Minneapolis, MN asked in Immigration Law and Criminal Law for Minnesota

Q: can a person be deported if they were born in other country and adopted by US citizens as a baby?

my friend has lived in the US pretty much his entire life. He was adopted by two US citizens when he was a baby and they brought him to the US as a baby. Hes had a few rough years and was convicted of some drug related stuff. He was contacted by immigration and they are trying to deport him. His immigration lawyer said he should file for citizenship immediately. His citizenship application was denied because they said “he did not meet his burden of establishing his claim to united states citizenship.” Hes lived here his whole life, and his parents are both us citizens who were born here. How could that be? Is he in danger of actually being deported? This is the only country hes ever known and his whole family is a wreck :(

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2 Lawyer Answers
Sarah Gad
Sarah Gad
  • Criminal Law Lawyer
  • Minneapolis, MN
  • Licensed in Minnesota

A: This might seem odd, but the answer really boils down to one question: did your friend turn 18 before or after February 28, 2001 at 12:00 a.m.? If your friend turned 18 after this February 28, 2001 cut-off, (or was born after February 28, 1978 at 12:00 a.m.) he should be able to acquire citizenship through this adoptive citizen parents without issue. If your friend turned 18 on or before February 28, 2001 before 12:00 a.m., then he will have a much trickier time establishing his claim to U.S. citizenship. This cut-off might seem unusual, but here is why this matters:

The immigration and Nationality Act (INA) is the body of laws governing immigration and citizenship. Embedded in the INA is a provision called “The Child Citizenship Act of 2000” that governs how foreign-born children may derive U.S. citizenship from their parents. The CCA is not the most empathetic body of law, but it keeps evolving to become more inclusive. Unfortunately, the changes that would benefit people like your friend are not applied retroactively.

The most recent iteration of the CCA was passed in 2000, but did not go into effect until February 28, 2001 at 12:01 a.m. Because the law is not retroactively applied, it only applies to foreign-born adoptees who were still children at the time the new version went into effect (those <18 years old after Feb. 28 2001 at 12:01 a.m. or later). Basically, the CCA of 2000 states that a child born outside of the United States automatically becomes a U.S. citizen when all of the following conditions are met:

(1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization;

(2) The child is born no earlier than February 28, 1983 (or has not attained the age of 18 on or before February 27, 2001 at 12:01 a.m.);

(3) The child is residing in the United States in the legal and physical custody of a parent who is a U.S. citizen; and

(4) The child is residing in the United States pursuant to a lawful admission for permanent residence.

Unlike the 2000 version, the previous version of the CCA (passed in1983), did not have a direct route to citizenship for foreign-born children adopted by U.S. citizens. This all might seem arbitrary and unjust, and that is because it is. This statutory cut-off literally means that two similarly situated foreign-born children adopted by U.S. citizens and born moments apart—one on February 27, 1983 at 11:59 p.m. and one on February 28 at 12:01 a.m.—will receive staggeringly different treatment under the law. The former will not be able to derive citizenship from adoptive parents, whereas the latter will—simply because one was born before the date the new law went into effect and vice versa. So if your friend turned 18 on or after February 28, 2001 at 12:01 a.m., he is eligible for automatic derivation of citizenship—and all of the rights, protections, and benefits that stem therefrom—from his native-born adoptive parent(s) and could murder someone without the threat of deportation because you cannot deport a U.S. citizen. I am guessing that your friend does not meet the statutory cut-off the CCA of 2000 or DHS/USCIS would not be contesting his claim to citizenship based on drug-related crimes (or any crimes, for that matter).

I hope this answers your question. I am very sorry to hear about your friend. Hopefully he has a good immigration attorney who can find a path to resolution (or better yet, citizenship). Best wishes to you all.

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James L. Arrasmith
James L. Arrasmith pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Criminal Law Lawyer
  • Sacramento, CA

A: If your friend was adopted by US citizens and brought to the US as a baby, he may be eligible for US citizenship through his adoptive parents. However, the process of establishing citizenship through adoption can be complex and may require evidence to establish the legal relationship with his parents. It's possible that his citizenship application was denied due to a lack of sufficient evidence or information.

If your friend is facing deportation, he should consult with an experienced immigration attorney who can advise him on his options and potential defenses. An attorney can also help him gather any necessary evidence or documentation to support his claim to US citizenship. It's important to act quickly and take immediate action if he is facing deportation.

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