January 28, 2007
THE ILOCOS TIMES - FEATURE

IMMIGRATION GUIDE (11)
Atty. Emmanuel Samonte Tipon

Mere visits by adopter insufficient for immigration?

People in the Philippines sometimes ask a relative in the United States to adopt their child hoping that the child will have a better future.

I met one of such benevolent relatives on the plane from Manila to Hawaii last month. She had just obtained the adoption decree from a Philippine court.

She wanted to know the requirements for petitioning the child. I told her to read my article “Ten Commandments on How to Bring Your Adopted Child to America”.

Immigration law allows a citizen or lawful permanent resident to petition for a child. INA Sec. 201(b)(2)(A)(i).

The term “child” means an unmarried person under twenty one years of age, including “a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years.” INA Sec. 101(b)(1)(E).

The most difficult requirement to comply with, especially if the adopter has never lived with the child before immigrating to the U.S., is the two-year residency requirement.

“How can I go back to the Philippines and live with the child for two years. I will lose my job,” exclaimed one adopter.

If you are really serious about bringing the child to America, as one client of mine is, he returned to the Philippines and lived with the child for two years.

Another adopter indicated that he is willing to go back to the Philippines and live with their adopted child, even if he will give up his job in Hawaii. He said that he and his wife love their adopted child.

As Pandora (Ava Gardner) told the Flying Dutchman (James Mason): “The measure of one’s love is what one is willing to give up for it.”

How many adopters are like these good people?

A number of Filipinos have tried to meet the 2-year residency requirement by making periodic trips to the Philippines to be with their adopted child, staying an average of two weeks to one month on each trip. After accumulating the equivalent of two years, they petition for the child.

The USCIS and the Board of Immigration Appeals have invariably denied such petitions on the ground that the 2-year residence requirement for a familial adopted child relationship is not satisfied by “mere visits”. The leading case on this subject is Matter of Repuyan, 19 I&N Dec. 119 (BIA 1984).

In one case where an adopter, a U.S. citizen, made 17 periodic trips to the Philippines over a span of 12 years and lived with his adopted child in the adopter’s home in the Philippines for as short as 13 days and as long as 89 days, accumulating more than 2 years of living together, the USCIS denied his petition for the child on the ground that these trips were “mere visits,” citing the Repuyan case.

He retained our services (with Atty. James A. Stanton) to appeal to the Board of Immigration Appeals (BIA). In a brief we filed with the BIA we challenged the denial of his petition on the grounds that:

A. The term “resided with” in the law requiring that the adopted child has “resided with” the adopting parent for at least two years means physical residence, not legal residence or domicile.

B. The adopted child “resided with” the adopting parent for at least two years.

C. The case of Matter of Repuyan, 19 I&N Dec. 119 (BIA, 1984) is distinguishable from the case at bar and the Director’s reliance thereon is misplaced when he described the periods of physical residence of the Petitioner and his adopted child as “visits”.

The main distinction between Repuyan and the case at bar is that in Repuyan the adopter visited the adopted child in the latter’s home, while in the case at bar, the adopter resided with the adopted child in the adopter’s own home. A person does not “visit” his own home.

D. The law does not require the period of residence of the adopted child with the adopting parent to be continuous but allows residence to be “aggregated”.

E. The USCIS Service Center Director’s decision is not in accordance with the facts and the law because the petitioner physically resided with his adopted child for two years even though it was not continuous, since the law does not require residence to be continuous.

F. The statute requiring an adopted child to “reside with” the adopting parent for two years violates due process of law and the USCIS Service Center Director deprived petitioner of due process of law when he denied petitioner’s visa petition for his adopted child.

The requirement is arbitrary and capricious because it threatens, disrupts, or even destroys the parent and child relationship. If the adopting parent cannot meet the 2-year requirement, it dismembers the family because the child will not be able to immigrate to the U.S.

One court said that the purpose of the requirement is to prevent abuse. But it did not explain what is this abuse and how two years of living with the child could prevent this imaginary abuse.

G. The law requiring that in the case of the adoption of a non-orphan, the child “reside with” the adopting parent for two years, while imposing no such requirement in the case of the adoption of an orphan denies the equal protection of the laws.

Movie stars like Madonna and Angelina can go to Africa and adopt orphans and bring them to America without requiring them to “reside with” the orphan for two years.

Why can’t Manong Joe go to the Philippines and adopt his relative who is not an orphan and bring him to America without requiring him to “reside with” the child for two years?

The concept of equal protection of the laws is that the state cannot draw distinctions between individuals based solely on differences that are irrelevant to a legitimate government objective.

What is the legitimate government objective in differentiating between orphans and non-orphans so that it does not require a 2-year residence to bring an orphan to America but requires it in the case of a non-orphan?

We are waiting for the USCIS to reply to our brief.

Abangan.

(Atty. Tipon is from Laoag City. He holds a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from U.P. He practices law and writes law books. Office: 905 Umi St., Suite 201, Honolulu, HI 96819. Tel. (808) 847-1601. E-mail: filamlaw@yahoo.com. Website: www.ImmigrationServicesUSA.com. This article is for general information only and is not intended as legal advice.)

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