SPEAKERS CONTENTS INSERTS
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64–398
2000
ADOPTED ORPHANS CITIZENSHIP ACT AND ANTI-ATROCITY ALIEN DEPORTATION ACT
HEARING
BEFORE THE
SUBCOMMITTEE ON
IMMIGRATION AND CLAIMS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
ON
H.R. 2883 and H.R. 3058
FEBRUARY 17, 2000
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Serial No. 53
Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
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MARY BONO, California
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
DAVID VITTER, Louisiana
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
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Subcommittee on Immigration and Claims
LAMAR S. SMITH, Texas, Chairman
BILL McCOLLUM, Florida
ELTON GALLEGLY, California
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
JOE SCARBOROUGH, Florida
SHEILA JACKSON LEE, Texas
HOWARD L. BERMAN, California
ZOE LOFGREN, California
BARNEY FRANK, Massachusetts
MARTIN T. MEEHAN, Massachusetts
GEORGE FISHMAN, Chief Counsel
JIM WILON, Counsel
LAURA BAXTER, Counsel
CINDY BLACKSTON, Professional Staff
LEON BUCK, Minority Counsel
C O N T E N T S
HEARING DATE
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February 17, 2000
TEXT OF BILL
H.R. 2883
H.R. 3058
OPENING STATEMENT
Smith, Hon. Lamar, a Representative in Congress from the State of Texas, and chairman, Subcommittee on Immigration and Claims
WITNESSES
Betancourt, Edward A., Director, Office of Policy Review and Interagency Liaison, Bureau of Consular Affairs, U.S. Department of State
Castello, James, Associate Deputy Attorney General, U.S. Department of Justice
Cox, Susan Soon-Keum, vice president, Public Policy and External Affairs, Holt International Children's Services
Evans, Maureen, executive director, Joint Council on International Children's Services
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Foley, Hon. Mark, a Representative in Congress from the State of Florida
Krieger, Richard, president, International Educational Missions, Inc.
Ratliff, Gerri, Director, Business Process & Re-Engineering Services and Acting Director, Office of Congressional Relations, Immigration and Naturalization Service
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Betancourt, Edward A., Director, Office of Policy Review and Interagency Liaison, Bureau of Consular Affairs, U.S. Department of State: Prepared statement
Castello, James, Associate Deputy Attorney General, U.S. Department of Justice: Prepared statement
Cox, Susan Soon-Keum, vice president, Public Policy and External Affairs, Holt International Children's Services: Prepared statement
Evans, Maureen, executive director, Joint Council on International Children's Services: Prepared statement
Foley, Hon. Mark, a Representative in Congress from the State of Florida: Prepared statement
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Krieger, Richard, president, International Educational Missions, Inc.: Prepared statement
Ratliff, Gerri, Director, Business Process & Re-Engineering Services and Acting Director, Office of Congressional Relations, Immigration and Naturalization Service: Prepared statement
Smith, Hon. Lamar, a Representative in Congress from the State of Texas, and chairman, Subcommittee on Immigration and Claims: Prepared statement
ADOPTED ORPHANS CITIZENSHIP ACT AND ANTI-ATROCITY ALIEN DEPORTATION ACT
THURSDAY, FEBRUARY 17, 2000
House of Representatives,
Subcommittee on Immigration
and Claims,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to call, at 9:35 a.m., in room 2237, Rayburn House Office Building, Hon. Lamar Smith [chairman of the subcommittee] presiding.
Present: Representatives Lamar Smith and Edward A. Pease.
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Staff present: George Fishman, chief counsel; Jim Wilon, counsel; Bill Griffith, Pearson fellow; Kelly Dixon, clerk; Leon Buck, minority counsel; and Nolan Rappaport, counsel.
OPENING STATEMENT OF CHAIRMAN SMITH
Mr. SMITH. The Subcommittee on Immigration and Claims will come to order.
I have several thanks to issue before we begin. One is to Congressman Ed Pease of Indiana to my right. Were it not for his presence, we wouldn't be able to have this hearing today, because two members' presence is required. So a special thanks to Ed Pease who, along with Congressman Mark Foley who will be testifying on the first panel, are probably the last two Members of Congress in town. We appreciate their presence.
I am tempted to ask, because we have a fair amount of interest this morning: How many people are here because there is nothing else going on? [Laughter.]
Mr. SMITH. And how many people here are interested in the first bill and how many in the second bill—more in the second than the first.
