[House Report 106-852]
[From the U.S. Government Publishing Office]
106th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 106-852
======================================================================
ADOPTED ORPHANS CITIZENSHIP ACT
_______
September 14, 2000.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Smith of Texas, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 2883]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 2883) amending the Immigration and Nationality Act
to confer United States citizenship automatically and
retroactively on certain foreign-born children adopted by
citizens of the United States, having considered the same,
reports favorably thereon with amendments and recommends that
the bill as amended do pass.
TABLE OF CONTENTS
Page
The Amendment.............................................. 2
Purpose and Summary........................................ 3
Background and Need for the Legislation.................... 3
Hearings................................................... 5
Committee Consideration.................................... 6
Vote of the Committee...................................... 6
Committee Oversight Findings............................... 6
Committee on Government Reform Findings.................... 6
New Budget Authority and Tax Expenditures.................. 6
Congressional Budget Office Cost Estimate.................. 6
Constitutional Authority Statement......................... 8
Section-by-Section Analysis and Discussion................. 8
Agency Views............................................... 9
Changes in Existing Law Made by the Bill, as Reported...... 13
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Child Citizenship Act of 2000''.
SEC. 2. AUTOMATIC ACQUISITION OF CITIZENSHIP FOR CERTAIN CHILDREN BORN
OUTSIDE UNITED STATES.
(a) In General.--Section 320 of the Immigration and Nationality Act
(8 U.S.C. 1431) is amended to read as follows:
``children born outside united states; conditions under which
citizenship automatically acquired
``Sec. 320. (a) A child born outside of the United States
automatically becomes a citizen of the United States when all of the
following conditions have been fulfilled:
``(1) At least one parent of the child is a citizen of the
United States, whether by birth or naturalization.
``(2) The child is under the age of eighteen years.
``(3) The child is residing in the United States in the
legal and physical custody of the citizen parent pursuant to a
lawful admission for permanent residence.
``(b) Subsection (a) shall apply to a child adopted by a United
States citizen parent if the child satisfies the requirements for being
a child under subparagraph (E) or (F) of section 101(b)(1).''.
(b) Clerical Amendment.--The table of sections of such Act is
amended by striking the item relating to section 320 and inserting the
following:
``Sec. 320. Children born outside United States; conditions under which
citizenship automatically acquired.''.
SEC. 3. ACQUISITION OF CERTIFICATE OF NATURALIZATION FOR CERTAIN
CHILDREN BORN OUTSIDE UNITED STATES.
(a) In General.--Section 322 of the Immigration and Nationality Act
(8 U.S.C. 1433) is amended to read as follows:
``children born and residing outside united states; conditions for
acquiring certificate of naturalization
``Sec. 322. (a) A parent who is a citizen of the United States may
apply for naturalization on behalf of a child born outside of the
United States. The Attorney General shall issue a certificate of
naturalization to such parent upon proof, to the satisfaction of the
Attorney General, that the following conditions have been fulfilled:
``(1) At least one parent is a citizen of the United
States, whether by birth or naturalization.
``(2) The United States citizen parent--
``(A) has been physically present in the United
States or its outlying possessions for a period or
periods totaling not less than five years, at least two
of which were after attaining the age of fourteen
years; or
``(B) has a citizen parent who has been physically
present in the United States or its outlying
possessions for a period or periods totaling not less
than five years, at least two of which were after
attaining the age of fourteen years.
``(3) The child is under the age of eighteen years.
``(4) The child is residing outside of the United States in
the legal and physical custody of the citizen parent, is
temporarily present in the United States pursuant to a lawful
admission, and is maintaining such lawful status.
``(b) Upon approval of the application (which may be filed from
abroad) and, except as provided in the last sentence of section 337(a),
upon taking and subscribing before an officer of the Service within the
United States to the oath of allegiance required by this Act of an
applicant for naturalization, the child shall become a citizen of the
United States and shall be furnished by the Attorney General with a
certificate of naturalization.
``(c) Subsections (a) and (b) shall apply to a child adopted by a
United States citizen parent if the child satisfies the requirements
for being a child under subparagraph (E) or (F) of section
101(b)(1).''.
(b) Clerical Amendment.--The table of sections of such Act is
amended by striking the item relating to section 322 and inserting the
following:
``Sec. 322. Children born and residing outside United States;
conditions for acquiring certificate of naturalization.''.
SEC. 4. CONFORMING AMENDMENT.
Section 321 of the Immigration and Nationality Act (8 U.S.C. 1432)
and the item relating to section 321 in the table of sections are
repealed.
SEC. 5. EFFECTIVE DATE.
The amendments made by this Act shall take effect 120 days after
the date of the enactment of this Act.
