[House Report 106-852]
[From the U.S. Government Publishing Office]



106th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     106-852

======================================================================



 
                    ADOPTED ORPHANS CITIZENSHIP ACT

                                _______
                                

 September 14, 2000.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

Mr. Smith of Texas, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 2883]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 2883) amending the Immigration and Nationality Act 
to confer United States citizenship automatically and 
retroactively on certain foreign-born children adopted by 
citizens of the United States, having considered the same, 
reports favorably thereon with amendments and recommends that 
the bill as amended do pass.

                           TABLE OF CONTENTS

                                                                  

                                                                 Page
The Amendment..............................................           2
Purpose and Summary........................................           3
Background and Need for the Legislation....................           3
Hearings...................................................           5
Committee Consideration....................................           6
Vote of the Committee......................................           6
Committee Oversight Findings...............................           6
Committee on Government Reform Findings....................           6
New Budget Authority and Tax Expenditures..................           6
Congressional Budget Office Cost Estimate..................           6
Constitutional Authority Statement.........................           8
Section-by-Section Analysis and Discussion.................           8
Agency Views...............................................           9
Changes in Existing Law Made by the Bill, as Reported......          13
    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Child Citizenship Act of 2000''.

SEC. 2. AUTOMATIC ACQUISITION OF CITIZENSHIP FOR CERTAIN CHILDREN BORN 
                    OUTSIDE UNITED STATES.

    (a) In General.--Section 320 of the Immigration and Nationality Act 
(8 U.S.C. 1431) is amended to read as follows:

     ``children born outside united states; conditions under which 
                   citizenship automatically acquired

    ``Sec. 320. (a) A child born outside of the United States 
automatically becomes a citizen of the United States when all of the 
following conditions have been fulfilled:
            ``(1) At least one parent of the child is a citizen of the 
        United States, whether by birth or naturalization.
            ``(2) The child is under the age of eighteen years.
            ``(3) The child is residing in the United States in the 
        legal and physical custody of the citizen parent pursuant to a 
        lawful admission for permanent residence.
    ``(b) Subsection (a) shall apply to a child adopted by a United 
States citizen parent if the child satisfies the requirements for being 
a child under subparagraph (E) or (F) of section 101(b)(1).''.
    (b) Clerical Amendment.--The table of sections of such Act is 
amended by striking the item relating to section 320 and inserting the 
following:

``Sec. 320. Children born outside United States; conditions under which 
citizenship automatically acquired.''.

SEC. 3. ACQUISITION OF CERTIFICATE OF NATURALIZATION FOR CERTAIN 
                    CHILDREN BORN OUTSIDE UNITED STATES.

    (a) In General.--Section 322 of the Immigration and Nationality Act 
(8 U.S.C. 1433) is amended to read as follows:

  ``children born and residing outside united states; conditions for 
                acquiring certificate of naturalization

    ``Sec. 322. (a) A parent who is a citizen of the United States may 
apply for naturalization on behalf of a child born outside of the 
United States. The Attorney General shall issue a certificate of 
naturalization to such parent upon proof, to the satisfaction of the 
Attorney General, that the following conditions have been fulfilled:
            ``(1) At least one parent is a citizen of the United 
        States, whether by birth or naturalization.
            ``(2) The United States citizen parent--
                    ``(A) has been physically present in the United 
                States or its outlying possessions for a period or 
                periods totaling not less than five years, at least two 
                of which were after attaining the age of fourteen 
                years; or
                    ``(B) has a citizen parent who has been physically 
                present in the United States or its outlying 
                possessions for a period or periods totaling not less 
                than five years, at least two of which were after 
                attaining the age of fourteen years.
            ``(3) The child is under the age of eighteen years.
            ``(4) The child is residing outside of the United States in 
        the legal and physical custody of the citizen parent, is 
        temporarily present in the United States pursuant to a lawful 
        admission, and is maintaining such lawful status.
    ``(b) Upon approval of the application (which may be filed from 
abroad) and, except as provided in the last sentence of section 337(a), 
upon taking and subscribing before an officer of the Service within the 
United States to the oath of allegiance required by this Act of an 
applicant for naturalization, the child shall become a citizen of the 
United States and shall be furnished by the Attorney General with a 
certificate of naturalization.
    ``(c) Subsections (a) and (b) shall apply to a child adopted by a 
United States citizen parent if the child satisfies the requirements 
for being a child under subparagraph (E) or (F) of section 
101(b)(1).''.
    (b) Clerical Amendment.--The table of sections of such Act is 
amended by striking the item relating to section 322 and inserting the 
following:

``Sec. 322. Children born and residing outside United States; 
conditions for acquiring certificate of naturalization.''.

SEC. 4. CONFORMING AMENDMENT.

    Section 321 of the Immigration and Nationality Act (8 U.S.C. 1432) 
and the item relating to section 321 in the table of sections are 
repealed.

SEC. 5. EFFECTIVE DATE.

    The amendments made by this Act shall take effect 120 days after 
the date of the enactment of this Act.