We will proceed, and because we are not going to be interrupted by votes or anything else, I hope we will be able to proceed directly through the hearing and be finished within a hour or thereabouts. I have the only opening statement today and then we will proceed with our witnesses.
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This morning we will hear testimony on two bills, H.R. 2883, the Adopted Orphans Citizenship Act and H.R. 3058, the Anti-Atrocity Alien Deportation Act.
Regarding the issue of citizenship for adopted children, the Immigration and Nationality Act currently provides a mechanism for granting U.S. citizenship to the children of American citizens who were born outside the United States, including children adopted by American citizens.
Many adoptive parents would like to see a more streamlined process for naturalizing the adopted children of U.S. citizens born outside of the U.S. They point to several problems with the current law. One, the process is redundant. Although U.S. citizen parents submit numerous documents to the Immigration and Naturalization Service and the Department of State in connection with the child's immigrant visa application, they must resubmit many of the same documents again in connection with the child's citizenship application.
Two, the process takes too long. Parents should be able to complete the process within a few weeks or months. However, lengthy backlogs at the INS have caused the process to take a year or longer in some instances. In cases involving children who are approaching their 18th birthday, the delay could result in some children losing the opportunity to acquire citizenship under provisions of the law.
Three, the process is dependent and unnecessarily so, upon the parent acting on behalf of the child. While most U.S. citizen parents try to ensure their foreign-born children acquire citizenship before reaching the age of 18, some fail to take the necessary action required under current law. In such instances, the children, through no fault of their own, find themselves disadvantaged because they are not citizens.
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H.R. 2883 would amend the current law regarding the acquisition of citizenship by the adopted children of U.S. citizen parents. The bill would automatically extend citizenship to the adopted alien child of a U.S. citizen in the following circumstances:
The adopted person must be unmarried and under the age of 18. The person must be physically present in the United States, be admitted to the U.S. as a lawful permanent resident, and have met the requirements for the admission of an adopted child to a U.S. citizen. The person must seek documentation as a United States citizen under the age of 18.
Today, we will hear from witnesses from the Departments of Justice and State regarding H.R. 2883. We will also hear from representatives of the adoption community.
[The bill, H.R. 2883, follows:]
106TH CONGRESS
1ST SESSION
H. R. 2883
To amend 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.
IN THE HOUSE OF REPRESENTATIVES
SEPTEMBER 21, 1999
Mr. SMITH of Texas (for himself, Mr. LAHOOD, Mr. PAUL, Mr. NETHERCUTT, Mr. KUYKENDALL, and Mr. SHAYS) introduced the following bill; which was referred to the Committee on the Judiciary
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A BILL
To amend 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.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ''Adopted Orphans Citizenship Act''.
SEC. 2. ACQUISITION OF UNITED STATES CITIZENSHIP BY CERTAIN ADOPTED CHILDREN.
(a) AMENDMENTS TO THE IMMIGRATION AND NATIONALITY ACT.—Section 301 of the Immigration and Nationality Act (8 U.S.C. 1401) is amended—
(1) by striking ''and'' at the end of subsection (g);
(2) by striking the period at the end of subsection (h) and inserting ''; and''; and
(3) by adding at the end the following:
''(i) an unmarried person, under the age of 18 years, born outside the United States and its outlying possessions and thereafter adopted by at least one parent who is a citizen of the United States and who has been physically present in the United States or one of its outlying possessions for a period or periods totaling not less than 5 years prior to the adoption of the person, at least 2 of which were after attaining the age of 14 years, if—
''(1) the person is physically present in the United States with the citizen parent, having attained the status of an alien lawfully admitted for permanent residence;
''(2) the person satisfied the requirements in subparagraph (E) or (F) of section 101(b)(1); and
''(3) the person seeks documentation as a United States citizen while under the age of 18 years.''.
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(b) EFFECTIVE DATE.—The amendments made by subsection (a) shall apply with respect to persons adopted before, on, or after the date of enactment of this Act.
The second bill on which we will hear testimony today is H.R. 3058, the Anti-Atrocity Alien Deportation Act introduced by Representative Foley of Florida, who is with us today.
Recent media reports state that some aliens who allegedly participated in human rights violations in their home countries have taken refuge in the United States. Former officials from repressive regimes in countries such as Haiti and Yugoslavia have apparently escaped justice and established comfortable lives in American communities, sometimes right next to other immigrants who are victims of their repression.
