FURTADO , 28 I. & N. Dec. 794 ( 2024 )

Cite as 28 I&N Dec. 794 (BIA 2024) Interim Decision #4075
Matter of Delis Ismael FURTADO, Beneficiary of a visa petition
filed by Helena Eloisa Johnson, Petitioner
Decided May 17, 2024
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) A petitioner seeking approval of a Form I-130 for an adopted child from a country that
is a party to the Convention on Protection of Children and Co-Operation in Respect of
Intercountry Adoption, opened for signature May 29, 1993, S. Treaty Doc. No. 105-51,
1870 U.N.T.S. 167 (entered into force May 1, 1995; for the United States Apr. 1, 2008),
should provide, regardless of the beneficiary’s length of United States residence:
(1) a written statement from the Central Authority of the child’s country of origin stating
that it is aware of the child’s presence in the United States and of the adoption, and that
it has determined that the child is not habitually resident in the country of origin; and
(2) an adoption order or amended adoption order incorporating the language of the
statement from the Central Authority.
(2) An adopted child will not be considered habitually resident in the United States unless
the petitioner shows that the Central Authority of the child’s country of origin did not
respond to the request for a habitual residence statement, that the Central Authority
responded that it would not write a habitual residence statement, or that the United
States Department of State has confirmed that the Central Authority does not issue
habitual residence statements.
FOR THE PETITIONER: Brigite Melo-Cronin, Esquire, Randolph, Massachusetts
FOR THE DEPARTMENT OF HOMELAND SECURITY: Maura Ooi, Associate
Counsel
BEFORE: Board Panel: GREER and GOODWIN, Appellate Immigration Judges;
PEPPER, Temporary Appellate Immigration Judge.
GOODWIN, Appellate Immigration Judge:
In a decision dated August 18, 2021, the Director of the National Benefits
Center (“Director”) of United States Citizenship and Immigration Services
(“USCIS”), denied the Form I-130, Petition for Alien Relative, filed by the
petitioner on behalf of the beneficiary as the adopted child of a United States
citizen pursuant to section 201(b)(2)(A)(i) of the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1151(b)(2)(A)(i) (2018). The petitioner
appealed from that decision. During the pendency of the appeal, the Board
requested supplemental briefing on the applicability of the Convention on
Protection of Children and Co-Operation in Respect of Intercountry
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Adoption, opened for signature May 29, 1993, S. Treaty Doc. No. 105-51,
1870 U.N.T.S. 167 (entered into force May 1, 1995; for the United States
Apr. 1, 2008) (“Hague Convention”). See 42 U.S.C. §§ 14901–14954 (2018)
(implementing the Hague Convention); 22 C.F.R. § 96.17 (2024) (discussing
the Hague Convention’s effective date). The Board received a supplemental
brief from the Department of Homeland Security (“DHS”). The petitioner’s
appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The beneficiary, whose country of origin is Cabo Verde, entered the
United States on a B-2 visitor visa in 2013. On May 2, 2017, the petitioner,
who is the beneficiary’s grandmother, adopted the beneficiary in
Massachusetts. After the adoption, the petitioner filed a Form I-130 on the
beneficiary’s behalf, seeking to classify him as the adopted child of a United
States citizen.
On April 1, 2020, the Director issued a Notice of Intent to Deny
(“NOID”) the visa petition, stating that the petitioner had not submitted
sufficient evidence to show that the adoption falls outside the scope of the
Hague Convention. In relevant part, the NOID stated that the petitioner had
not shown that at the time of the adoption, the beneficiary was not habitually
resident in Cabo Verde. The NOID further stated that the petitioner could
establish this by submitting: “(1) a written statement from the Central
Authority of [Cabo Verde] indicating that it is aware of the child’s presence
in the United States and of the . . . adoption, and that it has determined that
the child is not habitually resident in that country, and (2) an adoption order
or amended adoption order incorporating the language of the statement.”
