The Foreign Service Journal, September 2013

40 SEPTEMBER 2013 | THE FOREIGN SERVICE JOURNAL From 2010 until 2012, we repeatedly dissented from the Bureau of Consular Affairs over its interpretation of the CCA. avoid conferring any legal advantage on adoptive children over biological children. Yet by covering foreign-born biologi- cal children, the law ignored a key distinction: Foreign-born adopted children are typically moving to “reside” with their parents in the United States, while foreign-born biological children are not. This created a potential loophole benefiting American-cit- izen parents who lacked sufficient physical presence to satisfy the five-year requirement. By pretending to have their foreign- born children immigrate to the United States and reside here, they could obtain citizenship for them automatically—as opposed to physically immigrating here with them and waiting the prescribed amount of time for naturalization to occur. The State Department made this potential loophole opera- tional through a unique interpretation of the language of the law. The CCA specifies that the child must be “residing in” the United States, which under a common-sense reading requires Americans living abroad to return to the United States and establish a residence there, immigrating their child with them. But according to State’s interpretation of this provision, “resid- ing in” only meant “physically present in.” This enabled the parents to enter the United States with their children for very brief periods (in some cases less than a full day), then return abroad to apply for a passport for their children at the U.S. embassy. In fact, State specifically prohibited officers from request- ing evidence that the child was “residing” in the United States, and told them to accept an entry stamp into the U.S. with a valid immigrant visa and green card as proof that the child was “residing” there (even when common sense clearly indicated this was not the case). This interpretation of the CCA was completely the opposite of how U.S. Citizenship and Immigration Services (formerly known as the Immigration and Naturalization Service) inter- preted the law. USCIS took “residing in” a place to mean “hav- ing a residence” there, which is supported by the Immigration and Nationality Act’s definition of residence: a person’s “gen- eral abode—principal, actual dwelling place in fact, without regard to intent.” Interestingly, State’s domestic passport agen- cies hewed closely to the USCIS definition of the law, as we learned when one person to whom we had issued a passport based on State’s guidance was unable to renew it in the U.S. This case proved to be the tipping point for us, as we realized that this bifurcated interpretation had become untenable. Over the years, consular officers received many complaints about the department’s interpretation of the CCA from our colleagues in USCIS. This confirmed that this was a huge bone of contention between two agencies who were supposed to be working together to correctly implement citizenship law. Dissenting from State on the CCA From 2010 until 2012 the two co-authors of this article repeatedly dissented from the Bureau of Consular Affairs over its interpretation of this law. We felt they had not done every- thing possible to work with USCIS to come up with a unified interpretation and implementation standard. Determining someone’s citizenship was too important to have two different government agencies not on the same page. The responses we received were not satisfactory. The lawyers in what was then known as the Office of Policy Review and Interagency Liaison, a division of the Office of Over- seas Citizen Services, told us that because they were deeply involved in discussions with congressional staff in 1999 and 2000, when the Child Citizenship Act was being drafted, they had special knowledge of what the actual “intent” of Congress was when drafting the law. And in PRI’s view, part of that intent was to “provide relief” for American parents who didn’t have enough physical presence to transmit citizenship to their foreign-born children. But as we noted in our response, there was no mention of such “intent” in the public record of the congressional debate of this bill. The law was sold only as an adoption bill, and was originally called “The Adopted Orphans Citizenship Act.” As for the disagreement with USCIS about how to properly interpret and apply this law, PRI maintained that they “agreed to disagree” and that “reasonable people can differ” on the interpretation of the law (in spite of the fact that the United States Citizenship and Immigration Service has the lead in interpreting citizenship law, not the State Department).