Human rights violators may be able to take refuge in the United States because their conduct was not criminal in their home countries or because their wrongdoing is not known to U.S. law enforcement authorities.
The Immigration and Naturalization Service is the Agency primarily responsible for locating and deporting aliens based on their past wrongdoing. Another, more specialized branch of the Justice Department is the Office of Special Investigations which was created in 1979 to track down Nazi war criminals. The OSI's mission has been winding down as the few remaining Nazi war criminals pass away due to illness and old age.
H.R. 3058 has three provisions. The bill would amend the Immigration and Nationality Act to make aliens who have committed acts of torture inadmissible and removable. H.R. 3058 would also establish OSI as a permanent Agency responsible for investigating, removing, denaturalizing or prosecuting aliens guilty of Nazi persecutions, genocide or torture. Finally, the bill would authorize additional appropriations for OSI.
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At least three issues have been raised by H.R. 3058. First, some advocates have suggested expanding the bill beyond torture to include other kinds of repression and wrongdoing. Second, some have advocated going beyond deportation to make alien war criminals susceptible to criminal prosecution in the United States as well. Finally, there is the issue of which Agency is the appropriate one to enforce the bill's provisions. Advocates of the Office of Special Investigations, including American Jewish organizations that value OSI's Nazi-hunting mission, think highly of OSI's work and maintain close affiliations with OSI. These organizations favor the approach taken by H.R. 3058 and claim the INS has been ineffective in dealing with foreign war criminals.
Others argue that immigration enforcement should be carried out by the Immigration and Naturalization Service which has the necessary jurisdiction and expertise. Splitting the jurisdiction between INS and OSI could complicate enforcement actions where, for example, alleged war criminals try to claim asylum or other immigration benefits.
[The bill, H.R. 3058, follows:]
106TH CONGRESS
1ST SESSION
H. R. 3058
To amend the Immigration and Nationality Act to provide that aliens who commit acts of torture abroad are inadmissible and removable and to establish within the Criminal Division of the Department of Justice an Office of Special Investigations having responsibilities under that Act with respect to all alien participants in acts of genocide and torture abroad.
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IN THE HOUSE OF REPRESENTATIVES
OCTOBER 12, 1999
Mr. FOLEY (for himself and Mr. ACKERMAN) introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To amend the Immigration and Nationality Act to provide that aliens who commit acts of torture abroad are inadmissible and removable and to establish within the Criminal Division of the Department of Justice an Office of Special Investigations having responsibilities under that Act with respect to all alien participants in acts of genocide and torture abroad.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ''Anti-Atrocity Alien Deportation Act''.
SEC. 2. INADMISSIBILITY AND REMOVABILITY OF ALIENS WHO HAVE COMMITTED ACTS OF TORTURE ABROAD.
(a) INADMISSIBILITY.—Section 212(a)(3)(E) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(E)) is amended by adding at the end the following:
''(iii) COMMISSION OF ACTS OF TORTURE.—Any alien who, outside the United States, has committed any act of torture, as defined in section 2340 of title 18, United States Code, is inadmissible.''.
(b) REMOVABILITY.—Section 237(a)(4)(D) of such Act (8 U.S.C. 1227(a)(4)(D)) is amended by striking ''clause (i) or (ii)'' and inserting ''clause (i), (ii), or (iii)''.
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(c) EFFECTIVE DATE.—The amendments made by this section shall apply to offenses committed before, on, or after the date of enactment of this Act.
SEC. 3. ESTABLISHMENT OF THE OFFICE OF SPECIAL INVESTIGATIONS.
(a) AMENDMENT OF THE IMMIGRATION AND NATIONALITY ACT.—Section 103 of the Immigration and Nationality Act (8 U.S.C. 1103) is amended by adding at the end the following:
''(g) The Attorney General shall establish within the Criminal Division of the Department of Justice an Office of Special Investigations with the authority of investigating, and, where appropriate, taking legal action to remove, denaturalize, or prosecute any alien found to be in violation of clause (i), (ii), or (iii) of section 212(a)(3)(E).''.
(b) AUTHORIZATION OF APPROPRIATIONS.—
(1) IN GENERAL.—There are authorized to be appropriated to the Department of Justice for the fiscal year 2000 such sums as may be necessary to carry out the additional duties established under section 103(g) of the Immigration and Nationality Act (as added by this Act) in order to ensure that the Office of Special Investigations fulfills its continuing obligations regarding Nazi war criminals.