The Director informed the petitioner that if she attempted to contact the
Central Authority in Cabo Verde and did not receive a timely response, she
should advise the Director of her efforts and then submit evidence to show
that prior to the adoption, the beneficiary resided in the United States for a
substantial period of time and established compelling ties in the United
States.
In response to the NOID, the petitioner submitted additional documents
to show that the beneficiary had resided with her in the United States since
2013. On August 18, 2021, the Director denied the visa petition, finding that
the evidence submitted did not establish that the beneficiary satisfies the
definition of an adopted child under section 101(b)(1)(E) of the INA,
8 U.S.C. § 1101(b)(1)(E) (2018). Specifically, the Director found that the
petitioner did not submit sufficient evidence to show that the adoption falls
outside the scope of the Hague Convention because she did not submit a
statement of habitual residence from the Central Authority of Cabo Verde or
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provide evidence that she tried to obtain this statement. The petitioner
appeals this decision.
II. ISSUE
The contested issue is whether a petitioner who has filed a Form I-130 on
behalf of an adopted child whose country of origin is a party to the Hague
Convention must provide either a statement from the Central Authority of
the adoptee’s home country or evidence that she attempted to obtain such a
statement. We review this issue de novo. 8 C.F.R. § 1003.1(d)(3)(iii) (2020).
III. ANALYSIS
A petitioner seeking to classify an adopted child as the child of a United
States citizen under section 201(b)(2)(A)(i) of the INA, 8 U.S.C.
§ 1151(b)(2)(A)(i), must establish that the beneficiary falls within the
definition of a “child” pursuant to section 101(b)(1) of the INA, 8 U.S.C.
§ 1101(b)(1). An adopted child must generally meet the requirements in
section 101(b)(1)(E) of the INA, 8 U.S.C. § 1101(b)(1)(E). If the adopted
child is from a country that is a party to the Hague Convention, however, a
more rigorous set of requirements applies. See INA § 101(b)(1)(G), 8 U.S.C.
§ 1101(b)(1)(G). The beneficiary’s home country, Cabo Verde, is a party to
the Hague Convention. See U.S. Dep’t of State, Country-Specific Adoption
Information, Cabo Verde—Foreign Authorization,” 2022 WL 1470257(May 5, 2022).
A. Hague Convention Adoption Process
The Hague Convention is intended:
a. to establish safeguards to ensure that intercountry adoptions take place in the
best interests of the child and with respect for his or her fundamental rights as
recognized in international law;
b. to establish a system of co-operation amongst Contracting States to ensure that
those safeguards are respected and thereby prevent the abduction, the sale of, or
traffic in children;
c. to secure the recognition in Contracting States of adoptions made in accordance
with the Convention.
Hague Convention, Art. 1. As a party to the Hague Convention, the United
States must adhere to the agreement in all cases in which a United States
citizen adopts a child from a Convention country. See Hague Convention,
Art. 2(1); see also Intercountry Adoption Act of 2000, Pub. L. 106-279, § 2,
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114 Stat. 825, 826 (codified at 42 U.S.C. § 14901) (implementing the Hague
Convention into United States’ law). The Hague Convention applies to an
adoption where: (1) the child is habitually resident in one Convention
country, (2) the adoptive parent is habitually resident in a different
Convention country, and (3) the child has immigrated or will immigrate to
the adoptive parent’s country based on the adoption. Hague Convention,
Art. 2(1).
USCIS has established a petitioning process for Hague Convention
adoptions by United States citizens that differs significantly from the
Form I-130 petitioning process and requires the filing and adjudication of a
Form I-800A and a Form I-800. See 8 C.F.R. §§ 204.300–204.314 (2024).
The process requires the petitioner to file the Form I-800A, Application for
Determination of Suitability to Adopt a Child from a Convention Country,
before adopting the child. See 8 C.F.R. §§ 204.306(b)(1), 204.310; see also
Hague Process, U.S. Citizenship and Immigr. Servs., https://www.uscis.gov
/adoption/immigration-through-adoption/hague-process (last visited May 5,
2024). The Form I-800A must be filed with documentation that a home study
has been completed. 8 C.F.R. § 204.310(a)(3)(viii). Once the Form I-800A
is approved, the petitioner must apply to obtain a proposed adoptive
placement with the Hague Convention country of origin’s Central Authority.
