\ afm \ Adjudicator's Field Manual - Redacted Public Version \ Chapter 21 Family-based Petitions and Applications. \ 21.15 Self Petitions by Abused Parents of U.S. Citizens
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Self Petitions by Parents of U.S. Citizens
(a) General. If the requirements of INA § 101(b)(1)(E) have been met, a person adopted while under the age of 16 (or, in certain cases, under the age of 18) is the child, adult son or adult daughter of the adopting parent(s) - not the birth parent(s) - for immigration purposes. Similarly, the adopted person is the sibling of the adoptive parent's other legal children, but not of the birth parent's children. See
Matter of Li
, 20 I&N Dec. 700 (BIA 1993)
. The adoptive parent-child relationship is valid for all relevant immigration benefit requests under the INA, including, but not limited to:
The validity of an adoption is relevant to adjudication of both the Form I-600 (orphan petition) and the Form I-800 (Hague Convention adoption petition). Although both orphans and Hague Convention adoptees often come to the United States after they are adopted overseas, both INA §§ 101(b)(1)(F) and (G) allow children to come to the United States before they are actually adopted. Chapters 21.5 and 21.6 of this AFM state that an adoption that does not actually qualify as an adoption for immigration purposes may nonetheless establish guardianship for emigration and adoption under the laws of the sending country. Such a guardianship may support approval of a Form I-600 or Form I 800 for a child coming to the United States to be adopted, provided all other requirements are met.
- Form I-130 (whether filed for a child, adult son or daughter, or sibling),
- Form I-730,
- Form N-600,
- Form N-600K, or
- A claim to eligibility for an immigrant visa as a derivative under INA 203(d).
(b) Validity of an adoption and the three-prong test. Validity of an adoption and the three-prong test. Though the INA does not define "adopted" or "adoption," BIA precedent establishes that an adoption must create "a legal status comparable to that of a natural legitimate child" between the adopted and the adopter.
Matter of Mozeb, 15 I&N Dec. 430 (BIA 1975)
. Thus, it does not matter what name anyone gives to an adoption. For immigration purposes, what matters is whether or not the order determining the custody or care of a child satisfies the three-prong test:
The law in some jurisdictions allows a step-parent to adopt the children of his or her spouse, if the legal parent-child relationship with the other legal/biological parent has been terminated by death or legal action. The continuing legal parent-child relationship between the child and the adopting step-parent's spouse does not preclude recognition of the adoption. The legal custody and joint residence requirements of INA § 101(b)(1)(E), however, must be met by the adoptive step-parent.
- It creates a legal permanent parent-child relationship between a child and someone who is not already the child's legal parent, and
- It terminates the legal parent-child relationship with the prior legal parent, and
- It does the above under the law of the country or place granting the adoption.
A step-parent does not actually need to adopt his or her step-child in order for a Form I 130 or Form I-730 to be approved. If the parent and step-parent married before the child's 18th birthday, the step-parent/step-child relationship can be a basis for approving a Form I-130 or a Form I-730. See INA § 101(b)(1)(B).
Though a child can immigrate (or adjust status) based on the step-parent/step-child relationship, he or she cannot derive U.S. citizenship based on that relationship. A step-child who has been adopted by his or her U.S. citizen step-parent may derive citizenship based on the adoptive relationship, if he or she otherwise qualifies under the INA.
The mere fact of ongoing contact with the birth parents (as in "open adoptions") does not mean that the legal parent-child relationship with the prior legal parent was not terminated. The adoptive parents, rather than the prior parents, must be exercising full parental authority over the child as a result of the adoption.
(c) Determining the validity and effect of a foreign "adoption." The law of the country of adoption determines the validity of the adoption. See Matter of T-, 6 I&N Dec. 634 (1955). Generally speaking, you should accept the adoption decree at face value. You may properly question the validity of the adoption; however, if there is credible and probative evidence that:
- The adoption was flawed in its execution, such as when the court (or other official body) granting the adoption appears to have lacked jurisdiction over the adoption, or when the prior parents did not consent to the adoption or were not given proper notice of the termination of parental rights, or
- The adoption was granted due to official corruption or the use of fraud or material misrepresentation.