(2) AVAILABILITY OF FUNDS.—Amounts appropriated pursuant to paragraph (1) are authorized to remain available until expended.
Representative Foley deserves great credit for bringing our attention to such an important human rights issue. Congressman Foley, we welcome you this morning. If you will proceed, we will hear your testimony.
I ought to explain to the audience that we are trying to do two bills concurrently, but the second bill doesn't have any sponsors here to testify, so we will hear your testimony, and then the second panel, which consists of government witnesses, will actually address both bills. Then we will take up one bill at a time.
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The other point to make is that you are welcome to join us up here after you testify. While I cannot recognize you for questions, you can submit questions to me which I will ask witnesses.
Again, welcome and please proceed.
[The prepared statement of Mr. Smith follows:]
PREPARED STATEMENT OF HON. LAMAR SMITH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS, AND CHAIRMAN, SUBCOMMITTEE ON IMMIGRATION AND CLAIMS
This morning , we will hear testimony on two bills,
H.R. 2883, the ''Adopted Orphans Citizenship Act,'' and H.R. 3058, the ''Anti-Atrocity Alien Deportation Act.''
H.R. 2883
Regarding the issue of citizenship for adopted children, the Immigration and Nationality Act currently provides a mechanism for granting U.S. citizenship to the children of American citizens who were born outside of the United States, including children adopted by American citizens.
To qualify, the following conditions must be fulfilled:
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1) At least one parent must be a U.S. citizen, either by birth or naturalization;.
2) The child must be physically present in the U.S. pursuant to a lawful admission.
3) The child is under the age of 18 and in the legal custody of the citizen parent.
4) If the child was adopted , the child must have met the definition of ''child'' under the provisions of the Immigration and Nationality Act which provide for the admission of adopted children.
5) The citizen parent must have met certain physical presence requirements.
Many adoptive parents would like to see a more streamlined process for naturalizing the adopted children of U.S. citizens born outside of the U.S. They point to several problems with the current law:
1) The process is redundant. Although U.S. citizen parents submit numerous documents to the Immigration and Naturalization Service and the Department of State in connection with the child's immigrant visa application, they must resubmit many of the same documents again in connection with the child's citizenship application.
2) The process takes too long. Parents should be able to complete the process within few weeks or months. However, lengthy backlogs at the INS have caused the process to take a year or longer in some instances. In cases involving children who are approaching their 18th birthday, the delay could result in some children losing the opportunity to acquire citizenship under this provision of the law.
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3) The process is dependent the parent acting on behalf of the child. While most U. S. citizen parents try to ensure that their foreign-born children acquire citizenship before reaching age 18, some fail to take the necessary action required under current law. In such instances the children, through no fault of their own, find themselves disadvantaged because they are not U.S. citizens.
H.R. 2883 would amend the current law regarding the acquisition of citizenship by the adopted children of U.S. citizen parents. The bill would automatically extend citizenship to the adopted alien child of a U.S. citizen in the following circumstances:
The adopted person must be unmarried and under the age of 18;
The person must be physically present in the United States, have been admitted to the U.S. as lawful permanent resident and have met the requirements for the admission of an adopted child of a U.S. citizen.
The person must seek documentation as a United State Citizen while under the age of 18.
The Department of Justice and the Department of State have expressed concern that H.R. 2883 is inconsistent with long-standing principles of nationality law:
1) It attempts to make individuals retroactively citizens ''at birth'' based on events and conditions occurring after birth.
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2) It favors adopted children over certain biological children of U.S. citizens, in that certain adopted children will receive citizenship at birth while biological children would not.
3) The retroactive conferral of citizenship on adopted children would create differences between adopted children and other persons who acquire U.S. citizenship by naturalization.
Today, we will hear from witnesses from the Departments of Justice and State regarding H.R. 2883. We also will hear from representatives of the adoption community.
H. R. 3058
The second bill on which we will hear testimony today is H.R. 3058, ''Anti-Atrocity Alien Deportation Act,'' introduced by Representative Foley of Florida.
Recent media reports state that some aliens who allegedly participated in human rights violations in their home countries have taken refuge in the United States. Former officials from repressive regimes in countries such as Haiti and Yugoslavia have apparently escaped justice and established comfortable lives in American communities, sometimes right next to other immigrants who were victims their repression.
Human rights violators may be able to take refuge in the United States because their conduct was not criminal in their home countries or because their wrongdoing is not known to U.S. law enforcement authorities.
