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Immigration Law
BIA Holds Hague Convention Does Not Apply to LPR Petitioning for Adopted Child
      Browse: 1212      Date: 01-23-2015

The petitioner appeals from the December 23, 2013, decision of the Service Center Director that denied the visa petition. The appeal will be sustained and the record remanded.

 

The record shows that the petitioner, a lawful permanent resident (LPR) of the United States, and her spouse, a United States citizen, adopted the beneficiary in Mexico in December 2009, shortly after her birth. The petitioner filed a Form 1-130, Petition for Alien Relative, on behalf of the beneficiary as her adopted child. The Director found that that the petitioner did not establish that the adoption is not subject to the Hague Convention (Convention) or that it complies with Convention requirements. The Director acknowledged that only a United States citizen is precluded from filing a Form 1-130 on behalf of a Convention adoptee, but reasoned that the Convention also applied to the LPR petitioner in this case because she and her United States citizen spouse adopted the child together.

 

Upon examination of the applicable regulations and comments thereto, which the Director cited in the decision on appeal, it appears that the regulations primarily focus on allowing only a United States citizen to benefit from pursuing an adoption through the Convention. See 8 C.F.R §§ 204.2(d)(2)(vii)(D), (E), (F); 72 Fed. Reg. 56,832 (Oct. 4, 2007). Neither the regulations nor the comments require a LPR adoptive parent to pursue a Convention adoption rather than to file a Form I-130 on behalf of the adopted child. Thus, we conclude that in a situation such as the one before us, the adoptive parents may choose either (1) to pursue a Convention adoption route or (2) to pursue the Form 1-130 route through the LPR spouse.

 

In the case before us, the LPR petitioner filed a Form 1-130 on behalf of the beneficiary. Inasmuch as this is a valid course of action, as discussed above, we will sustain the petitioner's appeal of the denial of that visa petition. The record will be remanded to the Director for further processing of the visa petition on the merits. Accordingly, the following order will be entered.
 

ORDER: The appeal is sustained.
 

FURTHER ORDER: The record is remanded to the Director for further proceedings consistent with the foregoing opinion and for the entry of a new decision.


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Convention requirements include the filing of a Form I-800A, Application for Determination of Suitability to Adopt a Child from a Convention Country, and a Form 1-800, Petition to Classify Convention Adoptee as an Immediate Relative, and all associated procedures.
Benefits of a Convention adoption include: (1) the adopted child may automatically acquire/United States citizenship; and (2) the adoptive parent does not need to satisfy the 2-year residency and legal custody requirements of section 101(b)(1)(E) of the Immigration and Nationality Act, 8 U.S.C.§1101(b)(1)(E).

Source: AILA