for in the United States and that the adoption is a legitimate adoption intended to form a parent-child relationship and that there has been no inducement, financial or otherwise prior to the adoption or the birth of the child. In addition, the Secretary of State must consult with the Secretary of Homeland Security and determine that the child is not a security risk.

The major benefit of this new language is that once the U.S. Government makes a finding that all of the above requirements have been met, a child is eligible for automatic U.S. citizenship. Instead of applying and paying for an immigrant visa for their adopted child, adoptive parents would apply for a U.S. passport just as parents of biological children born abroad do now. This eliminates the burden of the additional costs and time associated with the visa process. In addition to saving the money it costs to apply for an immigration visa, this change would eliminate the costs of an immigrant medical exam and the costs of any additional travel to the closest American Embassy that issues immigrant visas.

Since under current law a foreign born adopted child is treated as an immigrant, the child has to have an immigration medical exam. Since the adopted child will no longer be applying for an immigrant visa, the medical exam will not be needed. Biological children of American citizens do not have to undergo a medical exam before they can enter the U.S. Neither should children adopted by American citizens. An additional benefit of this provision is the elimination of the immigration requirement that these adopted children be current on their vaccinations. In many of the countries from which Americans adopt, the children may have not been vaccinated and therefore are subjected to a large number of vaccinations in a time frame that is generally not recommended. Not only is this a cost issue, it is a safety issue. There is no way to be certain that the dosage given is appropriate for the age and size of the child or that the vaccine has been properly stored and has not expired. It is much safer for the child to wait and be vaccinated in the United States versus risking improper or ineffective vaccination overseas. Again, a biological child born to an American citizen abroad is not subjected to these vaccination requirements. Neither should foreign born adopted children of American citizens be treated differently.

Another cost that is eliminated by taking away the immigration visa is the travel costs that some families have to undertake to get an immigrant visa for their child. Not all embassies are able to issue immigrant visas so many families have to travel to another embassy, sometimes in another country, to apply for an immigrant visa for their child. However, all embassies are able to issue U.S. passports, so no additional travel time and expense would be necessary.

Additionally, this section of the bill raises the adoptable age from 16 to 18 years old. Current law only allows a child to be adopted up until age 16. However, if a child is under the age of 16 and has older siblings under the age of 18, those older siblings can be adopted as well. The proposed language in this legislation would eliminate the need to adopt a younger sibling in order to adopt a child up to the age of 18. It would make it possible to adopt teens up to age 18 without regard to whether they had siblings who had been previously adopted and the child could be adopted into the sibling’s family or any other family.

‘‘(2) CITIZENSHIP FROM BIRTH.—An individual who becomes a citizen of the United States pursuant to paragraph (1) shall be deemed to have been a citizen of the United States at birth and shall be issued a United States Consular Report of Birth.

When an American citizen gives birth to a baby abroad, that child is considered a citizen from birth (as long as the American parent is eligible to transmit their citizenship to their birth child). The citizen parent simply goes to the nearest embassy and shows the child’s birth certificate, their marriage license (if married), and proof of the parent’s American citizenship. Once these documents are verified, the baby is issued a U.S. passport and a U.S. Consular Report of Birth. Both the passport and Consular Report of Birth are deemed under the law as proof of U.S. citizenship. The Consular Report of Birth also acts as that baby’s birth certificate for the rest of their lives. The baby will not have a state issued birth certificate like babies born in the United States.

Being deemed a “citizen at birth” allows a foreign born adopted child to enjoy the same right to a passport and Consular Report of birth as a biological child. Under adoption law, once an adoption is finalized, adopted children are entitled to the same legal rights, duties and responsibilities as a “natural born” child.

This provision also provides for immediate proof of citizenship so right away, the child has documentary proof of citizenship and eliminates the need for a child who enters the U.S. on an IR-3 visa to wait months for a Certificate of Citizenship or for a child who enters on an IR-4 visa to wait the many months it takes to re-adopt in their state of residence before citizenship attaches. Then after the child has been re-adopted, the parents have to incur additional cost to file for a Certificate of Citizenship which can take six months to a year to arrive. In the interim, the parents and child have no documentary proof that the child is a citizen.