    Amend the title so as to read:

      A bill to amend the Immigration and Nationality Act to 
modify the provisions governing acquisition of citizenship by 
children born outside of the United States.

                          Purpose and Summary

    H.R. 2883 modifies the provisions of the Immigration and 
Nationality Act governing acquisition of United States 
citizenship by certain children born outside of the United 
States, principally by providing citizenship automatically to 
such children.

                Background and Need for the Legislation

A. Current Law as to the Citizenship of Foreign-Born Children Who Are 
        the Natural-Born or Adopted Children of a U.S. Citizen(s)
    Under current law, a child born abroad to two U.S. citizen 
parents is considered a U.S. citizen at birth as long as one of 
the parents has had a residence in the United States prior to 
the birth of the child.\1\ In addition, under current law a 
child born abroad to a U.S. citizen and an alien parent is also 
considered a U.S. citizen at birth if the U.S. citizen parent 
was, prior to the birth of the child, physically present in the 
United States for a period or periods totaling not less than 5 
years, at least two of which were after attaining the age of 
14.\2\
---------------------------------------------------------------------------
    \1\ INA sec. 301(c). This residence requirement is longstanding. 
The act of March 26, 1790, stipulated that ``The right of citizenship 
shall not descend to persons whose fathers have never resided in the 
United States.'' The requirement is designed to ``prevent the 
establishment of successive generations of absentee citizens, who were 
not identified and not familiar with American language, customs, and 
traditions, and who might seek to avail themselves of the advantages of 
American citizenship while evading its duties.'' Gordon, Mailman & 
Yale-Loehr, 7 Immigration Law and Procedure sec. 93.02(5)(a) (2000). 
And, as the Supreme Court stated in Weedin v. Chin Bow, citizenship 
should not be extended to ``a generation whose birth, minority and 
majority, whose education, and whose family life, have all been out of 
the United States and naturally within the civilization and environment 
of an alien country.'' 274 U.S. 657, 667 (1927).
    \2\ INA sec. 301(g).
---------------------------------------------------------------------------
    However, under current law, if American parents adopt a 
foreign child, or if a child born abroad to a U.S. citizen 
parent(s) is not considered a citizen at birth, the parent can 
obtain citizenship for the child only by seeking the child's 
admission to the United States and applying for a certificate 
of citizenship for the child to become a citizen. In order to 
receive a certificate of citizenship, the following conditions 
have to be met:
         Lat least one parent is a citizen of the 
        United States, whether by birth or naturalization,
         Lthe child is physically present in the United 
        States pursuant to a lawful admission,
         Lthe child is under 18 and in the legal 
        custody of the citizen parent,
         Lif the child was adopted, the child was 
        adopted before the child reached 16 in an adoption 
        meeting the requirements of the INA \3\, and
---------------------------------------------------------------------------
    \3\ The adoption must meet the requirements of sections 
101(b)(1)(E) or (F) of the INA.
---------------------------------------------------------------------------
         Lif the citizen parent has not been physically 
        present in the United States for a period or periods 
        totaling not less than 5 years, at least two of which 
        were after attaining the age of 14, then 1) the child 
        is residing permanently in the United States with the 
        citizen parent, pursuant to a lawful admission for 
        permanent residence, or 2) a citizen parent of the 
        citizen parent has been physically present in the 
        United States or its outlying possessions for a period 
        or periods totaling not less than 5 years, at least two 
        of which were after attaining the age of 14.\4\
---------------------------------------------------------------------------
    \4\ INA sec. 322(a).
---------------------------------------------------------------------------
    The child must then take and subscribe to the oath of 
allegiance required of an applicant for naturalization unless 
the Attorney General waives this requirement upon finding that 
the child is unable to understand the oath's meaning.\5\ The 
child will then receive a certificate of naturalization.
---------------------------------------------------------------------------
    \5\ INA secs. 322(b), 337(a).
---------------------------------------------------------------------------
    The INA also provides two mechanisms for conferring 
automatic citizenship on an alien child when an alien parent 
naturalizes. First, if a child is born overseas to a U.S. 
citizen parent and an alien parent, and the alien parent later 
naturalizes, the child automatically becomes a citizen if two 
conditions are met: (1) the parent's naturalization occurs when 
the child is under 18 and (2) the child is residing in the 
United States pursuant to a lawful admission for permanent 
residence at the time of the parent's naturalization or 