Hague Process, supra. The Form I-800, Petition to Classify Convention
Adoptee as an Immediate Relative, must also be filed before adoption. Id.,
see also 8 C.F.R. § 204.309(b)(1). The Form I-800 process applies even
when a child is present in the United States if the adoption was entered on or
after the Convention effective date and the child’s habitual residence
immediately before arrival in the United States was in a Convention country.
See 8 C.F.R. § 204.2(d)(2)(vii)(F) (2024). The Hague Convention adoption
process should be used in all adoptions of beneficiaries from Hague
Convention countries after the Convention effective date, with the limited
exceptions discussed below.
B. Exceptions to the Hague Convention Adoption Process
A Form I-130 petition may be filed on behalf of a child from a Convention
country who was adopted on or after the effective date of the Hague
Convention only if the petitioner shows that at the time of the adoption, the
petitioner was not habitually resident in the United States, or the beneficiary
was not habitually resident in a Convention country. See 8 C.F.R.
§ 204.2(d)(2)(vii)(D); cf. 8 C.F.R. § 204.2(d)(2)(vii)(F) (“USCIS will not
approve a Form I-130 . . . on behalf of an alien child who is present in the
United States based on an adoption that is entered on or after the Convention
effective date, but whose habitual residence immediately before the child’s
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arrival in the United States was in a Convention country.”). When
adjudicating a Form I-130 in an adoption case, USCIS will make findings
regarding the petitioner’s and the beneficiary’s respective countries of
habitual residence and will determine, based on these findings, whether the
Convention applies. See 5 USCIS Policy Manual, pt. E, ch. 3,
https://www.uscis.gov/policy-manual/volume-5-part-e-chapter-3; see also
8 C.F.R. § 1003.1(d)(3)(iii) (stating that the Board reviews USCIS’ findings
de novo).
The petitioner in this case does not aver that she was habitually resident
outside of the United States at the time of the adoption. See 8 C.F.R.
§ 204.2(d)(2)(vii)(E) (“For purposes of [8 C.F.R. § 204.2(d)(2)(vii)(D)],
USCIS will deem a United States citizen . . . to have been habitually resident
outside the United States, if the citizen satisfies the 2-year joint residence and
custody requirements by residing with the child outside the United States.”).
Therefore, in determining whether the petitioner’s Form I-130 may be
approved, only the beneficiary’s habitual residence is at issue.
C. The Beneficiary’s Habitual Residence
The relevant regulation provides that
[a] child whose classification is sought as a Convention adoptee is, generally,
deemed . . . to be habitually resident in the country of the child’s citizenship. If the
child’s actual residence is outside the country of the child’s citizenship, the child will
be deemed habitually resident in that other country, rather than in the country of
citizenship, if the Central Authority (or another competent authority of the country
in which the child has his or her actual residence) has determined that the child’s
status in that country is sufficiently stable for that country properly to exercise
jurisdiction over the child’s adoption or custody.
8 C.F.R. § 204.303(b).
Although an adopted child residing in the United States may be deemed
to be habitually resident in the United States rather than his or her home
country, the Hague Convention does not specify the evidence that must be
provided to make such a showing. See Hague Conf. on Priv. Int’l L., The
Implementation and Operation of the 1993 Hague Intercountry Adoption
Convention: Guide to Good Practice, Guide No. 1, at 108 (2008),
http://www.hcch.net/upload/adoguide_e.pdf (observing that habitual
residence is generally treated as a factual concept that will be a matter for the
authorities of a Convention country to determine). The relevant regulation
states only that a “child will not be considered to be habitually resident in
any country to which the child travels temporarily, or to which he or she
travels either as a prelude to, or in conjunction with, his or her adoption
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and/or immigration to the United States.” 8 C.F.R. § 204.303(b). The
regulation does not specify what is required to establish that a child is
habitually resident in the United States.