(1) Adoption as judicial or administrative act. One issue clearly governed by foreign law is what official act constitutes an adoption in another country. In many countries, as in the United States, adoption is a judicial process. Thus, the evidence of the adoption is a court order. In other countries, adoption is an administrative, not a judicial, process. For example, in South Korea, adoption is accomplished by adding the adopted child to one's Family Registry. See
Matter of Cho
, 16 I&N Dec. 188 (BIA 1977)
. In 2003, Cambodia informed other countries through a diplomatic note that Cambodian courts do not have jurisdiction to grant adoption to non-Cambodians. Cambodian adoptions are completed through an administrative process. Finally, as noted in paragraph (c)(4) of this chapter, in some countries, a legal adoption can be accomplished according to legal custom, without a court or administrative order.
(2) Whether adoption actually exists in a given country. Another issue governed by the foreign law is whether or not a legal parent-child relationship can be created by adoption.
(A) In countries that follow traditional Islamic law, "adoption" in the sense required for immigration purposes does not exist. See, Matter of Mozeb, supra; and
Matter of Ashree, Ahmed and Ahmed, 14 I&N Dec. 305 (BIA 1973). Therefore, a Kafala order issued by a country that follows traditional Islamic law will not qualify as an adoption.
(B) In some multi-ethnic or multi-religious countries, the personal status laws for each ethnic or religious group governs adoptions. In such countries, different bodies of law govern adoption for different children, even within the same neighborhood. An adoption valid for immigration purposes may not be available for a Muslim child under Islamic family law, but may be available for the child next door under Jewish or Christian family law.
(C) India is an example of a country with complex multiple adoption laws. Traditionally, under the 1956 Hindu Adoption and Maintenance Act, adoption by adoption deed is available in India (other than in the state of Jammu and Kashmir) only to Hindus, Buddhists, Jains, and Sikhs, and others subject to Hindu family law or custom. For others, the 1890 Guardians and Wards Act apply (other than in Jammu and Kashmir). But the Guardians and Wards Act does not provide for adoption for those not subject to Hindu family law or custom, only guardianship. Thus, a court order under the Guardians and Wards Act is not valid as an adoption for immigration purposes. Effective August 22, 2006, however, India amended the Juvenile Justice Act of 2000. Adoptions under the Juvenile Justice Act permanently separate children from their prior parents and make them the "legitimate child" of the adoptive parents. Courts in India now have authority to grant adoption for any child who has been "abandoned" "orphaned" or "surrendered". The Juvenile Justice Act is now effective throughout India, except for Jammu and Kashmir. In light of these amendments, if a court in India (other than a court in Jammu and Kashmir), on or after August 22, 2006, grants an adoption under the Juvenile Justice Act, USCIS accepts the adoption as valid, regardless of the religion of the adoptive parents or of the child.
Note that to be valid for immigration purposes, the adoption must be:
◊ for children found to be abandoned, orphaned, or surrendered,
◊ made by a court acting under the Juvenile Justice Act, as amended,
◊ after August 22, 2006, and
◊ not in the state of Jammu and Kashmir.
The amended Juvenile Justice Act did not repeal either the Hindu Adoption and Maintenance Act or the Guardians and Wards Act. Adoption by adoption deed under the Hindu Adoption and Maintenance Act is still limited to individuals governed by Hindu law or custom. An order under the Guardians and Wards Act is still guardianship, not adoption.
Also, the 1956 Hindu Adoption and Maintenance Act, the 1890 Guardians and Wards Act, and the Juvenile Justice Act are not in force in the State of Jammu and Kashmir. Jammu and Kashmir has its own family laws. As noted in chapter 21.5(e), a person seeking a benefit based on an adoption in Jammu and Kashmir must show that it is valid for immigration purposes.
(3) Simple adoption. Some countries have a type of adoption commonly called "simple adoption," in addition to another type that may be called "full" or "plenary" or "perfect" adoption. Whether "simple adoption" is valid for immigration purposes depends on the foreign law. For example, in
Matter of Kong, 15 I&N Dec. 224 (BIA 1975), and 14 I&N Dec. 649 (BIA 1974)
Matter of Chang, 14 I&N Dec. 720 (BIA 1974)
the BIA held that "Appatitha," a form of simple adoption in Burma, did not create a legal parent/child relationship. However, if a simple adoption does create a permanent legal parent/child relationship, it might be valid for immigration purposes (if it otherwise satisfies the three-prong test).