Amend the title so as to read:
A bill to amend the Immigration and Nationality Act to
modify the provisions governing acquisition of citizenship by
children born outside of the United States.
Purpose and Summary
H.R. 2883 modifies the provisions of the Immigration and
Nationality Act governing acquisition of United States
citizenship by certain children born outside of the United
States, principally by providing citizenship automatically to
such children.
Background and Need for the Legislation
A. Current Law as to the Citizenship of Foreign-Born Children Who Are
the Natural-Born or Adopted Children of a U.S. Citizen(s)
Under current law, a child born abroad to two U.S. citizen
parents is considered a U.S. citizen at birth as long as one of
the parents has had a residence in the United States prior to
the birth of the child.\1\ In addition, under current law a
child born abroad to a U.S. citizen and an alien parent is also
considered a U.S. citizen at birth if the U.S. citizen parent
was, prior to the birth of the child, physically present in the
United States for a period or periods totaling not less than 5
years, at least two of which were after attaining the age of
14.\2\
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\1\ INA sec. 301(c). This residence requirement is longstanding.
The act of March 26, 1790, stipulated that ``The right of citizenship
shall not descend to persons whose fathers have never resided in the
United States.'' The requirement is designed to ``prevent the
establishment of successive generations of absentee citizens, who were
not identified and not familiar with American language, customs, and
traditions, and who might seek to avail themselves of the advantages of
American citizenship while evading its duties.'' Gordon, Mailman &
Yale-Loehr, 7 Immigration Law and Procedure sec. 93.02(5)(a) (2000).
And, as the Supreme Court stated in Weedin v. Chin Bow, citizenship
should not be extended to ``a generation whose birth, minority and
majority, whose education, and whose family life, have all been out of
the United States and naturally within the civilization and environment
of an alien country.'' 274 U.S. 657, 667 (1927).
\2\ INA sec. 301(g).
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However, under current law, if American parents adopt a
foreign child, or if a child born abroad to a U.S. citizen
parent(s) is not considered a citizen at birth, the parent can
obtain citizenship for the child only by seeking the child's
admission to the United States and applying for a certificate
of citizenship for the child to become a citizen. In order to
receive a certificate of citizenship, the following conditions
have to be met:
Lat least one parent is a citizen of the
United States, whether by birth or naturalization,
Lthe child is physically present in the United
States pursuant to a lawful admission,
Lthe child is under 18 and in the legal
custody of the citizen parent,
Lif the child was adopted, the child was
adopted before the child reached 16 in an adoption
meeting the requirements of the INA \3\, and
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\3\ The adoption must meet the requirements of sections
101(b)(1)(E) or (F) of the INA.
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Lif the citizen parent has not been physically
present in the United States for a period or periods
totaling not less than 5 years, at least two of which
were after attaining the age of 14, then 1) the child
is residing permanently in the United States with the
citizen parent, pursuant to a lawful admission for
permanent residence, or 2) a citizen parent of the
citizen parent has been physically present in the
United States or its outlying possessions for a period
or periods totaling not less than 5 years, at least two
of which were after attaining the age of 14.\4\
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\4\ INA sec. 322(a).
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The child must then take and subscribe to the oath of
allegiance required of an applicant for naturalization unless
the Attorney General waives this requirement upon finding that
the child is unable to understand the oath's meaning.\5\ The
child will then receive a certificate of naturalization.
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\5\ INA secs. 322(b), 337(a).
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The INA also provides two mechanisms for conferring
automatic citizenship on an alien child when an alien parent
naturalizes. First, if a child is born overseas to a U.S.
citizen parent and an alien parent, and the alien parent later
naturalizes, the child automatically becomes a citizen if two
conditions are met: (1) the parent's naturalization occurs when
the child is under 18 and (2) the child is residing in the
United States pursuant to a lawful admission for permanent
residence at the time of the parent's naturalization or
thereafter and begins to reside permanently in the United
States while under 18.\6\ This provision applies only to an
adopted child who is residing in the United States pursuant to
a lawful admission for permanent residence in the custody of
the adoptive parents at the time of naturalization of the
adoptive parent.\7\
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\6\ INA sec. 320(a).
\7\ INA sec. 320(b).