To approve a Form I-130 filed on behalf of an adopted child from a
Convention country, USCIS generally requires: (1) a written statement from
the Central Authority of the child’s country of origin indicating that it is
aware of the child’s presence in the United States and of the adoption, and
that it has determined that the child is not habitually resident in the country
of origin; and (2) an adoption order or amended adoption order incorporating
the language of the statement from the Central Authority. See 5 USCIS
Policy Manual, pt. E, ch. 3(B). If the petitioner does not submit a
determination letter from the designated Central Authority in the child’s
country of origin, USCIS requires a showing that the Central Authority did
not respond to the request for a habitual residence statement, that the Central
Authority responded that it would not write a habitual residence statement,
or that the United States Department of State has confirmed that the Central
Authority does not issue habitual residence statements. 1 Id. at ch. 3(C).
Although internal USCIS policy is not binding on the Board, we
nonetheless find this particular policy requirement persuasive in this case.
See Matter of Triana, 28 I&N Dec. 659, 663 n.4 (BIA 2022); Matter of
Arrabally and Yerrabelly, 25 I&N Dec. 771, 776 n.4 (BIA 2012) (stating that
policy set forth in agency memoranda “is entitled to respect to the extent it
has the ‘power to persuade,’ but it is not binding” (quoting Christensen v.
Harris Cnty., 529 U.S. 576, 587 (2000))). USCIS’ requirement that a
petitioner demonstrate that he or she contacted the foreign Central Authority
is consistent with the United States’ obligations under the Hague Convention.
The Hague Convention aims, in part, to establish a system of cooperation
amongst Convention countries and to ensure that adoptions completed under
the Convention are recognized in other Convention countries. Hague
Convention, Art. 1(b)–(c); see also 42 U.S.C. § 14951 (stating that the United
States will recognize and give full effect to adoptions concluded between two
Convention countries that meet the requirements of the Convention but
became final before the Convention entered into force for the United States).
When adoptions that fall within the scope of the Convention are erroneously
processed as national adoptions, “the authorities in the receiving country are
1
In such cases, USCIS may determine that a child is habitually resident in the United
States if the petitioner demonstrates that the child did not enter the United States for the
purpose of adoption, that the child actually resided in the United States for a substantial
period of time and established compelling ties to the United States, and, for adoptions
occurring after February 3, 2014, that the adoption decree confirms that the Central
Authority of the child’s country of origin was notified of the adoption proceedings and did
not object. 5 USCIS Policy Manual, pt. E, ch. 3(C).
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not in a position to certify, under Article 23, that the adoption has been made
in accordance with the Convention, and as a result the adoption is not entitled
to recognition in other Contracting States under the Convention.” Hague
Conf. on Priv. Int’l L., supra at 117.
We agree with DHS’ argument on appeal that failing to consider the
foreign Central Authority’s views on the child’s residence could “undermine
international cooperation between the United States and other Convention
countries” and could lead to countries refusing to recognize United States
adoptions or possibly limiting intercountry adoptions with the United States.
Moreover, requiring that the Central Authority of the child’s country of
origin be given the opportunity to weigh in on the child’s habitual residence
satisfies the regulatory requirement that the child’s Convention country of
origin determine that the child’s status is “sufficiently stable for [the United
States] properly to exercise jurisdiction over the child’s adoption or custody.”
8 C.F.R. § 204.303(b); see also Hague Convention, Art. 16(d) (providing that
the Central Authority of the child’s country of origin must determine whether
the prospective adoption is in the best interest of the child).