thereafter and begins to reside permanently in the United 
States while under 18.\6\ This provision applies only to an 
adopted child who is residing in the United States pursuant to 
a lawful admission for permanent residence in the custody of 
the adoptive parents at the time of naturalization of the 
adoptive parent.\7\
---------------------------------------------------------------------------
    \6\ INA sec. 320(a).
    \7\ INA sec. 320(b).
---------------------------------------------------------------------------
    Second, if both parents are aliens (or one is an alien and 
the other has lost his or her U.S. citizenship), the child 
automatically becomes a citizen when:
         Lboth parents naturalize or the surviving 
        parent naturalizes or the parent with legal custody of 
        the child pursuant to a legal separation naturalizes or 
        the mother naturalizes if the child was born out of 
        wedlock (and paternity has not been established by 
        legitimization),
         Lthe naturalization takes place when the child 
        is under 18, and
         Lthe child is residing in the United States 
        pursuant to a lawful admission for permanent residence 
        at the time of the naturalization of the parent last 
        naturalized or thereafter begins to reside permanently 
        in the United States while under 18.\8\
---------------------------------------------------------------------------
    \8\ INA sec. 321(a). This provision only applies to an adopted 
child who is residing in the United States pursuant to a lawful 
admission for permanent residence in the custody of the adoptive 
parent(s) at the time of naturalization of the adoptive parent(s). INA 
sec. 321(b).
---------------------------------------------------------------------------
    Current law can beneficially be streamlined in a way that 
will benefit families with foreign-born children while 
``untangl[ing] the complex and duplicative provisions of the 
Immigration and Nationality Act relating to citizenship of 
children.'' \9\ Automatic citizenship for the foreign-born 
children will spare parents the delays and expense of the 
process they must currently follow to procure citizenship for 
their children. This is a particular hardship for parents of 
adopted children, who have already gone through the costly and 
cumbersome adoption process with the INS and the State 
Department. Automatic citizenship would also ensure that 
children are not deprived of U.S. citizenship because their 
parents did not realize they had to go through the certificate 
of citizenship process after bringing the children to the 
United States.
---------------------------------------------------------------------------
    \9\ Letter from Robert Raben, Assistant Attorney General, U.S. 
Department of Justice, to Henry J. Hyde, chairman, House Judiciary 
Committee, at 4 (July 18, 2000).
---------------------------------------------------------------------------
B. H.R. 2883
    The bill as introduced dealt solely with foreign-born 
adopted children and provided that once brought to the United 
States by their U.S. citizen parent(s) they would be considered 
citizens at birth. The Justice Department and State Department 
have expressed ``serious concerns'' with this approach, being 
opposed to the ``retroactive'' granting of citizenship to 
adopted children ``based entirely on events and conditions 
occurring after birth.'' \10\ Both agencies have expressed the 
view that a unilateral redefinition of citizenship at birth 
would adversely affect U.S. relations with foreign governments 
and would create inequities between adopted children and other 
children of U.S. citizens born abroad.
---------------------------------------------------------------------------
    \10\ Letter from Robert Raben to Lamar Smith, chairman, 
Subcommittee on Immigration and Claims, House Judiciary Committee (Nov. 
22, 1999).
---------------------------------------------------------------------------
    The bill as amended in the Judiciary Committee addresses 
the administration's concerns. The bill provides for automatic 
citizenship for foreign-born adopted children when they enter 
the United States--but not retroactively to birth. The bill 
provides the same automatic citizenship upon entry for foreign-
born children of a U.S. citizen(s) who are not considered 
citizens at birth under current law. And the bill utilizes this 
same process for children receiving citizenship on the basis of 
a parent(s) naturalizing.
    The bill provides that a child will automatically become a 
U.S. citizen when the following conditions are met:
         Lat least one parent of the child is a citizen 
        of the United States, whether by birth or 
        naturalization,
         Lthe child is under 18, and
         Lthe child is residing in the United States in 
        the legal and physical custody of the citizen parent 
        pursuant to a lawful admission for permanent residence.
    In the case of an adopted child, the adoption must meet the 
requirements of current law contained in section 101(b)(1)(E) 
and (F) of the INA.
    The bill further provides that foreign-born children of 
U.S. parents who are temporarily present in the United States 
but intend to reside abroad will continue to be eligible to 
apply for citizenship as they do under current law.