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Second, if both parents are aliens (or one is an alien and
the other has lost his or her U.S. citizenship), the child
automatically becomes a citizen when:
Lboth parents naturalize or the surviving
parent naturalizes or the parent with legal custody of
the child pursuant to a legal separation naturalizes or
the mother naturalizes if the child was born out of
wedlock (and paternity has not been established by
legitimization),
Lthe naturalization takes place when the child
is under 18, and
Lthe child is residing in the United States
pursuant to a lawful admission for permanent residence
at the time of the naturalization of the parent last
naturalized or thereafter begins to reside permanently
in the United States while under 18.\8\
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\8\ INA sec. 321(a). This provision only applies to an adopted
child who is residing in the United States pursuant to a lawful
admission for permanent residence in the custody of the adoptive
parent(s) at the time of naturalization of the adoptive parent(s). INA
sec. 321(b).
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Current law can beneficially be streamlined in a way that
will benefit families with foreign-born children while
``untangl[ing] the complex and duplicative provisions of the
Immigration and Nationality Act relating to citizenship of
children.'' \9\ Automatic citizenship for the foreign-born
children will spare parents the delays and expense of the
process they must currently follow to procure citizenship for
their children. This is a particular hardship for parents of
adopted children, who have already gone through the costly and
cumbersome adoption process with the INS and the State
Department. Automatic citizenship would also ensure that
children are not deprived of U.S. citizenship because their
parents did not realize they had to go through the certificate
of citizenship process after bringing the children to the
United States.
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\9\ Letter from Robert Raben, Assistant Attorney General, U.S.
Department of Justice, to Henry J. Hyde, chairman, House Judiciary
Committee, at 4 (July 18, 2000).
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B. H.R. 2883
The bill as introduced dealt solely with foreign-born
adopted children and provided that once brought to the United
States by their U.S. citizen parent(s) they would be considered
citizens at birth. The Justice Department and State Department
have expressed ``serious concerns'' with this approach, being
opposed to the ``retroactive'' granting of citizenship to
adopted children ``based entirely on events and conditions
occurring after birth.'' \10\ Both agencies have expressed the
view that a unilateral redefinition of citizenship at birth
would adversely affect U.S. relations with foreign governments
and would create inequities between adopted children and other
children of U.S. citizens born abroad.
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\10\ Letter from Robert Raben to Lamar Smith, chairman,
Subcommittee on Immigration and Claims, House Judiciary Committee (Nov.
22, 1999).
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The bill as amended in the Judiciary Committee addresses
the administration's concerns. The bill provides for automatic
citizenship for foreign-born adopted children when they enter
the United States--but not retroactively to birth. The bill
provides the same automatic citizenship upon entry for foreign-
born children of a U.S. citizen(s) who are not considered
citizens at birth under current law. And the bill utilizes this
same process for children receiving citizenship on the basis of
a parent(s) naturalizing.
The bill provides that a child will automatically become a
U.S. citizen when the following conditions are met:
Lat least one parent of the child is a citizen
of the United States, whether by birth or
naturalization,
Lthe child is under 18, and
Lthe child is residing in the United States in
the legal and physical custody of the citizen parent
pursuant to a lawful admission for permanent residence.
In the case of an adopted child, the adoption must meet the
requirements of current law contained in section 101(b)(1)(E)
and (F) of the INA.
The bill further provides that foreign-born children of
U.S. parents who are temporarily present in the United States
but intend to reside abroad will continue to be eligible to
apply for citizenship as they do under current law.
Hearings
The committee's Subcommittee on Immigration and Claims held
1 day of hearings on H.R. 2883 on February 17, 2000. Testimony
was received from Gerri Ratliff, Director of Business Process
and Reengineering Immigration Services Division and Acting
Director of the Office of Congressional Relations, U.S.
Immigration and Naturalization Service; Edward A. Betancourt,
Director of the Office of Policy Review and Interagency
Liaison, Overseas Citizens Services, Bureau of Consular
Affairs, U.S. State Department; Susan Soon-Keum Cox, Vice
President of Public Policy and External Affairs, Holt
International Children's Services; and Ms. Maureen Evans,
Executive Director, Joint Council on International Children's
Services.
Committee Consideration
On July 11, 2000, the Subcommittee on Immigration and
Claims met in open session and ordered favorably reported the
bill H.R. 2883 by a voice vote, a quorum being present. On July
26, 2000, the committee met in open session and ordered
favorably reported the bill H.R. 2883 with amendment by voice
vote, a quorum being present.
Vote of the Committee
The bill was ordered favorably reported by a voice vote.
One amendment was adopted by voice vote. The amendment, offered
by Mr. Delahunt, substituted the first four sections of H.R.
3667 for the text of the bill as introduced.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the committee reports that the
findings and recommendations of the committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform Findings
No findings or recommendations of the Committee on
Government Reform were received as referred to in clause
3(c)(4) of rule XIII of the Rules of the House of
Representatives.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House Rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the committee sets forth, with
respect to the H.R. 2883, the following estimate and comparison
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, August 11, 2000.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2883, the Child
Citizenship Act of 2000.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Dan L. Crippen, Director.
