Court Refuses to Allow Adopted Parents to Classify Their Niece as Orphan

In an attempt to obtain a better life for their child, parents who live outside of the United States sometimes consider allowing their U.S. immigrant relatives to adopt their child. They do this hoping that it will allow their child to immigrate to the United States and take advantage of the opportunities that this country has to offer.

Family adoption for immigration purposes is, however, a very complicated process and sometimes, the family members do not achieve their goal. The adoption must take place before the child is 16 years old. The child must have been residing (living) with the adoptive parents for two years although this can occur before the adoption takes place. In addition, the adopting parents must have two years of legal custody. Legal custody means final adoption decree or official document in the form of a custody award by the court or recognized government entity. The adoption must conform to the laws of adoption where the adoption took place. Informal documents, such as sworn affidavits are not enough.

The INS investigates to see whether the adoption is real, especially where the adoptive parents are relatives of the natural parents. Where the adoptive child, the adoptive parents and the natural parents all live together, the adoptive parents must show that they exercise primary parental control.

Once the adoption is completed and an immigration benefit has been received, the adopted child can never file a petition for his natural parents. The adopted child can not file for natural siblings even if no immigration benefit was obtained from the adopted parents.

The process of immigrating an adopted child is different from that of immigrating an orphan. Orphans do not have a two year legal custody requirement. Nor do they have a residence requirement. Orphans simply need to establish that they are adopted abroad or coming to the U.S. for adoption. (If the child is already here, the process is adoption, not orphan.)

However, the criteria for defining an orphan may be hard to reach. For immigration purposes, a child is an orphan by reason of the death or disappearance, abandonment and/or desertion, separation or loss of both parents. If the child has only one parent, it is necessary to prove that the parent is incapable of providing proper care. The parent must irrevocably, in writing, release the child. If the child is born out of wedlock, unless the father has disappeared or abandoned or deserted the child or has in writing irrevocably released the child for emigration and adoption, his rights and ability to care for the child are given equal weight to the mother’s. In other words, if he is capable of caring for the child, the child will not qualify for status as an orphan.

In Rogan v. Reno, the U.S. District Court in New York upheld the INS’s denial of a petition to classify the petitioners’ biological niece as an adopted child. Prior to denying the petition, the INS had conducted an overseas investigation in the home country. Based on the facts learned in the investigation the INS found, that the child did not come within the statutory definition of orphan. The court agreed. Despite the fact that the biological mother had consented to the adoption 15 days after the child’s birth, the court held that release by the parents does not constitute abandonment. The court also held that the child’s father had not abandoned her and, so, the child could not be considered one whose sole parent was unable to support her. Finally, the court held that, even if the father had abandoned the child, the mother had an above average standard of living, and, so, she was capable of supporting her child.

The laws regarding adoption or petitioning for an orphan are very exacting and must be followed very carefully. When a person is considering adopting a family member or an orphan, and plans to immigrate that child, the prospective adoptive parent should consult an attorney knowledgeable in immigration law in order to ensure that the desired result is achieved.