                                Hearings

    The committee's Subcommittee on Immigration and Claims held 
1 day of hearings on H.R. 2883 on February 17, 2000. Testimony 
was received from Gerri Ratliff, Director of Business Process 
and Reengineering Immigration Services Division and Acting 
Director of the Office of Congressional Relations, U.S. 
Immigration and Naturalization Service; Edward A. Betancourt, 
Director of the Office of Policy Review and Interagency 
Liaison, Overseas Citizens Services, Bureau of Consular 
Affairs, U.S. State Department; Susan Soon-Keum Cox, Vice 
President of Public Policy and External Affairs, Holt 
International Children's Services; and Ms. Maureen Evans, 
Executive Director, Joint Council on International Children's 
Services.

                        Committee Consideration

    On July 11, 2000, the Subcommittee on Immigration and 
Claims met in open session and ordered favorably reported the 
bill H.R. 2883 by a voice vote, a quorum being present. On July 
26, 2000, the committee met in open session and ordered 
favorably reported the bill H.R. 2883 with amendment by voice 
vote, a quorum being present.

                         Vote of the Committee

    The bill was ordered favorably reported by a voice vote. 
One amendment was adopted by voice vote. The amendment, offered 
by Mr. Delahunt, substituted the first four sections of H.R. 
3667 for the text of the bill as introduced.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the committee reports that the 
findings and recommendations of the committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

                Committee on Government Reform Findings

    No findings or recommendations of the Committee on 
Government Reform were received as referred to in clause 
3(c)(4) of rule XIII of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of House Rule XIII is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the committee sets forth, with 
respect to the H.R. 2883, the following estimate and comparison 
prepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, August 11, 2000.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2883, the Child 
Citizenship Act of 2000.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz, who can be reached at 226-2860.
            Sincerely,
                                  Dan L. Crippen, Director.

Enclosure

cc:
        Honorable John Conyers Jr.
        Ranking Democratic Member
H.R. 2883--Child Citizenship Act of 2000.
    CBO estimates that enacting H.R. 2883 would have no 
significant net effect on the federal budget. Because the 
legislation would affect direct spending, pay-as-you-go 
procedures would apply. However, we estimate that the 
additional spending from enacting this legislation would be 
less than $500,000 a year. H.R. 2883 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act, but it could result in a very 
small increase in the state share of benefits paid under 
certain federal entitlement programs.
    H.R. 2883 would grant automatic U.S. citizenship to certain 
foreign-born children under the age of 18 who become permanent 
U.S. residents. In order to qualify, one of the child's parents 
would have to be a citizen and meet certain U.S. residence 
requirements. Under current law, such children may choose to 
become citizens by filing an application with the Immigration 
and Naturalization Service (INS) for a certificate of 
citizenship and paying a $160 fee (the fee is $125 for children 
adopted overseas).
    In fiscal year 1999, CBO estimates that INS collected 
several million dollars in citizenship fees for foreign-born 
children and spent roughly the same amount for related 
administrative costs. Under H.R. 2883, it is not clear how the 
provision of automatic citizenship would be documented or 
whether these children would need or desire a certificate of 
citizenship. CBO expects that fewer children would apply for 
certificates of citizenship if the bill is enacted, because 
certificates would no longer be necessary to obtain 
citizenship. Thus, we estimate that enacting H.R. 2883 would 
reduce both fee collections and spending by the INS. The 
resulting net effect on outlays would be negligible.
    Because enacting H.R. 2883 would automatically grant 
citizenship to certain foreign-born children of U.S. citizens, 
some of these children could receive certain public benefits 
for which they would not have been eligible as legal permanent 
residents. CBO estimates that direct spending on benefits for 
such children would increase by less than $500,000 a year.
    On November 4, 1999, CBO transmitted a cost estimate for S. 
1485, the Adopted Orphans Citizenship Act, as passed by the 
Senate on October 26, 1999. That legislation is similar to H.R. 
2883 but applied only to certain foreign-born children who are 
adopted. CBO estimated that the net effect on the federal 
budget would be insignificant.
    The CBO staff contact for this estimate is Mark Grabowicz, 
who can be reached at 226-2860. This estimate was approved by 
Robert A. Sunshine, Assistant Director for Budget Analysis.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the committee finds the authority for 
this legislation in Article I, section 8, clause 4 of the 
Constitution.

               Section-by-Section Analysis and Discussion

Section 1. Short title
    This act may be cited as the ``Child Citizenship Act of 
2000.''
Section 2. Automatic acquisition of citizenship for certain children 
        born outside United States
    Section 2(a) of the bill amends section 320 of the 
Immigration and Nationality Act to provide certain children 
born outside the United States with automatic U.S. citizenship. 
Subsection 320(a) provides that a child meeting all of the 
following conditions automatically becomes a U.S. citizen at 
the time the conditions are fulfilled:
         Lat least one parent of the child is a citizen 
        of the United States, whether by birth or 
        naturalization,
         Lthe child is under 18, and
         Lthe child is residing in the United States in 
        the legal and physical custody of the citizen parent 
        pursuant to a lawful admission for permanent residence.
    Subsection 320(b) provides that subsection (a) shall apply 
to a child adopted by a U.S. citizen parent if the child 
satisfies the requirements for being a child under section 
101(b)(1)(E) or (F).
    Subsection 2(b) of the bill makes a clerical amendment.
Section 3. Acquisition of certificate of naturalization for certain 
        children born outside United States
    Section 3 of the bill amends section 322 of the INA to 
provide for the acquisition of certificates of naturalization 
by certain children born outside of the United States. 
Subsection 322(a) provides that a parent who is a citizen of 
the United States may apply for naturalization on behalf of a 
child born outside of the United States, and that the Attorney 
General shall issue a certificate of naturalization to such 
parent upon proof (to the satisfaction of the Attorney 
General), that the following conditions have been fulfilled:
         Lat least one parent is a citizen of the 
        United States, whether by birth or naturalization,
         Lthe U.S. citizen parent (1) has been 
        physically present in the United States or its outlying 
        possessions for a period or periods totaling not less 
        than 5 years, at least two of which were after 
        attaining the age of 14, or (2) has a citizen parent 
        who has been physically present in the United States or 
        its outlying possessions for a period or periods 
        totaling not less than 5 years, at least two of which 
        were after attaining the age of 14,
         Lthe child is under 18, and
         Lthe child is residing outside of the United 
        States in the legal and physical custody of the citizen 
        parent, is temporarily present in the United States 
        pursuant to a lawful admission, and is maintaining such 
        lawful status.
    Subsection 322(b) provides that upon approval of the 
application (which may be filed from abroad) and upon taking 
and subscribing before an officer of the Immigration and 
Naturalization Service within the United States to the oath of 
allegiance required by the INA of an applicant for 
naturalization (which may be waived by the Attorney General if 
in her opinion the child is unable to understand its meaning, 
as provided in INA sec. 337(a)), the child shall become a 
citizen of the United States and shall be furnished by the 
Attorney General with a certificate of naturalization.
    Subsection 322(c) provides that subsections (a) and (b) 
shall apply to a child adopted by a U.S. citizen parent if the 
child satisfies the requirements for being a child under INS 
sec. 101(b)(1)(E) or (F).
    Subsection 3(b) of the bill makes a clerical amendment.
Section 4. Conforming amendment
    Section 4 of the bill repeals section 321 of the INA and 
items relating to the section in the table of contents.
Section 5. Effective date
    Section 5 of the bill provides that it shall take effect 
120 days after the date of enactment.