Enclosure
cc:
Honorable John Conyers Jr.
Ranking Democratic Member
H.R. 2883--Child Citizenship Act of 2000.
CBO estimates that enacting H.R. 2883 would have no
significant net effect on the federal budget. Because the
legislation would affect direct spending, pay-as-you-go
procedures would apply. However, we estimate that the
additional spending from enacting this legislation would be
less than $500,000 a year. H.R. 2883 contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act, but it could result in a very
small increase in the state share of benefits paid under
certain federal entitlement programs.
H.R. 2883 would grant automatic U.S. citizenship to certain
foreign-born children under the age of 18 who become permanent
U.S. residents. In order to qualify, one of the child's parents
would have to be a citizen and meet certain U.S. residence
requirements. Under current law, such children may choose to
become citizens by filing an application with the Immigration
and Naturalization Service (INS) for a certificate of
citizenship and paying a $160 fee (the fee is $125 for children
adopted overseas).
In fiscal year 1999, CBO estimates that INS collected
several million dollars in citizenship fees for foreign-born
children and spent roughly the same amount for related
administrative costs. Under H.R. 2883, it is not clear how the
provision of automatic citizenship would be documented or
whether these children would need or desire a certificate of
citizenship. CBO expects that fewer children would apply for
certificates of citizenship if the bill is enacted, because
certificates would no longer be necessary to obtain
citizenship. Thus, we estimate that enacting H.R. 2883 would
reduce both fee collections and spending by the INS. The
resulting net effect on outlays would be negligible.
Because enacting H.R. 2883 would automatically grant
citizenship to certain foreign-born children of U.S. citizens,
some of these children could receive certain public benefits
for which they would not have been eligible as legal permanent
residents. CBO estimates that direct spending on benefits for
such children would increase by less than $500,000 a year.
On November 4, 1999, CBO transmitted a cost estimate for S.
1485, the Adopted Orphans Citizenship Act, as passed by the
Senate on October 26, 1999. That legislation is similar to H.R.
2883 but applied only to certain foreign-born children who are
adopted. CBO estimated that the net effect on the federal
budget would be insignificant.
The CBO staff contact for this estimate is Mark Grabowicz,
who can be reached at 226-2860. This estimate was approved by
Robert A. Sunshine, Assistant Director for Budget Analysis.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the committee finds the authority for
this legislation in Article I, section 8, clause 4 of the
Constitution.
Section-by-Section Analysis and Discussion
Section 1. Short title
This act may be cited as the ``Child Citizenship Act of
2000.''
Section 2. Automatic acquisition of citizenship for certain children
born outside United States
Section 2(a) of the bill amends section 320 of the
Immigration and Nationality Act to provide certain children
born outside the United States with automatic U.S. citizenship.
Subsection 320(a) provides that a child meeting all of the
following conditions automatically becomes a U.S. citizen at
the time the conditions are fulfilled:
Lat least one parent of the child is a citizen
of the United States, whether by birth or
naturalization,
Lthe child is under 18, and
Lthe child is residing in the United States in
the legal and physical custody of the citizen parent
pursuant to a lawful admission for permanent residence.
Subsection 320(b) provides that subsection (a) shall apply
to a child adopted by a U.S. citizen parent if the child
satisfies the requirements for being a child under section
101(b)(1)(E) or (F).
Subsection 2(b) of the bill makes a clerical amendment.
Section 3. Acquisition of certificate of naturalization for certain
children born outside United States
Section 3 of the bill amends section 322 of the INA to
provide for the acquisition of certificates of naturalization
by certain children born outside of the United States.
Subsection 322(a) provides that a parent who is a citizen of
the United States may apply for naturalization on behalf of a
child born outside of the United States, and that the Attorney
General shall issue a certificate of naturalization to such
parent upon proof (to the satisfaction of the Attorney
General), that the following conditions have been fulfilled:
Lat least one parent is a citizen of the
United States, whether by birth or naturalization,
Lthe U.S. citizen parent (1) has been
physically present in the United States or its outlying
possessions for a period or periods totaling not less
than 5 years, at least two of which were after
attaining the age of 14, or (2) has a citizen parent
who has been physically present in the United States or
its outlying possessions for a period or periods
totaling not less than 5 years, at least two of which
were after attaining the age of 14,
Lthe child is under 18, and
Lthe child is residing outside of the United
States in the legal and physical custody of the citizen
parent, is temporarily present in the United States
pursuant to a lawful admission, and is maintaining such
lawful status.