The Immigration and Naturalization Service is the agency primarily responsible for locating and deporting aliens based on their past wrongdoing. Also, if an alien has obtained U.S. citizenship by concealing his past wrongdoing, the INS may denaturalize and then him.
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Another, more specialized branch of the Justice Department is the Office of Special Investigations, which was created in 1979 to track down Nazi war criminals. The OSI's mission has been winding down as the few remaining Nazi war criminals pass away due to illness and old age.
H.R. 3058 has three provisions. The bill would amend the Immigration and Nationality Act to make aliens who have committed acts of torture inadmissible and removable. H.R. 3058 would also establish OSI as a permanent agency responsible for investigating, removing, denaturalizing, or prosecuting aliens guilty of Nazi persecutions, genocide, or torture. Finally, the bill would authorize additional appropriations for OSI.
At least three issues have been raised by H.R. 3058. First, some advocates have suggested expanding the bill beyond torture to include other kinds of repression and wrongdoing. Some have also advocated going beyond deportation to make alien war criminals amenable to criminal prosecution in the United States as well.
Finally, there is the issue of which agency is the appropriate one to enforce the bill's provisions. Advocates of OSI—including American Jewish organizations that value OSI's Nazi-hunting mission, think highly of OSI's work, and maintain close affiliations with OSI—favor the approach taken by H.R. 3058 and claim that the INS has been ineffective in dealing with foreign war criminals.
Others argue that immigration enforcement should be carried out by the Immigration and Naturalization Service, which has the necessary jurisdiction and expertise. Splitting the jurisdiction between INS and OSI could complicate enforcement actions where, for example, alleged war criminals try to claim asylum or other immigration benefits.
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Representative Foley deserves great credit for bearing the standard on such an important human rights issue.
STATEMENT OF HON. MARK FOLEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA
Mr. FOLEY. Thank you very much, Mr. Chairman and Mr. Pease, both of you, for making this possible for me today. I want to thank you and the members of your subcommittee for giving me the opportunity to testify before you today on the Anti-Atrocity Alien Deportation Act.
On the Statute of Liberty is written ''Give me your tired, your poor, your huddled masses yearning to breathe free.'' However, it says nothing about the United States welcoming purveyors of heinous crimes.
Let me read from the Miami Herald editorial which appeared yesterday in its full-run edition. ''Where are they now—the torturers, assassins and collaborators in crimes against humanity committed in the last 50 years. To the shame of the United States, they may live next door.'' I would like to submit that, with your permission, Mr. Chairman—the editorial and other important articles—for the record.
Mr. SMITH. Without objection, so ordered.
[The information referred to is in subcommittee files.]
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Mr. FOLEY. This truly bipartisan legislation which I introduced with Gary Ackerman and Bob Franks now has 24 co-sponsors in the House. On the Senate side, Senator Patrick Leahy joined forces with Senator Hatch to pass the bill at the end of the last session. It is my hope that you and your subcommittee will also look favorably on the legislation and expedite its consideration.
The United States has always been a safe haven for those fleeing political persecution abroad and this policy should continue but brutal criminals who have gone on violent rampages in Haiti, Yugoslavia and Rwanda have been able to gain entry to the United States through the same doors that we have opened to deserving refugees. We need to slam the doors shut on these thugs and rid our country of those who have already managed to make their way here.
I didn't become aware of the need for this until I learned last year that Carl Dorelien, a key member of the brutal military dictatorship that ruled Haiti from 1991 to 1994, is now living in comfort in my own congressional district. He even won the Florida lottery, $3.7 million, and amazingly he described to the Boston Globe that his current standard of living is a step down from his former life in Haiti.
Initially, I assumed this case was just an isolated and bizarre episode but once I began to look into the issue more, I soon realized that we have a big problem on our hands.
Richard Krieger, who you will hear from today, and whose nonprofit organization is dedicated to exposing and ridding our country of war criminals living in the U.S., brought my attention to the fact that the U.S. is becoming a haven for brutal human rights abusers. According to the Center for Justice and Accountability in San Francisco, at least 50 alleged human rights violators are currently living in the United States. And these are just the ones who have been identified.
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In 1998, Canada began an aggressive campaign to locate and act against human rights abusers who found their way into their country. As of July 1999, the Canadian Government indicated that 400 cases are being processed toward removal, 307 suspected war criminals have been denied visas and 23 were deported. That is a total of 700 war criminals that Canada has detected.
