79–006

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

2

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.’’.

3

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).

3The adoption must meet the requirements of sections 101(b)(1)(E) or (F) of the INA.

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

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:

• at least one parent is a citizen of the United States, whether

by birth or naturalization,

• the child is physically present in the United States pursuant

to a lawful admission,

• the child is under 18 and in the legal custody of the citizen

parent,

• if the child was adopted, the child was adopted before the

child reached 16 in an adoption meeting the requirements of

the INA 3, and

4

4 INA sec. 322(a).

5 INA secs. 322(b), 337(a).

6 INA sec. 320(a).

7 INA sec. 320(b).

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). 9Letter from Robert Raben, Assistant Attorney General, U.S. Department of Justice, to Henry

J. Hyde, chairman, House Judiciary Committee, at 4 (July 18, 2000).

• if 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

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.

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

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: • both 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), • the naturalization takes place when the child is under 18,

and • the 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

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 exVerDate 11-MAY-2000 21:31 Sep 14, 2000 Jkt 079006 PO 00000 Frm 00004 Fmt 6659 Sfmt 6601 E:\HR\OC\HR852.XXX pfrm01 PsN: HR852
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10Letter from Robert Raben to Lamar Smith, chairman, Subcommittee on Immigration and

Claims, House Judiciary Committee (Nov. 22, 1999).

pense 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.

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.

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: • at least one parent of the child is a citizen of the United

States, whether by birth or naturalization, • the child is under 18, and

• 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.

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

6

Policy Review and Interagency Liaison, Overseas Citizens Services,

Bureau of Consular Affairs, U.S. State Department; Susan SoonKeum 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:

7

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.

8

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:• at least one parent of the child is a citizen of the United

States, whether by birth or naturalization, • the child is under 18, and • 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.

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:

• at least one parent is a citizen of the United States, whether

by birth or naturalization,

• the 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

9

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, • the child is under 18, and • 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.

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 legislaVerDate 11-MAY-2000 21:31 Sep 14, 2000 Jkt 079006 PO 00000 Frm 00009 Fmt 6659 Sfmt 6601 E:\HR\OC\HR852.XXX pfrm01 PsN: HR852
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tion 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.

11

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 nativeborn 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, noncitizen 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

12

to citizenship of children. This legislation eliminates inequities in

the current law by creating a standard set of conditions for foreignborn 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.

13

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.

* * * * * * *

øSec. 320. Children born outside of United States of one alien and one citizen parent.¿

14

Sec. 320. Children born outside United States; conditions under which citizenship

automatically acquired.

øSec. 321. Children born outside of United States of alien parent.

øSec. 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

* * * * * * *

øCHILD BORN OUTSIDE OF UNITED STATES OF ONE ALIEN AND ONE

CITIZEN PARENT AT TIME OF BIRTH; CONDITIONS UNDER WHICH

CITIZENSHIP AUTOMATICALLY ACQUIRED

øSEC. 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—

ø(1) such naturalization takes place while such child is

under the age of eighteen years; and

ø(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.

ø(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).

øCHILD BORN OUTSIDE OF UNITED STATES OF ALIEN PARENT;

CONDITIONS UNDER WHICH CITIZENSHIP AUTOMATICALLY ACQUIRED

øSEC. 321. (a) A child born outside of the United States of alien

parents, or of an alien parent and a citizen parent who has subseVerDate 11-MAY-2000 21:31 Sep 14, 2000 Jkt 079006 PO 00000 Frm 00014 Fmt 6659 Sfmt 6601 E:\HR\OC\HR852.XXX pfrm01 PsN: HR852
15

quently lost citizenship of the United States, becomes a citizen of

the United States upon fulfillment of the following conditions:

ø(1) The naturalization of both parents; or

ø(2) The naturalization of the surviving parent if one of the

parents is deceased; or

ø(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

ø(4) Such naturalization takes place while such child is under

the age of eighteen years; and

ø(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.

ø(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.

øCHILD BORN OUTSIDE THE UNITED STATES; APPLICATION FOR

CERTIFICATE OF CITIZENSHIP REQUIREMENTS

øSEC. 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:

ø(1) At least one parent is a citizen of the United States,

whether by birth or naturalization.

ø(2) The child is physically present in the United States

pursuant to a lawful admission.

ø(3) The child is under the age of 18 years and in the legal

custody of the citizen parent.

ø(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.

ø(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—

ø(A) the child is residing permanently in the United

States with the citizen parent, pursuant to a lawful admission for permanent residence, or

ø(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

16

years, at least two of which were after attaining the age

of fourteen years.

ø(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.

ø(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).

* * * * * * *

Æ