Subsection 322(b) provides that upon approval of the
application (which may be filed from abroad) and upon taking
and subscribing before an officer of the Immigration and
Naturalization Service within the United States to the oath of
allegiance required by the INA of an applicant for
naturalization (which may be waived by the Attorney General if
in her opinion the child is unable to understand its meaning,
as provided in INA sec. 337(a)), the child shall become a
citizen of the United States and shall be furnished by the
Attorney General with a certificate of naturalization.
Subsection 322(c) provides that subsections (a) and (b)
shall apply to a child adopted by a U.S. citizen parent if the
child satisfies the requirements for being a child under INS
sec. 101(b)(1)(E) or (F).
Subsection 3(b) of the bill makes a clerical amendment.
Section 4. Conforming amendment
Section 4 of the bill repeals section 321 of the INA and
items relating to the section in the table of contents.
Section 5. Effective date
Section 5 of the bill provides that it shall take effect
120 days after the date of enactment.
Agency Views
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, July 18, 2000.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: This letter presents the views of the
Justice Department on HR 2883, the ``Adopted Orphans
Citizenship Act.'' The Department favors measures to streamline
the acquisition of United States citizenship by adopted
children of United States citizen parents. However, we oppose
HR 2883 as currently drafted because: (1) it is inconsistent
with long-standing, fundamental principles of United States
nationality law; and (2) it would inject confusion and
uncertainty into the law. The Department, in close consultation
with the Department of State, however, has prepared alternate
legislation for consideration, which we believe not only will
eliminate the current inequities in the acquisition of
citizenship by biological and adopted children but also
streamline the citizenship documentation process. The
legislation provides for automatic acquisition of citizenship
for those children who have been admitted for lawful permanent
residence. Much of this legislation has been introduced as HR
3667 by Representatives Delahunt and Gejdenson. As we stated in
testimony presented before the Subcommittee on Immigration and
Claims on February 17, 2000, we support the adoption provision
in HR 3667.
HR 2883 would make an alien child under the age of 18 years
adopted by a United States citizen parent meeting certain
physical presence requirements a national and citizen of the
United States at birth if the child was physically present in
the United States with the citizen parent, was lawfully
admitted for permanent residence, and sought documentation as a
United States citizen while under the age of 18. By placing
this provision in section 301 of the Immigration and
Nationality Act (``INA''), HR 2883 attempts to make individuals
retroactively citizens ``at birth'' based entirely on events
and conditions occurring after birth. In so doing, HR 2883
confuses the fundamental distinction between the acquisition of
citizenship at birth and the acquisition of citizenship through
conferral after birth, or ``naturalization.'' Section
101(a)(23) of the INA defines naturalization as ``the
conferring of nationality of a state upon a person after birth,
by any means whatsoever.''
A nation may legitimately claim the allegiance of an
individual in one of three ways: 1) birth on its soil (jus
soli); 2) birth to a citizen parent (jus sanguinis); or 3) a
voluntary choice after birth by a qualifying individual
(naturalization). Citizenship by birth is conferred
automatically and is not a matter of voluntary choice. HR 2883
attempts to confer citizenship by birth based on later,
voluntary actions by the alien or his adoptive parent. In
addition to contradicting the statutory definition of
naturalization, this would create a legal fiction in which the
alien was deemed always to have been a United States citizen.
However, this is not so. Neither at the time of the child's
birth abroad to alien parents nor at any other time prior to
the child's adoption by a United States citizen, did the United
States have a legitimate or supportable claim to the allegiance
of the child under the customary law of nations.
To claim by later decree that a child who undeniably was a
citizen of a foreign state by birth under all applicable fact
and law at that time, in fact was a United States citizen from
birth could have harmful consequences. Presumably, consistent
with HR 2883's provision that the citizenship claim of the
United States extends back to the time of the child's birth,
the foreign state could conclude that the child never was its
citizen. The possible implications of this conclusion--
depending on the nation--could reach issues such as possible
claims for reimbursement of educational, health care, and other
benefits provided to the child before adoption, based upon the
mistaken impression that the child was a citizen of that state,
particularly if such benefits are not available to that state's
citizens temporarily residing in the United States.
Alternatively, the foreign state could view a retroactive award
of citizenship as an action in derogation of its sovereignty,
which would not be conducive to cooperative relations with that
country in matters of international adoptions. In other words,
the retroactive revocation of the child's foreign citizenship
could unfortunately ensue as a result of the retroactive
conferral of United States citizenship at birth. In light of
the provisions of HR 2883, the United States would be in no
position to object to such an action on the part of the foreign
state.
