BIA Holds That A Petitioner Seeking Approval Of A Form I-130 For An Adopted Child From A Country That Is A Party To The Hague Convention Should Provide, Regardless Of The Length Of The Beneficiary’s U.S. Residence: 1) A Written Statement From The Central Authority Of The Child’s Country Of Origin Stating That It Is Aware Of The Child’s Presence In The U.S. And Of The Adoption, And That It Has Determined That The Child Is Not Habitually Resident In The County Of Origin; And 2) An Adoption Order Or Amended Adoption Order Incorporating The Language Of The Statement From The Central Authority. An Adopted Child Will Not Be Considered Habitually Resident In The U.S. Unless The Petitioner Shows That The Central Authority Of The Child’s Country Of Origin Did Not Respond To The Request For A Habitual Residence Statement, That The Central Authority Responded That It Would Not Write A Habitual Residence Statement, Or That The U.S. Department Of State Has Confirmed That The Central Authority Does Not Issue Habitual Residence Statements.
On May 17, 2024, the Board of Immigration Appeals (BIA or Board) dismissed an appeal filed by an I-130 petitioner whose visa petition on behalf of an adopted child was denied by USCIS. During the appeal, the BIA had requested and received supplemental briefing on the applicability of the Hague Convention to the case.
As background, the U.S. citizen petitioner had adopted her grandson, a native of Cabo Verde, 4 years after he entered the U.S. in B-2 status. Thereafter, she filed an I-130 seeking to classify him as her adopted child. The USCIS then issued an Notice of Intent to Deny (NOID) on the grounds that petitioner “had not submitted sufficient evidence to show that the adoption falls outside the scope of the Hague Convention.” The NOID found that petitioner had not shown that, at the time of the adoption, the beneficiary was not habitually residing in Cabo Verde. This, the NOID explained, could be established by: 1) a written statement from the Central Authority of Cabo Verde indicating that it is aware of the child’s presence in the U.S. and of the adoption, and that it has determined that the child is not habitually resident in that country and 2) an adoption order or amended adoption order incorporating the language of the statement. Additionally, if petitioner attempted to contact the Cabo Verde Central Authority and did not receive a timely response, she should advise USCIS of her efforts and submit evidence to show that prior to the adoption, the beneficiary resided in the U.S. for a substantial period and established compelling ties in the country.
Petitioner’s response to the NOID consisted of additional documentation confirming that her grandson had resided with her for the 4 years prior to filing the I-130. USCIS denied the petition on the ground that the evidence submitted did not establish that beneficiary satisfied the definition of an adopted child under INA §101(b)(1)(E) as she did not show that the adoption fell outside the scope of The Hague Convention because she did not file a statement of habitual residence from Cabo Verde Central Authority or provide evidence that she tried to obtain such a statement. It was this decision that petitioner appealed.
The Board defined the issue on appeal as whether one who files an I-130 on behalf of an adopted child whose country of origin is a party to The Hague Convention must provide either a statement from the Central Authority of the adoptee’s home country or evidence that she attempted to obtain such a statement, citing to 8 C.F.R. § 1003.1(d)(3)(iii).
In beginning its analysis, the BIA stated that a visa petition seeking to classify an adopted child as the child of a U.S. citizen must establish that the beneficiary meets the requirements of §101(b)(1)(E); however, if the adopted child is from a country that is a party to The Hague Convention, “a more rigorous set of requirements applies.” Cabo Verde is a party to the Convention.
Because the U.S. is also a party, it must adhere to the treaty in all cases in which a U.S. citizen adopts a child from a Convention country. The Hague Convention applies to an adoption where: 1) the child is habitually resident in one Convention country, 2) the adoptive parent is habitually resident in a different Convention country, and 3) the child has immigrated or will immigrate to the adoptive parent’s country based on the adoption.
In turn, USICS has establish a petitioning process for Hague Convention adoptions that differs significantly from the more common I-130 process and requires the filing and adjudication of Forms I-800 and I-800A.