                              Agency Views

                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                     Washington, DC, July 18, 2000.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: This letter presents the views of the 
Justice Department on HR 2883, the ``Adopted Orphans 
Citizenship Act.'' The Department favors measures to streamline 
the acquisition of United States citizenship by adopted 
children of United States citizen parents. However, we oppose 
HR 2883 as currently drafted because: (1) it is inconsistent 
with long-standing, fundamental principles of United States 
nationality law; and (2) it would inject confusion and 
uncertainty into the law. The Department, in close consultation 
with the Department of State, however, has prepared alternate 
legislation for consideration, which we believe not only will 
eliminate the current inequities in the acquisition of 
citizenship by biological and adopted children but also 
streamline the citizenship documentation process. The 
legislation provides for automatic acquisition of citizenship 
for those children who have been admitted for lawful permanent 
residence. Much of this legislation has been introduced as HR 
3667 by Representatives Delahunt and Gejdenson. As we stated in 
testimony presented before the Subcommittee on Immigration and 
Claims on February 17, 2000, we support the adoption provision 
in HR 3667.
    HR 2883 would make an alien child under the age of 18 years 
adopted by a United States citizen parent meeting certain 
physical presence requirements a national and citizen of the 
United States at birth if the child was physically present in 
the United States with the citizen parent, was lawfully 
admitted for permanent residence, and sought documentation as a 
United States citizen while under the age of 18. By placing 
this provision in section 301 of the Immigration and 
Nationality Act (``INA''), HR 2883 attempts to make individuals 
retroactively citizens ``at birth'' based entirely on events 
and conditions occurring after birth. In so doing, HR 2883 
confuses the fundamental distinction between the acquisition of 
citizenship at birth and the acquisition of citizenship through 
conferral after birth, or ``naturalization.'' Section 
101(a)(23) of the INA defines naturalization as ``the 
conferring of nationality of a state upon a person after birth, 
by any means whatsoever.''
    A nation may legitimately claim the allegiance of an 
individual in one of three ways: 1) birth on its soil (jus 
soli); 2) birth to a citizen parent (jus sanguinis); or 3) a 
voluntary choice after birth by a qualifying individual 
(naturalization). Citizenship by birth is conferred 
automatically and is not a matter of voluntary choice. HR 2883 
attempts to confer citizenship by birth based on later, 
voluntary actions by the alien or his adoptive parent. In 
addition to contradicting the statutory definition of 
naturalization, this would create a legal fiction in which the 
alien was deemed always to have been a United States citizen. 
However, this is not so. Neither at the time of the child's 
birth abroad to alien parents nor at any other time prior to 
the child's adoption by a United States citizen, did the United 
States have a legitimate or supportable claim to the allegiance 
of the child under the customary law of nations.
    To claim by later decree that a child who undeniably was a 
citizen of a foreign state by birth under all applicable fact 
and law at that time, in fact was a United States citizen from 
birth could have harmful consequences. Presumably, consistent 
with HR 2883's provision that the citizenship claim of the 
United States extends back to the time of the child's birth, 
the foreign state could conclude that the child never was its 
citizen. The possible implications of this conclusion--
depending on the nation--could reach issues such as possible 
claims for reimbursement of educational, health care, and other 
benefits provided to the child before adoption, based upon the 
mistaken impression that the child was a citizen of that state, 
particularly if such benefits are not available to that state's 
citizens temporarily residing in the United States. 
Alternatively, the foreign state could view a retroactive award 
of citizenship as an action in derogation of its sovereignty, 
which would not be conducive to cooperative relations with that 
country in matters of international adoptions. In other words, 
the retroactive revocation of the child's foreign citizenship 
could unfortunately ensue as a result of the retroactive 
conferral of United States citizenship at birth. In light of 
the provisions of HR 2883, the United States would be in no 
position to object to such an action on the part of the foreign 
state.
    The confusion HR 2883 would engender is not justified by 
any meaningful advantage to foreign-born, adopted children who 
otherwise would be naturalized upon fulfillment of the 