Based on Canada's figures and taking into account the much bigger population of the United States and other socioeconomic factors, I think the Center for Justice and Accountability's claim that we have as many as 7,000 human rights abusers living in this country is a fair contention.
We owe it to our country and to ourselves to locate and take action against these modern-day war criminals. After all, statutes like Megan's Law allow communities to find out if known sex offenders move into the area. These same communities, however, could be oblivious to the fact that a brutal thug who went on a rampage in places like Haiti or Kosovo is living anonymously among them.
Canada seems to have been successful in tracking down modern-day war criminals and so can we. The U.S. Justice Department has a model program, the Office of Special Investigations, (OSI), that we can build upon to deny entry to those who have abused human rights in their home countries.
OSI was created to hunt down, prosecute and remove Nazi war criminals who secretly slipped into the United States. Since OSI's inception in 1979, 61 former Nazis have been stripped of U.S. citizenship, 49 have been deported and more than 150 have been denied entry into the United States.
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Clearly, OSI has been extremely successful. The snag is that it is only authorized to track down Nazi war criminals and no one else. As a Congress, we need to give OSI specific statutory authority to ensure we have an effective means of dealing with the new generation of international war criminals who want to spend their golden years in the United States. That is why I joined with Gary Ackerman and Bob Franks in introducing the House companion bill to Senator Leahy's Anti-Atrocity Alien Deportation Act, H.R. 3058.
Our bill would bar admission into the United States and authorize the deportation of aliens who have engaged in acts of torture abroad. It would provide statutory authorization for and expand the jurisdiction of the OSI within the Department of Justice to investigate, prosecute, and remove any alien who participated in torture and genocide abroad, not just Nazis, and authorize additional funding to ensure the OSI has adequate resources to fulfill its current mission of hunting Nazi war criminals.
Torture is already defined in the Federal criminal code and means any act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering upon another person within his custody or physical control. Under this definition, torture includes both those who use or issue the orders to torture innocent people as well as those who implement these orders.
Consequently, the Anti-Atrocity Alien Deportation Act would cover those thugs like Carl Dorelien who, as head of the personnel for the Haitian Army, oversaw the brutal campaign that led to the deaths of approximately 5,000 Haitians between 1991 and 1994.
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Mr. Chairman, I implore you to support the Anti-Atrocity Alien Deportation Act so we can prevent other Carl Doreliens of this world from infiltrating our country and retiring in communities like mine in Port St. Lucie, Florida.
I thank you for the opportunity to testify.
[The prepared statement of Mr. Foley follows:]
PREPARED STATEMENT OF HON. MARK FOLEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA
Mr. Chairman, I would like to thank you and the members of your Subcommittee for giving me the opportunity to testify before you today on the Anti-Atrocity Alien Deportation Act. This truly bipartisan legislation which I introduced with Gary Ackerman and Bob Franks now has 24 cosponsors in the House. On the Senate side, Senator Leahy joined forces with Senator Hatch to pass the bill at the end of last session. It is my hope that you and your Subcommittee will also look favorably on the legislation and expedite its consideration.
The United States has always been a safe-haven for those fleeing political persecution abroad and this policy should continue. However, brutal criminals who have gone on violent rampages in Haiti, Yugoslavia and Rwanda have been able to gain entry to the United States through the same doors that we have opened to deserving refugees. We need to slam the door shut on these thugs and rid our country of those who have already managed to make their way here.
I didn't become aware of the need for this until I learned last year that Carl Dorelien—a key member of the brutal military dictatorship that ruled Haiti from 1991–1994—is now living in comfort in my own congressional district. He even won the Florida lottery and—amazingly—has described his current standard of living as ''a step down'' from his former life in Haiti.
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Initially, I assumed this case was just an isolated and bizarre episode. But, once I began to look into the issue more, I soon realized that we have a big problem on our hands. Richard Krieger, who we will hear from today and whose non-profit organization is dedicated to exposing and ridding our country of war criminals living in the United States, brought my attention to the fact that the U.S. is becoming a haven for brutal human rights abusers.
According to the Center for Justice and Accountability in San Francisco, at least 60 alleged human rights violators are currently living in the United States. And these are just the ones who have been identified.
In 1998, Canada began an aggressive campaign to locate and act against human rights abusers who found their way into the country. As of July, 1999, the Canadian government indicated that 400 cases are being processed toward removal, 307 suspected war criminals have been denied visas, and 23 were deported. That's a total of 700 war criminals that Canada has detected.