The confusion HR 2883 would engender is not justified by
any meaningful advantage to foreign-born, adopted children who
otherwise would be naturalized upon fulfillment of the
necessary conditions. Naturalized citizens of the United States
stand upon an equal footing, in terms of their rights and
privileges, with native-born citizens. See, e.g., Schneider v.
Rusk, 377 U.S. 163, 165 (1964). The only exception to this
principle is the limitation of eligibility for the office of
President of the United States to ``natural born'' citizens in
Article II of the Constitution. This clause has never been
definitively interpreted by the Supreme Court, and HR 2883 does
not and cannot resolve questions as to its meaning, either.
In addition, HR 2883 may in certain instances favor
adopted, non-citizen children of United States citizens over
biological, non-citizen children of United States citizens
(i.e., in that certain adopted children will receive the
benefit of citizenship at birth, while biological children,
potentially of the same United States citizen parents, would
not). For example, if two United States citizen parents,
neither of whom has resided in the United States, bore a
biological child abroad, under current law that child would not
be a United States citizen at birth. The parents would have to
immigrate the child to the United States and apply for
naturalization before the child could become a United States
citizen. Suppose that this same couple, after the birth of the
biological child, took up residence in the United States for
five years and then adopted an alien child. Under HR 2883, the
adopted child would become a United States citizen at birth
upon attaining lawful permanent residence while under 18 years
of age, while the biological child could never be a citizen at
birth.
This retroactive conferral of citizenship on a class of
adopted children would also create unacceptable differences
between adopted children and other persons who acquire United
States citizenship through naturalization. In fact, the
proposed legislation would bestow greater benefits upon
children with no nexus to the United States at birth than those
currently enuring to children born abroad who, while having a
United States citizen parent at birth, do not acquire United
States citizenship pursuant to the principle of jus sanguinis.
For example, a child born overseas to a United States citizen
parent who is unable to transmit citizenship at birth in
accordance either with paragraphs (c), (d), (e), and (g) of
section 301 or with paragraphs (a) and (c) of section 309 of
the INA, can apply for a certificate of citizenship under
section 322 of the INA. Such citizenship does not relate back
to the child's birth and is deemed to have been obtained
through naturalization.
Similarly, a child born outside of the United States to an
alien parent and United States citizen parent who is not
capable of transmitting citizenship also conceivably can
naturalize as a United States citizen in accordance with
section 320 of the INA. Again, the individual acquires
citizenship via the naturalization process as set forth in
chapter 2 of title III of the INA. Such citizenship only
becomes effective at the time of the alien parent's
naturalization. We note that adopted children currently are
able to take advantage of the provisions of sections 320 and
322.
In November 1999, we forwarded to the Congress alternative
draft legislation that we believe untangles the complex and
duplicative provisions of the Immigration and Nationality Act
relating to citizenship of children. This legislation
eliminates inequities in the current law by creating a standard
set of conditions for foreign-born children of United States
citizens to acquire citizenship. This legislation also
eliminates in most instances the necessity for the Immigration
and Naturalization Service to adjudicate applications for
children adopted by U.S. citizen parents to become citizens of
the United States after having been admitted as lawful
permanent residents. This legislation provides for fair
treatment of all biological and adopted children in terms of
acquisition of United States citizenship. As we indicated
above, we support the adoption provision contained in HR 3667,
which is substantially similar to the Administration's
proposal.
In conclusion, the Department reiterates its support for
efforts to streamline the acquisition of United States
citizenship by adopted children of United States citizen
parents. However, HR 2883 would inject confusion and
uncertainty into the law. We would be glad to work with
Congress on alternative ways of achieving this goal.
Thank you for the opportunity to present our views. Please
do not hesitate to call upon us if we may be of further
assistance. The Office of Management and Budget has advised us
that, from the standpoint of the Administration's program,
there is no objection to the submission of this letter.
Sincerely,
Robert Raben, Assistant Attorney General.
U.S. Department of State,
Legislative Affairs,
Washington, DC, July 19, 2000.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: This letter presents the views of the
Department of State on H.R. 2883, the ``Adopted Orphans
Citizenship Act.'' We support the goals of the bill; however,
we oppose H.R. 2883 as currently drafted.
We believe the current procedures for naturalizing adopted
children pursuant to Title III of Chapter 2 of the Immigration
and Nationality Act (INA) can and should be simplified. In this
respect, the Department supports the language and approach
detailed in H.R. 3667, the ``Child Citizenship Act of 2000,''
introduced by Representatives William Delahunt and Sam
Gejdenson which tracks legislation forwarded to the Congress by
the Department of Justice in November, 1999.
While we strongly advocate diminishing the procedural
burdens placed on adoptive parents in conjunction with securing
U.S. citizenship for their children, we believe that any
measures toward this end should be taken in the context of
Chapter 2, ``Nationality Through Naturalization'' of Title III.