necessary conditions. Naturalized citizens of the United States 
stand upon an equal footing, in terms of their rights and 
privileges, with native-born citizens. See, e.g., Schneider v. 
Rusk, 377 U.S. 163, 165 (1964). The only exception to this 
principle is the limitation of eligibility for the office of 
President of the United States to ``natural born'' citizens in 
Article II of the Constitution. This clause has never been 
definitively interpreted by the Supreme Court, and HR 2883 does 
not and cannot resolve questions as to its meaning, either.
    In addition, HR 2883 may in certain instances favor 
adopted, non-citizen children of United States citizens over 
biological, non-citizen children of United States citizens 
(i.e., in that certain adopted children will receive the 
benefit of citizenship at birth, while biological children, 
potentially of the same United States citizen parents, would 
not). For example, if two United States citizen parents, 
neither of whom has resided in the United States, bore a 
biological child abroad, under current law that child would not 
be a United States citizen at birth. The parents would have to 
immigrate the child to the United States and apply for 
naturalization before the child could become a United States 
citizen. Suppose that this same couple, after the birth of the 
biological child, took up residence in the United States for 
five years and then adopted an alien child. Under HR 2883, the 
adopted child would become a United States citizen at birth 
upon attaining lawful permanent residence while under 18 years 
of age, while the biological child could never be a citizen at 
birth.
    This retroactive conferral of citizenship on a class of 
adopted children would also create unacceptable differences 
between adopted children and other persons who acquire United 
States citizenship through naturalization. In fact, the 
proposed legislation would bestow greater benefits upon 
children with no nexus to the United States at birth than those 
currently enuring to children born abroad who, while having a 
United States citizen parent at birth, do not acquire United 
States citizenship pursuant to the principle of jus sanguinis. 
For example, a child born overseas to a United States citizen 
parent who is unable to transmit citizenship at birth in 
accordance either with paragraphs (c), (d), (e), and (g) of 
section 301 or with paragraphs (a) and (c) of section 309 of 
the INA, can apply for a certificate of citizenship under 
section 322 of the INA. Such citizenship does not relate back 
to the child's birth and is deemed to have been obtained 
through naturalization.
    Similarly, a child born outside of the United States to an 
alien parent and United States citizen parent who is not 
capable of transmitting citizenship also conceivably can 
naturalize as a United States citizen in accordance with 
section 320 of the INA. Again, the individual acquires 
citizenship via the naturalization process as set forth in 
chapter 2 of title III of the INA. Such citizenship only 
becomes effective at the time of the alien parent's 
naturalization. We note that adopted children currently are 
able to take advantage of the provisions of sections 320 and 
322.
    In November 1999, we forwarded to the Congress alternative 
draft legislation that we believe untangles the complex and 
duplicative provisions of the Immigration and Nationality Act 
relating to citizenship of children. This legislation 
eliminates inequities in the current law by creating a standard 
set of conditions for foreign-born children of United States 
citizens to acquire citizenship. This legislation also 
eliminates in most instances the necessity for the Immigration 
and Naturalization Service to adjudicate applications for 
children adopted by U.S. citizen parents to become citizens of 
the United States after having been admitted as lawful 
permanent residents. This legislation provides for fair 
treatment of all biological and adopted children in terms of 
acquisition of United States citizenship. As we indicated 
above, we support the adoption provision contained in HR 3667, 
which is substantially similar to the Administration's 
proposal.
    In conclusion, the Department reiterates its support for 
efforts to streamline the acquisition of United States 
citizenship by adopted children of United States citizen 
parents. However, HR 2883 would inject confusion and 
uncertainty into the law. We would be glad to work with 
Congress on alternative ways of achieving this goal.
    Thank you for the opportunity to present our views. Please 
do not hesitate to call upon us if we may be of further 
assistance. The Office of Management and Budget has advised us 
that, from the standpoint of the Administration's program, 
there is no objection to the submission of this letter.
            Sincerely,
                  Robert Raben, Assistant Attorney General.