We therefore hold that a petitioner seeking approval of a Form I-130 for
an adopted child from a country that is a party to the Hague Convention
should provide, regardless of the beneficiary’s length of United States
residence: (1) a written statement from the Central Authority of the child’s
country of origin stating that it is aware of the child’s presence in the United
States and of the adoption, and that it has determined that the child is not
habitually resident in the country of origin; and (2) an adoption order or
amended adoption order incorporating the language of the statement from
the Central Authority. If the petitioner is unable to obtain such a statement,
an alternative showing is required. An adopted child will not be considered
habitually resident in the United States unless the petitioner shows that the
Central Authority of the child’s country of origin did not respond to the
request for a habitual residence statement, that the Central Authority
responded that it would not write a habitual residence statement, or that the
United States Department of State has confirmed that the Central Authority
does not issue habitual residence statements. This is a threshold requirement
that applies to all I-130s filed on behalf of adopted children from Convention
countries, regardless of the child’s length of residence in the United States. 2
2
We express no opinion at this time as to what information must be provided to the
Central Authority, in what manner this information must be communicated, what evidence
establishing attempts to obtain a letter must be provided, or any other USCIS policy
requirements concerning habitual residence. These issues are not before us.
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IV. APPLICATION TO THE PETITIONER’S CASE
Because the petitioner did not comply with the Hague Convention
adoption process and instead filed an I-130 petition after the beneficiary’s
adoption, we must determine whether the petitioner has met her burden of
demonstrating that the beneficiary is eligible for an immediate relative visa
as the adopted child of a United States citizen under section 201(b)(2)(A)(i)
of the INA, 8 U.S.C. § 1151(b)(2)(A)(i), and is not subject to the Hague
Convention. See Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966)
(holding that the petitioner has the burden to establish eligibility for the
benefit sought).
As explained above, the Director informed the petitioner in the NOID that
she could demonstrate the beneficiary’s adoption was not subject to the
Hague Convention by providing, inter alia, a written statement from the
Central Authority of Cabo Verde stating that it was aware of the beneficiary’s
adoption and that it has determined that the beneficiary is not a habitual
resident of Cabo Verde. Alternatively, if the petitioner was unable to obtain
this statement, the NOID instructed her to submit evidence showing that she
attempted to obtain the statement.
In response to the NOID, the petitioner submitted documents to show that
the beneficiary had been residing in the United States prior to the adoption
and had not resided in Cabo Verde since a very young age. The documents
included medical records and guardianship documents dating from February
2013 to the beneficiary’s adoption in May 2017.
Despite this evidence of residence in the United States, the petitioner did
not submit a written statement from the Central Authority of Cabo Verde
regarding the beneficiary’s habitual residence or an adoption order or
amended adoption order incorporating the language of the statement from
the Central Authority. Moreover, the petitioner did not aver or provide
evidence that she attempted to obtain the habitual residence statement from
the Central Authority of Cabo Verde without success, or that the Cabo Verde
Central Authority responded that it would not write a habitual residence
statement as requested. Absent a Central Authority statement or a showing
that she was unable to obtain such a statement, the record evidence of the
beneficiary’s residence in the United States is insufficient to meet the
petitioner’s burden of establishing that the beneficiary is eligible for a visa
as the adopted child of a United States citizen under section 201(b)(2)(A)(i)
of the INA, 8 U.S.C. § 1151(b)(2)(A)(i).
The petitioner submitted additional documents to the Board on appeal,
including an affidavit stating that she made “many unsuccessful attempts to
contact the Hague Central Authority of Cabo Verde.” This Board will not
accept or consider evidence offered for the first time on appeal that was not
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submitted to the Director. See Matter of Soriano, 19 I&N Dec. 764, 766
(BIA 1988) (holding that when a petitioner has notice of required evidence
and an opportunity to respond, the Board will not consider evidence
submitted on appeal); see also Matter of Obaigbena, 19 I&N Dec. 533, 537
(BIA 1988) (holding that when a petitioner fails to respond to the NOID, the
Board will not consider any evidence submitted on appeal). The petitioner
may file a new I-130 visa petition on the beneficiary’s behalf that is
supported by evidence that satisfies the requirements discussed and
establishes that the beneficiary is eligible for immediate relative status.
ORDER: The appeal is dismissed.
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