Matter of Chin, 12 I&N Dec. 240 (BIA 1967).
The French Civil Code is one example of simple adoption. It states that simple adoption gives the adoptive parent "all the rights of parental authority." Thus, although the child may still have some inheritance rights through the family of origin, the child is, legally, the child of the adoptive parents not the birth parents. Similarly, in Guinea (Conakry), simple adoption gives the adoptive parent(s) all parental authority over the child. Guinea (Conakry) Code L'Enfant, art. 123.
Even if a "simple adoption" might be more easily terminated than a "full" adoption, that alone does not mean the simple adoption does not create a "permanent" relationship. For example, article 359 of the French Civil Code says plenary adoption is "irrevocable," while article 370 allows for revocation of simple adoption. But simple adoption can only be revoked "[w]here serious reasons so justify." Even the legal parent-child relationship created by birth can be terminated for serious reasons. Moreover, the adoptive parent cannot seek revocation of simple adoption unless the adoptee is over 15 years old. Similarly, in Guinea (Conakry), simple adoption can only be terminated for "grave reasons," and the parent cannot request termination while the child is under 13 years old. Guinea (Conakry) Code L'Enfant, art. 129. These are examples of simple adoptions that can be deemed "permanent," since they cannot be terminated by the adoptive parent while the child is still very young, or simply at the adoptive parent's request.
To summarize, a USCIS adjudicator can find that a "simple adoption" is valid for immigration purposes if the simple adoption meets the three-prong test for simple adoption:
◊ It creates a legal permanent parent-child relationship between a child and someone who is not already the child's legal parent, and
♦ The parent-child relationship cannot be terminated for other than "serious" or "grave" reasons, and
◊ It terminates the legal parent-child relationship with the prior legal parent, and
◊ It does the above, under the law of the country (or political subdivision) granting the simple adoption.
(4) Customary adoption. As noted, the law of the place of adoption governs the validity of an adoption. In some countries, "customary" adoption may exist instead of, or in addition to, adoption through a judicial or administrative procedure. If a customary adoption terminates the legal parent-child relationship with the prior parents, and creates a legal parent-child relationship with the adoptive parent under local law, then that customary adoption is valid for immigration purposes. See
Matter of Lee, 16 I&N Dec. 511 (BIA 1978)
. As with any other case involving questions of foreign law, the petitioner must show that the foreign law actually creates a valid adoption for immigration purposes. See Matter of Annang, 14 I&N Dec. 502 (BIA 1973). As the Board has recognized with respect to customary divorce, see
Matter of Kodwo, 24 I&N Dec. 479 (BIA 2008)
, the petitioner would need to establish that the customary adoption:
◊ Creates a legal permanent parent-child relationship between a child and someone who is not already the child's legal parent, and
◊ Terminates the legal parent-child relationship with the prior legal parent, and
◊ Complies with the requirements of the relevant customary law and is legally recognized in the country or place the adoption occurs.
(d) Effect of legal termination of an adoption. As with the adoption itself, local foreign law governs the validity of a termination of an adoption. However, even if a termination is legally valid, it will not adversely impact any immigration benefits already granted while an adoption was in effect. See
Matter of Xiu Hong Li, 21 I&N Dec. 13 (BIA 1995)
. Moreover, termination of an adoption does not necessarily mean that the legal parent-child relationship has actually been restored with the birth parent. As the Board noted in Xiu Hong Li, "We do not assume that natural relationships are automatically reestablished solely by virtue of the fact that an adoption has been lawfully terminated." See Matter of Xiu Hong Li at 18. Therefore, even if no immigration benefits flowed from the adoption, the evidence must show that the legal relationship to the prior parent is re-established according to law in order for that relationship to form the basis for granting a benefit under the INA.