                          U.S. Department of State,
                                       Legislative Affairs,
                                     Washington, DC, July 19, 2000.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: This letter presents the views of the 
Department of State on H.R. 2883, the ``Adopted Orphans 
Citizenship Act.'' We support the goals of the bill; however, 
we oppose H.R. 2883 as currently drafted.
    We believe the current procedures for naturalizing adopted 
children pursuant to Title III of Chapter 2 of the Immigration 
and Nationality Act (INA) can and should be simplified. In this 
respect, the Department supports the language and approach 
detailed in H.R. 3667, the ``Child Citizenship Act of 2000,'' 
introduced by Representatives William Delahunt and Sam 
Gejdenson which tracks legislation forwarded to the Congress by 
the Department of Justice in November, 1999.
    While we strongly advocate diminishing the procedural 
burdens placed on adoptive parents in conjunction with securing 
U.S. citizenship for their children, we believe that any 
measures toward this end should be taken in the context of 
Chapter 2, ``Nationality Through Naturalization'' of Title III. 
These changes should not be incorporated in Chapter 1, 
``Nationality At Birth And By Collective Naturalization'' of 
this same title. Citizenship at birth can be conferred whether 
by birth in the United States (jus soli) or through birth to a 
U.S. citizen parent or parents able to transmit citizenship 
(jus sanguinis). According to Section 101(a)(23) of the INA, 
naturalization is defined as the acquisition of citizenship 
after birth by any means.
    We continue to be of the view that to confer citizenship at 
birth upon an adoptive child born overseas, as proposed in H.R. 
2883, is to engage in a legal and factual fiction that would 
create unacceptable inequities between adopted children and 
other persons who acquire U.S. citizenship through 
naturalization. Citizenship at birth would bestow greater 
benefits upon children with no nexus to the U.S. at birth than 
to certain children born abroad who, while having a U.S. 
citizen parent at birth, do not automatically acquire U.S. 
citizenship from that parent.
    H.R. 2883 would confer U.S. citizenship retroactive to the 
birth of a child who may have no ties to the United States or 
any of its citizens at the time of birth. By sharp contrast, 
under current law, a biological child born to a U.S. citizen 
parent who lacked the requisite period of physical presence in 
the United States does not acquire U.S. citizenship at birth 
despite the existence of the biological relationship to a U.S. 
citizen at the moment of birth. Moreover, if the biological 
child is able to qualify for U.S. citizenship subsequent to 
birth, the conferral of U.S. citizenship is not retroactive to 
birth but occurs as of the date he or she fills the statutory 
qualifications of Section 320, 321, or 322 of the INA. Thus, 
under H.R. 2883, a child with no connection to the U.S. at 
birth could acquire U.S. citizenship retroactive to birth, 
whereas a child whose connection to the U.S. exists at birth, 
but is deemed insufficient by law, cannot.
    An additional concern is that a foreign state might view a 
retroactive award of citizenship as a derogation of its 
sovereignty, which could cause a lack of cooperation in 
international adoption.
    In conclusion, the Department would be pleased to work with 
the Congress to ensure the enactment of legislation to 
facilitate and simplify the naturalization of foreign-born 
adopted children in a nondiscriminatory manner along the lines 
proposed by the Department of Justice and Representatives 
Delahunt and Gejdenson.
    Thank you for your consideration of this matter and 
permitting us to offer our views.
            Sincerely,
                       Barbara Larkin, Assistant Secretary.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

                    IMMIGRATION AND NATIONALITY ACT

           *       *       *       *       *       *       *


                Title III--Nationality and Naturalization

     * * * * * * *

               chapter 2--nationality through naturalization

Sec. 310.  Naturalization authority.
     * * * * * * *
[Sec. 320.  Children born outside of United States of one alien and one 
          citizen parent.]
Sec. 320.  Children born outside United States; conditions under which 
          citizenship automatically acquired.
[Sec. 321.  Children born outside of United States of alien parent.
[Sec. 322. Child born outside the United States; application for 
          certificate of citizenship requirements.]
Sec. 322.  Children born and residing outside United States; conditions 
          for acquiring certificate of naturalization.
     * * * * * * *

               TITLE III--NATIONALITY AND NATURALIZATION

           *       *       *       *       *       *       *


             Chapter 2--Nationality Through Naturalization

           *       *       *       *       *       *       *


   [child born outside of united states of one alien and one citizen 
      parent at time of birth; conditions under which citizenship 
                         automatically acquired

    [Sec. 320. (a) A child born outside of the United States, 
one of whose parents at the time of the child's birth was an 
alien and the other of whose parents then was and never 
thereafter ceased to be a citizen of the United States, shall, 
if such alien parent is naturalized, become a citizen of the 
United States, when--
            [(1) such naturalization takes place while such 
        child is under the age of eighteen years; and
            [(2) such child is residing in the United States 
        pursuant to a lawful admission for permanent residence 
        at the time of naturalization or thereafter and begins 
        to reside permanently in the United States while under 
        the age of eighteen years.
    [(b) Subsection (a) of this section shall apply to an 
adopted child only if the child is residing in the United 
States at the time of naturalization of such adoptive parent, 
in the custody of his adoptive parents, pursuant to a lawful 
admission for permanent residence.]

children born outside united states; conditions under which citizenship 
                         automatically acquired

    Sec. 320. (a) A child born outside of the United States 
automatically becomes a citizen of the United States when all 
of the following conditions have been fulfilled:
            (1) At least one parent of the child is a citizen 
        of the United States, whether by birth or 
        naturalization.
            (2) The child is under the age of eighteen years.
            (3) The child is residing in the United States in 
        the legal and physical custody of the citizen parent 
        pursuant to a lawful admission for permanent residence.
    (b) Subsection (a) shall apply to a child adopted by a 
United States citizen parent if the child satisfies the 
requirements for being a child under subparagraph (E) or (F) of 
section 101(b)(1).