Under current law, if the adoptive parent of a child who enters the U.S. on an IR-4 visa fails to complete a re-adoption in their state of residence before the child turns 18, the child is no longer eligible for automatic citizenship. As a result, they can not get a U.S. passport, they can not serve in the military, and they can not attend college and pay in-state tuition or apply for scholarships. Even worse, if they get convicted of a misdemeanor, they can be deported to their country of origin and never allowed to re-enter the U.S. There are many cases of this happening to foreign adopted children whose parents through ignorance or neglect failed to take the necessary steps to acquire their child’s U.S. citizenship.

Nearly half of all foreign adopted children enter the U.S. on IR-4 visas. If immigrant visas are eliminated as proposed in this legislation, then the issues surrounding IR-4 visas can be eliminated. In addition, the adoptive parents will have in hand proof of their child’s citizenship when filing for a social security number and they will not have to wait for proof of citizenship to arrive in the mail.

“(3) SPECIAL RULE FOR ADOPTEES OVER 18.—

‘‘(A) IN GENERAL.—A person described in subparagraph (B) shall be deemed to have been a citizen of the United States at birth after the approval of an application filed within the United States or with a United States Embassy.

‘‘(B) PERSON DESCRIBED.—A person described in this clause is a person who—

‘‘(i) is older than 18 years of age;

‘‘(ii) was born outside the United States and was adopted by a parent who is a citizen of the United States before the date on which the person reached 18 years of age; and

‘‘(iii) was described in subparagraph (E), (F), or (G) of section 101(b)(1).

This section is included to address the problem of foreign adopted children whose adoptive parents failed to acquire U.S. citizenship for them prior to their 18th birthday. Before the Child Citizenship Act was passed, foreign adopted children had to be naturalized prior to their 18th birthday. Even after the CCA was passed, it only applied to adopted children who were under the age of 18 on or after February 27, 2001. Therefore, it did not grant automatic U.S. citizenship to any adopted child who had already turned 18. And now, children who enter on an IR-4 visa are vulnerable to their parents failing to take the necessary steps to ensure their citizenship is attained prior to their 18th birthday.

Failure to acquire U.S. citizenship can be very detrimental to the adopted child and can result in deportation should they be convicted of a misdemeanor. In fact, in one case a young man who was adopted as an infant from Brazil was deported to Brazil for a misdemeanor and was subsequently murdered. He had no knowledge of the language nor did he have any one to live with. His is not a solitary case. There are many other such instances. This provision would end these unintended consequences.

If a foreign adopted child has turned 18 without acquiring U.S. citizenship, this provision would allow that person to prove that he or she met the qualifications for automatic U.S. citizenship prior to their 18th birthday. It allows them to file an application to qualify them as an American citizen. This application, with accompanying proof, must be filed with the Department of State. Because some foreign adopted children have been deported and are barred from ever entering the U.S., this provision also allows for an application to filed at a U.S. Embassy abroad.

‘‘(4) NO LIABILITY FOR PRIOR TAXES.—An individual who becomes a citizen of the United States pursuant to paragraph (1) or (3) may not be liable for any taxes that the individual would have paid to the United States as a citizen of the United States prior to the date that the individual becomes such a citizen.’’.

This provision simply makes it clear that if an older foreign child (under the age of 18) is adopted by American citizens and becomes a “citizen at birth,” such child is not liable for any taxes that he or she may have owed the U.S. if he or she had been a citizen previous to actually acquiring citizenship.

(b) CONFORMING AMENDMENTS.—

(1) HEADING.—The heading of section 320 of the Immigration and Nationality Act (8 U.S.C. 1431) is amended to read as follows:

‘‘CHILDREN BORN OUTSIDE THE UNITED STATES; CONDITIONS UNDER WHICH CITIZENSHIP IS ACQUIRED’’.

(2) SECTION 301 OF THE IMMIGRATION AND NATIONALITY ACT.—Section 301 of the Immigration and Nationality Act (8 U.S.C. 1401) is amended—

(A) in subsection (g), by striking ‘‘and’’ at the end;

(B) in subsection (h), by striking the period at the end, inserting a semicolon and ‘‘and’’; and

(C) by adding at the end the following:

‘‘(i) a person deemed a citizen at birth pursuant to
16 section 320(b).’’.