Based on Canada's figures—and taking into account the much bigger population in the United States and other socio-economic factors—I think the Center for Justice and Accountability's claim that we could have as much as 7,000 human rights abusers living in this country is a fair contention.
We owe it to our country—and ourselves—to locate and take action against these modern-day war criminals. After all, statutes like Megan's Law allow communities to find out if known sex-offenders move into the area. These same communities, however, could be oblivious to the fact that a brutal thug—who went on a rampage in places like Haiti or Kosovo—is living anonymously among them.
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Canada seems to have been successful in tracking down modern-day war criminals—and so can we. The U.S. Justice Department has a model program—the Office of Special Investigations (OSI)—we can build upon to deny entry to those who have abused human rights in their home countries.
OSI was created to hunt down, prosecute, and remove Nazi war criminals who secretly slipped into the United States. Since OSI's inception in 1979, 61 former Nazis have been stripped of U.S. citizenship, 49 have been deported, and more than 150 have been denied entry into the United States.
Clearly, OSI has been extremely successful. But the snag is, it's only authorized to track down Nazi war criminals and no one else. As a Congress, we need to give OSI specific statutory authority to ensure we have effective means of dealing with the new generation of international war criminals who want to spend their golden years in the United States.
That is why I joined with Gary Ackerman and Bob Franks in introducing the House companion bill to Senator Leahy's Anti-Atrocity Alien Deportation Act (H.R. 3058). H.R. 3058 would:
bar admission into the United States and authorize the deportation of aliens who have engaged in acts of torture abroad;
provide statutory authorization for and expand the jurisdiction of the OSI within the Department of Justice to investigate, prosecute and remove any alien who participated in torture and genocide abroad—not just Nazis; and
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authorize additional funding to ensure that OSI has adequate resources to fulfill its current mission of hunting Nazi war criminals.
''Torture'' is already defined in the Federal criminal code and means any act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering upon another person within his custody or physical control. Under this definition, torturers include both those who issue the orders to torture innocent people as well as those who implement those orders. Consequently, the Anti-Atrocity Alien Deportation Act would cover those thugs like Carl Dorelien who—as Head of Personnel for the Haitian army—oversaw the brutal campaign that led to the deaths of approximately 5,000 Haitians between 1991 and 1994.
Mr. Chairman, I implore you to support the Anti-Atrocity Alien Deportation Act so that we may prevent other Carl Doreliens of this world from infiltrating our country so they can retire peacefully in beautiful communities like Port St. Lucie in my district.
Thank you.
Mr. SMITH. Thank you, Mr. Foley. I just have a couple of quick questions for you.
The first is a subject you mentioned a while ago, the OSI, Office of Special Investigations, which is called for in your bill as being the enforcement Agency. You can expect that the INS will testify in a few minutes that they would like to have the jurisdiction to investigate these types of human rights abuses. Why is the OSI a better office in this case than the INS?
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Mr. FOLEY. Again, I am interested in listening to the debate and hearing all sides but the OSI has been operational. As I testified, they have been largely successful in pursuing Nazi war criminals. They know what they are looking for, they know the type of people and they know the communities oftentimes in which they reside.
Rather than recreating or expanding or creating a new area of jurisdiction, it seems to me to be most appropriate—since they are functional, they are working and they have been skilled in the task of seeking these people—that they would continue in the same vein with this added category.
Mr. SMITH. A second question, the bill as I understand it is primarily limited to torture. Are there reasons that it should be limited to torture, or should we consider expanding the jurisdiction to include other types of human rights violations?
Mr. FOLEY. I would be delighted to expand the category. Obviously, this is the initial response to what I think is an egregious situation where this gentleman is living in my district among many other Haitians who sought America for freedom to get away from his dictatorship and brutality and to find out now that he is living in a gated community with $3.7 million in tax dollars that have come vis a vis the lottery. I think that is humiliating and demeaning to those who are now in our country.
I would welcome any attempts to expand the jurisdiction of the bill and the crimes covered under the bill.
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Mr. SMITH. Thank you, Mr. Foley.
Does the gentleman from Indiana have any questions?
Mr. PEASE. I have no questions, Mr. Chairman. I just wish to thank Representative Foley for bringing this to our attention. The materials you provided are very helpful, though they are very distressing. I appreciate the time you have spent on this legislation. I will be supporting you in any way I can.
Mr. FOLEY. Thank you very much.
