On November 23, 2020, the US Tenth Circuit Court of Appeals ruled against a family’s appeal to grant permanent residence, and therefore a path to citizenship, to their 17-year-old adopted child under the Immigration and Nationality Act of 1952 (INA). The decision upholds the amendments made to the Act in 2000, which allow but put an age limit for adopted children’s automatic path to citizenship.

The court evaluated “whether a father’s adopted child can qualify as his ‘legitimated’ child…when the child is not his biological child” for citizenship purposes. The court agreed with the plaintiff, Lieutenant Colonel Patrick Schreiber, that the Act does look to states to determine “how a parent may legitimate an eligible child,” but that the term “legitimation” is unambiguous in its meaning. Legitimation can only occur between a child and a parent where there is a biological connection.

The Board of Immigration Appeals (BIA) is the federal agency charged with interpreting the Act and was the original agency that denied Mr. Schreiber’s claim for permanent residency for his adopted daughter. Mr. Schreiber later tried to argue gender discrimination between legitimating a child for a mother compared to a father for citizenship purposes. However, he did not bring this up in the original case, and neither the District Court nor the Court of Appeals commented on this. That argument had been successful in a case argued in 2017 in Sessions v. Morales-Santana which argued that fathers receive unfair treatment compared to mothers when transmitting their citizenship to their children.

Mr. Schreiber and his wife are both United States citizens residing in Kansas. In 2012, Mrs. Schreiber’s niece, Hyebin, moved from South Korea to Kansas to finish high school in the United States. In 2014, the Schreibers adopted Hyebin with the permission of her biological parents still in South Korea. On April 14, 2015, Mr. Schreiber filed an I-130 Petition for Alien Relative to the United States Citizenship and Immigration Services (USCIS), the agency under the Department of Homeland Security responsible for granting permanent residency, more commonly known as issuing green cards.

On November 10th of that year, the USCIS responded with a “Notice of Intent to Deny” the I-130 petition for Hyebin’s green card. The notice stated, “because cannot be classified as adopted child for immigration purposes.” The USCIS was citing the Child Citizenship Act of 2000, INA 320(b) under which an adopted child must be in the physical and legal custody of the United States citizen parent for at least two years to qualify for automatic citizenship. Therefore, any child adopted after the age of 16 does not qualify for citizenship under the Act.

Mr. Schreiber then requested USCIS to qualify his adopted daughter as a legitimate child to “start her on the path to obtaining lawful permanent residence.” He cited the definition of “child” in the Immigration and Nationality Act of 1952, 8 U.S.C. § 1101 (b)(1)(C), which defers legitimation issues to the state. Mr. Schreiber argued that Kansas state, where he adopted Hyebin, considers adopted children legitimated under their adoption laws. He further argued that since Kansas considered Hyebin his legitimated child, and because he legitimated her before she turned 18, she was qualified for a path to U.S. citizenship.

The BIA, and subsequently the District Court and Court of Appeals all agreed that the Act does state that “a child legitimated under the law of the child’s residence or domicile, or under the law of the father’s residence or domicile” qualifies for a path to citizenship if the legitimation occurs before the child turns 18. However, the disagreement in this case is not about how a child is legitimated; it is about who can be legitimated.

While Mr. Schreiber argued that there is ambiguity in the term ‘legitimated’ throughout the Act, the Court of Appeals disagreed, citing legal precedents, most notably Pfeifer v. Wright, 41 F.d2 464 (10th Circuit, 1930). This court case explained that “legitimation was traditionally understood to be a state law process whereby a father recognized his natural (i.e., biological child – born out of wedlock – as his own.” The court continued to state that “thus, our precedent in Pfeifer highlights that traditionally, the concept of ‘legitimation’ effectively runs along two axes: one defines who can be legitimated… and the other defines how they can be legitimated.”

The Court went on to cite Blythe v. Ayres, 31 P. 915 (Cal. 1892), a California Supreme Court case that stated law dictionaries unanimously agreed that “doption, properly considered, refers to persons who are strangers in blood; legitimation, to persons where the blood relation exists” thereby overriding the state’s laws on who can be legitimated.

This case shows the disparate treatment adopted children receive compared to biological children in their route to citizenship. Before the Child Citizenship Act was signed by President Bill Clinton in 2000, adopted children had no automatic pathway to citizenship. Even now, under the CCA, adopted children have an additional limitation on their access to permanent residence: their age. Biological children under the Act, and in subsequent amendments, must fulfill all requirements by the age of 18, while those who are adopted, must do so by the time they turn 16 unless they have a biological sibling who qualified before turning 16. This case confirms that state adoption laws on legitimation cannot overrule federal court precedents when determining who can be legitimated for citizenship purposes.