This conforming amendment is actually much more substantive than it appears. Section 301 of the Immigration and Nationality Act (INA) defines who is a citizen of the United States at birth. This is the statutory provision that provides U.S. citizenship from birth to children born abroad to American citizens who are able to transmit their citizenship. Children born to Americans living anywhere overseas or employed by the U.S. government or U.S. military are considered citizens from birth because of this statutory language. Because these children are considered citizens from birth, they are given a U.S. passport and Consular Report of Birth and enter the U.S. as U.S. citizens. They have the rights of citizens from birth including being eligible to run for and be elected President of the United States.

To be eligible to run for President of the United States, the Constitution requires that a person must be a “natural born” citizen, be 35 years old, and have lived in the United States for 14 years. The term “natural born” has never been defined. However, most Constitutional scholars believe that a child born abroad to an American citizen who is deemed a citizen from birth is qualified to run for President. A minority of scholars argue that only a child born within the physical boundaries of the United States qualifies as a “natural born” citizen. This question has never been answered because no one has ever been elected President who was born outside the physical boundaries of the United States.

This question did arise during the last election because Senator McCain was born in the Panama Canal Zone, an area leased by the United States government. There is a special statutory provision that provides citizenship from birth to children born to employees of the Panama Canal Company or born to U.S. government employees working in the Panama Canal Zone. Had Senator McCain been elected President, the Constitutional question of whether any child born outside the physical boundaries of the United States is eligible to run for President would have had to been answered. So the question still remains open for debate.

However, until this question is decided, if foreign adopted children of American citizens are to be accorded equal rights as children born abroad to American citizens, then the proposed conforming amendment needs to be enacted. This amendment adds foreign born adopted children of American citizens to the category of children defined by the statute as an American citizen at birth. Upon enactment of this amendment, these adopted children would have the same legal right to run for President as a biological child.

(b) CLERICAL AMENDMENT.—The table of contents of the Immigration and Nationality Act is amended by striking the item relating to section 320 and inserting the following:

‘‘Sec. 320. Children born outside the United States; conditions under which citizenship acquired.’’.

SEC. 202. NONIMMIGRANT STATUS FOR CHILDREN BROUGHT TO THE UNITED STATES TO BE ADOPTED.

NONIMMIGRANT STATUS.—Paragraph (15) of section 101(a) of the immigration and Nationality Act (8 U.S.C. 1101(a)) is amended

(1) in subparagraph (U), by striking ‘‘or’’ at the end; and

(2) in subparagraph (V), by striking the period at the end and inserting a “; or”; and
(3) by adding at the end the following:
“(W) an individual brought to the United States as a child to be adopted by a citizen of the United States.”.

This section adds a new nonimmigrant visa category for foreign born children who are brought to the United States to be adopted by an American family. Since these children are not technically “immigrating” but are being brought here for the sole purpose of becoming a child of an American citizen, they should enter on a nonimmigrant visa versus an immigrant visa.

SEC. 4. APPEAL OF NOTICE OF INTENT TO DENY AN ADOPTION.

(a) REQUIREMENT TO PROVIDE OPPORTUNITY TO APPEAL.—If the Secretary of State determines that a covered individual is not eligible to be adopted by a citizen or national of the United States on the basis that the conditions described in subsection (c) are not met, the Secretary shall provide—

(1) a notice of intent to deny the adoption of the child to such citizen or national of the United States; and

(2) an opportunity for such citizen or national to appeal the determination.

(b) COVERED INDIVIDUAL DEFINED.—In this section, the term ‘‘covered individual’’ means an individual who—

(1) is younger than 18 years of age;

(2) was born in a foreign country; and

(3) is seeking to be adopted by a parent who is a citizen or national of the United States.

(c) CONDITIONS FOR ADOPTION.—The conditions described in this subsection are met if—

(1) the covered individual’s biological parents (or parent, in the case of an individual who has 1 sole or surviving parent) or other person or institution that retains legal custody of the covered individual—

(A) have freely given their written irrevocable consent to the termination of their legal relationship with the individual, and to the individual’s emigration and adoption and that such consent has not been induced by payment or compensation of any kind and has not been given prior to the birth of the individual;

(B) are unable to provide proper care for the individual, as determined by the competent authority in the country of the individual’s residence; or

(C) have voluntarily relinquished the individual to the competent authorities pursuant to the law of the country of the individual’s residence; or

(2) the covered individual, as determined by the competent authority in the country of the individual’s residence—

(A) has been abandoned or deserted by the individual’s biological parents or legal guardian; or

(B) has been orphaned due to the death or disappearance of the individual’s biological parents or legal guardian.