[child born outside of united states of alien parent; conditions under 
                which citizenship automatically acquired

    [Sec. 321. (a) A child born outside of the United States of 
alien parents, or of an alien parent and a citizen parent who 
has subsequently lost citizenship of the United States, becomes 
a citizen of the United States upon fulfillment of the 
following conditions:
    [(1) The naturalization of both parents; or
    [(2) The naturalization of the surviving parent if one of 
the parents is deceased; or
    [(3) The naturalization of the parent having legal custody 
of the child when there has been a legal separation of the 
parents or the naturalization of the mother if the child was 
born out of wedlock and the paternity of the child has not been 
established by legitimation; and if
    [(4) Such naturalization takes place while such child is 
under the age of eighteen years; and
    [(5) Such child is residing in the United States pursuant 
to a lawful admission for permanent residence at the time of 
the naturalization of the parent last naturalized under clause 
(1) of this subsection, or the parent naturalized under clause 
(2) or (3) of this subsection, or thereafter begins to reside 
permanently in the United States while under the age of 
eighteen years.
    [(b) Subsection (a) of this section shall apply to an 
adopted child only if the child is residing in the United 
States at the time of naturalization of such adoptive parent or 
parents, in the custody of his adoptive parent or parents, 
pursuant to a lawful admission for permanent residence.

 [child born outside the united states; application for certificate of 
                        citizenship requirements

    [Sec. 322. (a) A parent who is a citizen of the United 
States may apply to the Attorney General for a certificate of 
citizenship on behalf of a child born outside the United 
States. The Attorney General shall issue such a certificate of 
citizenship upon proof to the satisfaction of the Attorney 
General that the following conditions have been fulfilled:
            [(1) At least one parent is a citizen of the United 
        States, whether by birth or naturalization.
            [(2) The child is physically present in the United 
        States pursuant to a lawful admission.
            [(3) The child is under the age of 18 years and in 
        the legal custody of the citizen parent.
            [(4) If the citizen parent is an adoptive parent of 
        the child, the child was adopted by the citizen parent 
        before the child reached the age of 16 years (except to 
        the extent that the child is described in clause (ii) 
        of subparagraph (E) or (F) of section 101(b)(1)) and 
        the child meets the requirements for being a child 
        under either of such subparagraphs.
            [(5) If the citizen parent has not been physically 
        present in the United States or its outlying 
        possessions for a period or periods totaling not less 
        than five years, at least two of which were after 
        attaining the age of fourteen years--
                    [(A) the child is residing permanently in 
                the United States with the citizen parent, 
                pursuant to a lawful admission for permanent 
                residence, or
                    [(B) a citizen parent of the citizen parent 
                has been physically present in the United 
                States or its outlying possessions for a period 
                or periods totaling not less than five years, 
                at least two of which were after attaining the 
                age of fourteen years.
    [(b) Upon approval of the application (which may be filed 
abroad) and, except as provided in the last sentence of section 
337(a), upon taking and subscribing before an officer of the 
Service within the United States to the oath of allegiance 
required by this Act of an applicant for naturalization, the 
child shall become a citizen of the United States and shall be 
furnished by the Attorney General with a certificate of 
citizenship.
    [(c) Subsection (a) of this section shall apply to the 
adopted child of a United States citizen adoptive parent if the 
conditions specified in such subsection have been fulfilled.]

   children born and residing outside united states; conditions for 
                acquiring certificate of naturalization

    Sec. 322. (a) A parent who is a citizen of the United 
States may apply for naturalization on behalf of a child born 
outside of the United States. The Attorney General shall issue 
a certificate of naturalization to such parent upon proof, to 
the satisfaction of the Attorney General, that the following 
conditions have been fulfilled:
            (1) At least one parent is a citizen of the United 
        States, whether by birth or naturalization.
            (2) The United States citizen parent--
                    (A) has been physically present in the 
                United States or its outlying possessions for a 
                period or periods totaling not less than five 
                years, at least two of which were after 
                attaining the age of fourteen years; or
                    (B) has a citizen parent who has been 
                physically present in the United States or its 
                outlying possessions for a period or periods 
                totaling not less than five years, at least two 
                of which were after attaining the age of 
                fourteen years.
            (3) The child is under the age of eighteen years.
            (4) The child is residing outside of the United 
        States in the legal and physical custody of the citizen 
        parent, is temporarily present in the United States 
        pursuant to a lawful admission, and is maintaining such 
        lawful status.
    (b) Upon approval of the application (which may be filed 
from abroad) and, except as provided in the last sentence of 
section 337(a), upon taking and subscribing before an officer 
of the Service within the United States to the oath of 
allegiance required by this Act of an applicant for 
naturalization, the child shall become a citizen of the United 
States and shall be furnished by the Attorney General with a 
certificate of naturalization.
    (c) Subsections (a) and (b) shall apply to a child adopted 
by a United States citizen parent if the child satisfies the 
requirements for being a child under subparagraph (E) or (F) of 
section 101(b)(1).

           *       *       *       *       *       *       *


                                  
