Refugee Status as an Alternative for Stateless Adoptees

Sam Han
Vol. 38 Associate Editor

Under international law, “statelessness” is the status given to an individual without citizenship under the operation of any country’s laws.[1] In the United States, an estimated 35,000 intercountry adoptees currently do not possess U.S. citizenship,[2] and by definition, are considered stateless persons. By no fault of their own, many of these adoptees are not given citizenship because of clerical errors or the oversight of their adoptive parents.[3] This has significant legal ramifications, especially in contexts where these adoptees face deportation.[4]

While U.S. citizens with criminal convictions would not be stripped of their citizenships nor face deportation, adoptees who have habitually resided in the U.S. without citizenship are subject to deportation because the law has not yet addressed their precarious circumstances. Congress has attempted to rectify this concern and has proposed the Adoptee Citizenship Act, which grants citizenship to adoptees facing deportation. However, since its introduction in 2015, the Act has yet to gain steam and still leaves these adoptees in a predicament of having to leave a country they would not be forced to leave if they had citizenship.

Rather than anticipating congressional action for a remedy, one possible resolution for stateless adoptees might be to seek out refugee status as defined under the 1951 Convention Relating to the Status of Refugees. Under Article 1(A)(2) of the 1951 Convention, an individual may be considered a refugee if he or she cannot or is unable to return to the country of his or her habitual residence due to a fear of persecution based on his or her race, religion, nationality, political opinion, or membership in a particular social group.[5] The extension of this provision would naturally apply to stateless individuals such as the adoptees currently under discussion. That is to say, stateless adoptees fit categorically as individuals of a membership of a particular social group.

While there is a lack of consensus as to what groups of individuals constitute a particular social group, there is relevant case law demonstrating that stateless adoptees are covered under the definition of refugees of the 1951 Convention. Nonetheless, persons may constitute a particular social group when they share a common immutable characteristic—one that is so intrinsically a part of their being—and such a characteristic distinguishes them as being different in a society in which they habitually reside.[6]

Much of the case law surrounding the definition of “membership in a particular social group” appears to focus on the immutability of the group’s identity and the treatment of the group in their country of residence. To illuminate this matter, cases regarding persons with membership in a discriminated work cooperative[7] or a group of uncompensated informants[8] were not considered a social group, while persons facing forced sterilization would be considered as a persecuted group[9]. Furthermore, women who were intimately involved with men who believed women to live under male dominion were not considered refugees,[10] whereas women fleeing domestic violence were classified as a social group.[11] The determination of a particular social group appears to be conditioned on the possession of some innate characteristic outside a person’s control, which leads to oppressive treatment.

These qualifications outlined in case law suggest that stateless adoptees would be considered a particular social group, as their status as adopted persons is immutable and not subject to change by their will. Additionally, granting them protection from persecution may be justified on the grounds that they are not able to enjoy the same freedoms and rights as citizens of the U.S. as they would have if their parents or the government took the means to secure their citizenships. As individuals who are displaced, intercountry adoptees face immense challenges when dealing with cross-border relations, such as deportation. Without laws that guarantee their security, one possible alternative may be found in attaining refugee status as members in a particular social group.


[1] Convention relating to the Status of Stateless Persons, article 1(1); UNHCR (19 May 2016). “UNHCR worldwide population overview”. UNHCR. Retrieved 06/07/2016.

[2] South Korean Adopted at Age 3 Is To Be Deported Nearly 40 Years Later, NPR (Oct. 27, 2016), http://www.npr.org/sections/thetwo-way/2016/10/27/499573378/south-korean-adopted-at-age-3-is-to-be-deported-37-years-later.

[3] See id.

[4] See id.

[5]  1951 Convention relating to the Status of Refugees.

[6]  Qualification Directive, art. 10(1)(d) (applying standard articulated in Matter of Acosta, 19 I&N Dec. 211 (BIA 1985) (U.S.).

[7] See Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).

[8] See Matter of C-A-, 23 I&N 951 (BIA 2006).

[9] See 8 U.S.C. § 1101(a)(42).

[10] Matter of R-A-, 22 I&N 906 (BIA 1999).

[11]  Islam (A.P.) v. Secretary of State for the Home Department; Regina v. Immigration Appeal Tribunal and Another Ex Parte Shah (A.P.), [1999] (H.L.)

 

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