First, the I-800A must be filed with proof that a home study has been completed. Once the I-800A is approved, the petitioner must apply to obtain a proposed adoptive placement with the Convention country of origin’s Central Authority. An I-800 petition must also be filed before adoption; the I-800 process applies even when a child is present in the U.S., if the adoption was entered on or after the Convention’s effective date and the child’s habitual residence immediately before arrival in the U.S. was a Convention country.
The Board next noted exceptions to the Hague Convention adoption process, namely that an I-130 may be filed on behalf of a convention country child if he or she was adopted on or after the effective date of the convention only if the petitioner shows that at the time of the adoption, the petitioner was not habitually resident in the U.S. or the beneficiary was not habitually resident in a Convention country. In this context, stated the decision, USCIS will make findings regarding the petitioner’s and beneficiary’s respective countries of habitual residence and will determine, based on these findings, whether the Convention applies.
As to proof of the beneficiary’s habitual residence, the BIA found that to approve an I-130 filed on behalf of an adopted child from a Convention country (as in appellant’s case), USCIS generally requires 1) a written statement from the Central Authority of the child’s country of origin indicating that it is aware of he child’s presence in the U.S. and of the adoption, and that it had determined that the child is not habitually resident in the country of origin and 2) an adoption order or amended adoption order incorporating the language of the statement from the Central Authority. If a petitioner does not submit a termination letter from the Central Authority. If a petitioner does not submit a determination letter from the Central Authority, USCIS requires a showing that the Authority did not respond to the request for a habitual residence statement, that the Authority responded that it would not write such a statement, or that the U.S. Department of State has confirmed that the authority does not issue habitual residence statements (“Hague requirements”). The opinion confirmed that requiring a petitioner to demonstrate that he or she contacted the foreign Central Authority is consistent with the U.S.’s obligations under the Convention.
The Board also agreed with DHS’ appellate argument that failing to consider a Central Authority’s view on the child residence could “undermine international cooperation between the United States and other Convention countries” and lead to countries refusing to recognize U.S. adoptions or possibly limiting intercountry adoptions with the U.S. Further, requiring that the applicable Central Authority “weigh in on the child’s habitual residence” satisfies the regulatory requirements that the country of origin determine that the child’s status is “sufficiently stable [for the United States] to properly to exercise jurisdiction over the child’s adoption or custody.”
The BIA therefore held that a petitioner seeking approval of an I-130 visa petition filed on behalf of an adopted child from a country that is a party to the Hague Convention must, regardless of the beneficiary’s length of residence in the U.S., comply with the “Hague requirements”; an adopted child will not be considered habitually resident in the U.S. unless the petitioner proves that the pertinent Central Authority did not respond to the request for a habitual residence statement, that the Central Authority responded that it would not write a habitual residence statement, or that the U.S. Department of State has confirmed that the Central Authority does not issue habitual residence statements.
Applying this holding to the instant case, the decision found that because petitioner “did not comply with the Hague Convention adoption process and instead filed an I-130 petition after the beneficiary’s adoption,” the Board had to determine whether petitioner had met her burden in establishing that the beneficiary was eligible for an immediate relative visa as the adopted child of a U.S. citizen under INA §201(b)(2)(A)(i).
The USCIS NOID had requested a written statement from the Cabo Verde Central Authority stating that it was aware of the beneficiary’s adoption and that it has determined that the beneficiary is not a habitual resident of Cabo Verde. Alternatively she could file evidence that she has tried to obtain such a statement. In response, petitioner merely submitted documents showing that the beneficiary had resided in the U.S. prior to the adoption and had not lived in Cabo Verde “since a very young age.” Petitioner did not submit a statement from the Cabo Verde Central Authority or an adoption order or an amended adoption order incorporating language from a Central Authority statement. Nor did petitioner aver or provide evidence that she attempted to obtain a habitual residence statement without success or that the Central Authority responded that it would not provide such a statement. Without the Central Authority statement or a showing that petitioner could not obtain this statement, the evidence of the beneficiary’s residence in the U.S. was insufficient to meet petitioner’s burden under §201(b)(2)(A)(i).
The appeal was dismissed, with petitioner informed that she could file a new I-130 “supported by evidence that satisfies the requirements discussed and establishes that the beneficiary is eligible for immediate relative status.” Matter of Furtado, 28 I&N Dec. 794 (BIA 2024).
