'[Take from Us Our] Wretched Refuse': The Deportation of America's Adoptees

Abstract

Foreign-born children adopted by American citizens are subject to U.S. immigration law. Because the Fourteenth Amendment to the U.S. Constitution guarantees American citizenship only to “persons born or naturalized in the United States”, previous immigration law required that children born abroad and adopted by American parents undergo a separate naturalization process before the children received U.S. citizenship. However, many parents did not complete that process and left their adopted children to reside in the United States as non-citizen immigrants, subject to U.S. Immigration and Customs Enforcement (ICE) action for even minor, nonviolent criminal offenses. Many thus face deportation to their countries of origin — places where they no longer speak the native language nor have meaningful connections — even though America is the only country they call home. And under current immigration law, judges are powerless to intervene otherwise.

The last twenty years, in particular, have seen an increase in immigration enforcement as the list of deportable offenses for non-citizens has expanded under federal immigration law. At the same time, restrictions on judicial review of removal actions have resulted in such harsh consequences that “[t]rial judges adjudicating criminal matters have been divested of a long-standing discretionary power to make recommendations against deportation of non-citizen defendants”.

Congress attempted to fix the problem by passing the Child Citizenship Act of 2000, which automatically granted U.S. citizenship to those adopted from abroad by American citizens. However, because of political compromise, the Act extended the protection of U.S. citizenship only to those under the age of 18. Congress tried to remedy the problem in 2013; the Senate approved a measure to fix the loophole, but it stalled in the House of Representatives, and U.S. citizenship again proved elusive for this group of adoptees. Meanwhile, an estimated 18,000 of these children, now adults, remain in a de facto stateless status and live “off the grid” in America, constitutionally unable to vote, serve on a jury, seek public office, obtain passports, or enjoy other privileges of U.S. citizenship.

Recently, the Adoptee Citizenship Act of 2015 was introduced to finally grant citizenship to all foreign-born children adopted by U.S. citizen parents, regardless of age. The Article ultimately calls on Congress to pass this needed legislation that would finally grant to all adoptees the U.S. citizenship that is long overdue, but also notes the considerable uphill battle the bill faces amid the current state of immigration law and partisan politics that reflect continuing nativist concerns.

Keywords: adoption, international, deportation, immigration, nativism, citizenship

JEL Classification: B25, D31, D63, H50, I00, I30, J00, J1, J10, J11, J12, J18, K33, N3