These changes should not be incorporated in Chapter 1,
``Nationality At Birth And By Collective Naturalization'' of
this same title. Citizenship at birth can be conferred whether
by birth in the United States (jus soli) or through birth to a
U.S. citizen parent or parents able to transmit citizenship
(jus sanguinis). According to Section 101(a)(23) of the INA,
naturalization is defined as the acquisition of citizenship
after birth by any means.
We continue to be of the view that to confer citizenship at
birth upon an adoptive child born overseas, as proposed in H.R.
2883, is to engage in a legal and factual fiction that would
create unacceptable inequities between adopted children and
other persons who acquire U.S. citizenship through
naturalization. Citizenship at birth would bestow greater
benefits upon children with no nexus to the U.S. at birth than
to certain children born abroad who, while having a U.S.
citizen parent at birth, do not automatically acquire U.S.
citizenship from that parent.
H.R. 2883 would confer U.S. citizenship retroactive to the
birth of a child who may have no ties to the United States or
any of its citizens at the time of birth. By sharp contrast,
under current law, a biological child born to a U.S. citizen
parent who lacked the requisite period of physical presence in
the United States does not acquire U.S. citizenship at birth
despite the existence of the biological relationship to a U.S.
citizen at the moment of birth. Moreover, if the biological
child is able to qualify for U.S. citizenship subsequent to
birth, the conferral of U.S. citizenship is not retroactive to
birth but occurs as of the date he or she fills the statutory
qualifications of Section 320, 321, or 322 of the INA. Thus,
under H.R. 2883, a child with no connection to the U.S. at
birth could acquire U.S. citizenship retroactive to birth,
whereas a child whose connection to the U.S. exists at birth,
but is deemed insufficient by law, cannot.
An additional concern is that a foreign state might view a
retroactive award of citizenship as a derogation of its
sovereignty, which could cause a lack of cooperation in
international adoption.
In conclusion, the Department would be pleased to work with
the Congress to ensure the enactment of legislation to
facilitate and simplify the naturalization of foreign-born
adopted children in a nondiscriminatory manner along the lines
proposed by the Department of Justice and Representatives
Delahunt and Gejdenson.
Thank you for your consideration of this matter and
permitting us to offer our views.
Sincerely,
Barbara Larkin, Assistant Secretary.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
IMMIGRATION AND NATIONALITY ACT
* * * * * * *
Title III--Nationality and Naturalization
* * * * * * *
chapter 2--nationality through naturalization
Sec. 310. Naturalization authority.
* * * * * * *
[Sec. 320. Children born outside of United States of one alien and one
citizen parent.]
Sec. 320. Children born outside United States; conditions under which
citizenship automatically acquired.
[Sec. 321. Children born outside of United States of alien parent.
[Sec. 322. Child born outside the United States; application for
certificate of citizenship requirements.]
Sec. 322. Children born and residing outside United States; conditions
for acquiring certificate of naturalization.
* * * * * * *
TITLE III--NATIONALITY AND NATURALIZATION
* * * * * * *
Chapter 2--Nationality Through Naturalization
* * * * * * *
[child born outside of united states of one alien and one citizen
parent at time of birth; conditions under which citizenship
automatically acquired
[Sec. 320. (a) A child born outside of the United States,
one of whose parents at the time of the child's birth was an
alien and the other of whose parents then was and never
thereafter ceased to be a citizen of the United States, shall,
if such alien parent is naturalized, become a citizen of the
United States, when--
[(1) such naturalization takes place while such
child is under the age of eighteen years; and
[(2) such child is residing in the United States
pursuant to a lawful admission for permanent residence
at the time of naturalization or thereafter and begins
to reside permanently in the United States while under
the age of eighteen years.
[(b) Subsection (a) of this section shall apply to an
adopted child only if the child is residing in the United
States at the time of naturalization of such adoptive parent,
in the custody of his adoptive parents, pursuant to a lawful
admission for permanent residence.]
children born outside united states; conditions under which citizenship
automatically acquired
Sec. 320. (a) A child born outside of the United States
automatically becomes a citizen of the United States when all
of the following conditions have been fulfilled:
(1) At least one parent of the child is a citizen
of the United States, whether by birth or
naturalization.
(2) The child is under the age of eighteen years.
(3) The child is residing in the United States in
the legal and physical custody of the citizen parent
pursuant to a lawful admission for permanent residence.
(b) Subsection (a) shall apply to a child adopted by a
United States citizen parent if the child satisfies the
requirements for being a child under subparagraph (E) or (F) of
section 101(b)(1).
