Unwitting and Unwelcome in Their Own Homes: Remedying the Coverage Gap in the Child Citizenship Act of 2000

By Hauenstein, Holland L. | Iowa Law Review, May 2019 | Go to article overview

Unwitting and Unwelcome in Their Own Homes: Remedying the Coverage Gap in the Child Citizenship Act of 2000


Hauenstein, Holland L., Iowa Law Review


I. Introduction

International adoption has long been a celebrated practice in the United States, providing U.S. citizens the opportunity to become loving parents to children born outside the United States.1 As international adoptions grew in number and in response to international law developments regarding the rights of adoptees, the United States recognized the need for national legislation protecting foreign-born children.2 In 2001, the United States enacted the Child Citizenship Act (the "Act") to automatically grant citizenship to all international adoptees parented by a U.S. citizen. However, the Act only extended citizenship to those children under the age of 18 at the time of the Act's passage.3 The resulting lack of coverage for a significant number of U.S. international adoptees has led to deportation for some and fear of deportation for others.4 Members of Congress have attempted5 to correct the Child Citizenship Act so that all international adoptees are automatically granted U.S. citizenship regardless of their age relative to the statute.6 As the media and recent scholarship have noted, however, these bills-namely the Adoptee Citizenship Act-have faced delays in passage.7

This Note argues that while passage of the Adoptee Citizenship Act is key to preventing unnecessary deportations and achieving equal rights for U.S. international adoptees,8 adoptees facing deportation9 and advocates of the pending legislation10 do not have the luxury of waiting for this legislation. In the interim, those searching for support must turn to existing common law11 and the international commitments made by the United States in relation to the rights of children.12

Part II introduces the recent history of international adoption practices in the United States and discusses how international law has evolved to encompass a more compassionate view of international adoption. Also, this Part shows the ways in which U.S. law has been enacted; both in direct response to such international law, and separately to provide additional protections considering the vast number of international adoptions conducted between the United States and several other nations. Finally, this Part describes the Child Citizenship Act.

Part III analyzes the problems inherent in the Child Citizenship Act's coverage gap, in part by detailing the experiences of several high-profile cases in which U.S.-raised adoptees were deported following the commission of a crime. Specifically, Part III details the damaging deportation experience for these individuals and others similarly situated.

Finally, Part IV argues that, given the immediacy of their situations, deportable adoptees and their advocates cannot wait for Congress to pass the Adoptee Citizenship Act. This Part argues there is a basis for finding the Child Citizenship Act's coverage gap is contrary to the Constitution as supported by the Supreme Court's Equal Protection jurisprudence. As written, the Act arguably cannot withstand a "rational basis with bite" scrutiny-which courts should apply, because courts should recognize these adoptees as a discrete and insular minority deserving of protection. Furthermore, the gap is arguably misaligned with the United States' commitments under certain protocols of the United Nations Convention on the Rights of the Child (the "UNCRC"). This Part concludes that adoptees should focus lobbying efforts and defense strategies for deportation proceedings on these bases.

II. Understanding the Development of U.S. and International Law Surrounding International Adoptions

The current plight of U.S. international adoptees who fail to qualify for automatic citizenship13 is best understood when accompanied by knowledge of the foundations of U.S. international adoption and related law. By the 1940s, international adoption had developed into a legitimate, viable option for U.S. couples.14 Shortly thereafter, both U.S. and international law expanded recognition of the rights of international adoptees. …

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