This section requires the Secretary of State to provide a notice of intent to deny the adoption of a child by a U.S. citizen to the adoptive parent/s and requires that the adoptive parent/s be provided an opportunity to appeal such a determination. This process already exists under current law. However, under current law, the determination of whether the child is eligible for adoption is made by U.S. Citizenship and Immigration Service (USCIS) instead of the Department of State. The process allows the adoptive family to counter any allegations that their adopted child does not meet the eligibility criteria for adoption by a U.S. citizen and to provide additional evidence that their child does meet the adoption criteria.

By moving the decision regarding the child’s eligibility for adoption by a U.S. citizen from USCIS to the Department of State (DOS), it eliminates the disagreements that sometimes occur between USCIS and DOS on the child’s adoption eligibility. Under the current process, USCIS determines if an adopted child meets the criteria and forwards that determination to the DOS. In some cases the DOS disagrees with this determination and refuses to issue an immigrant visa to the child. When this occurs, DOS provides USCIS with the reasons for their refusal to issue a visa to the child and USCIS either agrees or disagrees. If they agree with DOS, then USCIS issues a notice of intent to deny and the adoptive family is given a chance to provide additional evidence that the child is eligible for adoption. If USCIS agrees with the evidence provided, then they notify DOS of this decision and DOS usually issues a visa.

This bill seeks to simplify the process for adoptive families by having DOS make the determination of whether the child is eligible for adoption instead of the decision being made between two different government agencies. Also, under the provisions of this bill, DOS will be issuing citizenship documentation to the adopted child. Therefore, it is more practical for DOS to make the final determination that bestows U.S. citizenship upon that child than for USCIS to make that determination. The new process will eliminate the disagreements that sometimes occur between DOS and USCIS and will provide DOS with full confidence in the child’s eligibility for citizenship.

SEC. 203. RULE OF CONSTRUCTION.

Nothing in this Act or in any amendment made by this Act may be construed to—

(1) abrogate any citizenship rights provided to an adoptee by the adoptee’s country of origin; or

(2) nullify the facts of the adoptee’s birth history.

This is an extremely important rule of construction. Because language earlier in this proposed bill provides U.S. citizenship from birth to foreign adopted children, it needs to be made abundantly clear that such language is not intended, nor does it legally change any of the adopted child’s citizenship rights provided by their country of origin. Nor does it change any of the facts surrounding the adopted child’s birth.

The foreign born adopted child’s place of birth will always be recognized and any citizenship documents will reflect their true place of birth. For example, a Consular Report of Birth that is currently given to a child of an American citizen born abroad states the actual city and country of the child’s birth. It does not state that the child was born in the United States. The same would be true for a Consular Report of Birth issued under this proposed legislation for a foreign born adopted child.

Some have expressed concern that providing citizenship from birth to foreign born adopted children would in some way nullify the adoptee’s true birth history. The language in this amendment makes it clear that nothing in this bill can be construed to in any way deprive foreign adoptees of their original birth information. Some foreign adoptees, who have sought to explore their birth roots, have been dismayed at the lack of available information regarding their birth family and place of birth. Some even lack any documentation that reflects their country of origin. Nothing in this bill would in any way encourage or result in any destruction of documentation related to a foreign adoptee’s birth records or in any way diminish their birth heritage. In fact, the following Sense of Congress is intended to encourage foreign governments to provide as much birth information as permitted under law to the adoptive family for the benefit of the adopted child.

SEC. 204. SENSE OF CONGRESS.

It is the sense of Congress that the government of each foreign country from which children are adopted by citizens of the United States should provide documentation of the adopted children’s original birth history to the adoptive family in accordance with the laws of such country.

This provision is intended to encourage the governments of foreign countries, from which Americans adopt children, to provide the adoptive family with as much original birth documentation as permitted under the laws of that country. Some countries may not permit the release of birth parent information to adoptive families, but where it is allowed, such documentation should be provided to the adoptive parents.

Original documents should never be destroyed. The U.S. government can not require foreign governments to provide birth documentation if such provision would violate any laws of that country. But the U.S. can encourage foreign governments to retain original birth documents and provide them to the adoptive family as long as it is allowed under that country’s laws.