[child born outside of united states of alien parent; conditions under
which citizenship automatically acquired
[Sec. 321. (a) A child born outside of the United States of
alien parents, or of an alien parent and a citizen parent who
has subsequently lost citizenship of the United States, becomes
a citizen of the United States upon fulfillment of the
following conditions:
[(1) The naturalization of both parents; or
[(2) The naturalization of the surviving parent if one of
the parents is deceased; or
[(3) The naturalization of the parent having legal custody
of the child when there has been a legal separation of the
parents or the naturalization of the mother if the child was
born out of wedlock and the paternity of the child has not been
established by legitimation; and if
[(4) Such naturalization takes place while such child is
under the age of eighteen years; and
[(5) Such child is residing in the United States pursuant
to a lawful admission for permanent residence at the time of
the naturalization of the parent last naturalized under clause
(1) of this subsection, or the parent naturalized under clause
(2) or (3) of this subsection, or thereafter begins to reside
permanently in the United States while under the age of
eighteen years.
[(b) Subsection (a) of this section shall apply to an
adopted child only if the child is residing in the United
States at the time of naturalization of such adoptive parent or
parents, in the custody of his adoptive parent or parents,
pursuant to a lawful admission for permanent residence.
[child born outside the united states; application for certificate of
citizenship requirements
[Sec. 322. (a) A parent who is a citizen of the United
States may apply to the Attorney General for a certificate of
citizenship on behalf of a child born outside the United
States. The Attorney General shall issue such a certificate of
citizenship upon proof to the satisfaction of the Attorney
General that the following conditions have been fulfilled:
[(1) At least one parent is a citizen of the United
States, whether by birth or naturalization.
[(2) The child is physically present in the United
States pursuant to a lawful admission.
[(3) The child is under the age of 18 years and in
the legal custody of the citizen parent.
[(4) If the citizen parent is an adoptive parent of
the child, the child was adopted by the citizen parent
before the child reached the age of 16 years (except to
the extent that the child is described in clause (ii)
of subparagraph (E) or (F) of section 101(b)(1)) and
the child meets the requirements for being a child
under either of such subparagraphs.
[(5) If the citizen parent has not been physically
present in the United States or its outlying
possessions for a period or periods totaling not less
than five years, at least two of which were after
attaining the age of fourteen years--
[(A) the child is residing permanently in
the United States with the citizen parent,
pursuant to a lawful admission for permanent
residence, or
[(B) a citizen parent of the citizen parent
has been physically present in the United
States or its outlying possessions for a period
or periods totaling not less than five years,
at least two of which were after attaining the
age of fourteen years.
[(b) Upon approval of the application (which may be filed
abroad) and, except as provided in the last sentence of section
337(a), upon taking and subscribing before an officer of the
Service within the United States to the oath of allegiance
required by this Act of an applicant for naturalization, the
child shall become a citizen of the United States and shall be
furnished by the Attorney General with a certificate of
citizenship.
[(c) Subsection (a) of this section shall apply to the
adopted child of a United States citizen adoptive parent if the
conditions specified in such subsection have been fulfilled.]
children born and residing outside united states; conditions for
acquiring certificate of naturalization
Sec. 322. (a) A parent who is a citizen of the United
States may apply for naturalization on behalf of a child born
outside of the United States. The Attorney General shall issue
a certificate of naturalization to such parent upon proof, to
the satisfaction of the Attorney General, that the following
conditions have been fulfilled:
(1) At least one parent is a citizen of the United
States, whether by birth or naturalization.
(2) The United States citizen parent--
(A) has been physically present in the
United States or its outlying possessions for a
period or periods totaling not less than five
years, at least two of which were after
attaining the age of fourteen years; or
(B) has a citizen parent who has been
physically present in the United States or its
outlying possessions for a period or periods
totaling not less than five years, at least two
of which were after attaining the age of
fourteen years.
(3) The child is under the age of eighteen years.
(4) The child is residing outside of the United
States in the legal and physical custody of the citizen
parent, is temporarily present in the United States
pursuant to a lawful admission, and is maintaining such
lawful status.
(b) Upon approval of the application (which may be filed
from abroad) and, except as provided in the last sentence of
section 337(a), upon taking and subscribing before an officer
of the Service within the United States to the oath of
allegiance required by this Act of an applicant for
naturalization, the child shall become a citizen of the United
States and shall be furnished by the Attorney General with a
certificate of naturalization.
(c) Subsections (a) and (b) shall apply to a child adopted
by a United States citizen parent if the child satisfies the
requirements for being a child under subparagraph (E) or (F) of
section 101(b)(1).
* * * * * * *