(e) Getting evidence about the foreign adoption law. In proceedings under the INA, foreign law is a question of fact to be proved by evidence. See
Matter of Annang, 14 I&N Dec. 502 (BIA 1973)
. If the evidence of record does not clearly show that an adoption creates a permanent legal parent-child relationship, the USCIS officer will issue a request for evidence (RFE) asking for a copy of the relevant laws, with properly certified English translations. The officer can also request information, or a formal opinion, about the foreign law, from the Library of Congress, through appropriate channels.
Information about the Library of Congress is on USCIS Connect. Work within your office's local policy and guidelines to request an opinion from the Library of Congress.
The Department of State has information on adoptions and country-specific information on their
adoptions webpage and their
visa reciprocity tables. An adjudicator can also request assistance, through appropriate USCIS and National Visa Center channels, and from U.S. consular posts or USCIS field offices abroad.
Another resource for information is the
CIA World Factbook
(z) Revocation of VAWA-based Forms I-360.
(1) Field Request for Review of an Approved VAWA-based Form I-360. If an officer in the field receives new information that was not available to the VSC at the time of the approval of a VAWA self-petition, and that new information leads the officer to reasonably believe that a VAWA self-petition should be revoked, the officer must write a memorandum to his or her Supervisory Immigration Service Officer (SISO) explaining why the VAWA self-petition should be reviewed for possible revocation. The memorandum must state what the new information is and how USCIS obtained it.
(2) Supervisory Review and Return to VSC. If, upon review of an officer's memorandum of explanation, the SISO concurs in the officer's assessment, the SISO must sign the memorandum and forward it, with the file in question, to the VSC to the attention of the VAWA unit. A VSC VAWA unit supervisor will review the memorandum of explanation and the relating file and make a recommendation either to initiate revocation proceedings or to reaffirm the self-petition. If the VSC supervisor concurs with a recommendation to reaffirm the self-petition, he or she must write a memorandum explaining why the self-petition was not revoked. This memorandum will be returned to the field with the file. In all such situations, the VSC is expected to complete its review process on an expedited basis. Self-petitions being returned to the VSC from a field office, or from the VSC to a field office, must in all cases be accompanied by a memorandum signed by the appropriate supervisor.
(3) Reminder of Special Provisions Relating to VAWA Cases. Officers should keep in mind that
of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) (8 U.S.C. Section 1367) prohibits DHS employees from making an adverse determination of admissibility or deportability of an alien using information provided solely by:
- A spouse or parent who has battered the alien or subjected the alien to extreme cruelty;
- A member of the spouse's or parent's family residing in the same household as the alien who has battered the alien or subjected the alien to extreme cruelty when the spouse or parent consented to or acquiesced in such battery or cruelty;
- A spouse or parent who has battered the alien's child or subjected the alien's child to extreme cruelty (without the active participation of the alien in the battery or extreme cruelty); or
- A member of the spouse's or parent's family residing in the same household as the alien who has battered the alien's child or subjected the alien's child to extreme cruelty when the spouse or parent consented to or acquiesced in such battery or cruelty and the alien did not actively participate in such battery or cruelty. (See IIRIRA Section 384(a)(1). For limited exceptions to this prohibition, see IIRIRA Section 384(b).)
Any adverse information received by USCIS from a self-petitioner's U.S. citizen or lawful permanent resident spouse or parent, or from relatives of that spouse or parent, must be independently corroborated by an unrelated source before USCIS may take adverse action based on that information. (See Virtue, INS Office of Programs, "Non-Disclosure and Other Prohibitions Relating to Battered Aliens: IIRIRA Section 384," (May 5, 1997).)
Section 384 of IIRIRA also prohibits DHS employees from permitting the use by or disclosure to anyone (other than a sworn officer or employee of the Department, or bureau or agency thereof, for legitimate Department, bureau, or agency purposes) of any information that relates to an alien who is the beneficiary of a VAWA-based self-petition. (See IIRIRA Section 384(a)(2).) Anyone who willfully uses, publishes, or permits such information to be disclosed in violation of IIRIRA Section 384 will face disciplinary action and be subject to a civil money penalty of up to $5,000 for each such violation. (See IIRIRA Section 384(c).)
The provisions of the affecting this eligibility requirement apply to all self-petitions pending on or filed on or after October 28, 2000.