Mr. SMITH. Thank you, Mr. Pease.
Mr. Foley, you are welcome to join us up here, as I mentioned.
We will now go to our second panel consisting of several Government witnesses. They are: Gerri Ratliff, Director, Business Process & Re-Engineering Services, and Acting Director, Office of Congressional Relations, Immigration and Naturalization Service; Edward A. Betancourt, Director, Office of Policy Review and Interagency Liaison, Bureau of Consular Affairs, U.S. Department of State; and James Castello, Associate Deputy Attorney General, U.S. Department of Justice. We welcome you all. We will begin when you are ready with Ms. Ratliff's testimony.
STATEMENT OF GERRI RATLIFF, DIRECTOR, BUSINESS PROCESS & RE-ENGINEERING SERVICES AND ACTING DIRECTOR, OFFICE OF CONGRESSIONAL RELATIONS, IMMIGRATION AND NATURALIZATION SERVICE
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Ms. RATLIFF. Mr. Chairman, members of the subcommittee, my name is Gerri Ratliff. I am the Director of Business Process & Re-engineering Services at the Immigration Services Division, INS. I am also excited to be the new Acting Director of INS Congressional Affairs. Today is my fourth day on the job. I am here at this moment under my old hat of working on Immigration Services issues.
Thank you for the opportunity to appear today to discuss H.R. 2883, the Adopted Orphan Citizenship Act. We appreciate the subcommittee's interest in the views of the INS.
Our Nation has a unique history of generosity in granting the precious benefit of citizenship to millions of individuals from every country around the world. The INS views its role in administering the naturalization and citizenship statutes as one of our most important responsibilities.
We do recognize the need for legislation to reduce the current complexity of citizenship laws for children. However, INS cannot support H.R. 2883 for several reasons.
First, it would retroactively grant citizenship at birth to adopted children who were not citizens at birth. Second, it ironically even creates additional differences in the acquisition of citizenship by various categories of biological and adopted children, even children who have the same parents.
Third, the bill could create the perception that individuals who acquire citizenship by naturalization are in essence second class citizens. There is a fundamental distinction in the law between the acquisition of citizenship at birth and the acquisition of citizenship by conferral after birth which we call naturalization.
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H.R. 2883 blurs this distinction by attempting to confer citizenship retroactively to birth based on actions taken after the child's birth. As a result, the bill creates a legal fiction in which the child is deemed always to have been a U.S. citizen, although the United States did not have a claim to the allegiance of the child at any time prior to the child's naturalization.
H.R. 2883 also does not streamline the current citizenship provisions for children. If enacted, some adopted children would automatically become citizens at birth but other adopted children and even some biological children ironically would receive citizenship after birth and only after their parents took affirmative steps to apply for naturalization on their behalf.
Further, in some cases an adopted child could be considered to have been a citizen at birth, not only before the adoption but even before his or her adoptive parents became naturalized citizens themselves.
H.R. 2883 strains to place adopted children into a ''citizens at birth'' category in which they simply factually do not fit. This action could crate the perception that adopted children who currently are subsequently naturalized don't enjoy the same rights and privileges as children born to U.S. citizens.
However, when individuals acquire U.S. citizenship, they do receive all the rights associated with that status regardless of whether their citizenship was acquired by birth in the United States or abroad or voluntary naturalization. To imply even unintentionally that naturalized citizens do not share all these privileges sends an unfortunate message to the millions of proud Americans who are naturalized.
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The only exception to this principle is that naturalized citizens cannot run for President under Article 2 of the Constitution which limits that office to native born citizens. However, the Supreme Court has never definitively ruled on this issue and we believe that H.R. 2883 would not and could not resolve these questions.
It has been suggested that the retroactive citizenship approach of this bill is necessary to conform with State laws on adoption. However, we believe that our approach is more consistent with adoption laws that create and terminate legal relationships as of the date of the adoption but do not attempt to change legal relationships retroactively or try to rewrite the past.
We would be more than happy to work with Congress on alternative ways of streamlining the naturalization of adopted children. We support legislative language such as the adoption provisions of H.R. 3667 recently introduced by Congressmen Delahunt and Gejdenson which would eliminate the currently required second documentation process for parents to naturalize the child they have just adopted. The adopted child would become a U.S. citizen automatically upon entry into the United States as a legal permanent resident.
This legislation also untangles the complex provisions of the law by creating a standard set of conditions for both foreign-born adopted and biological children of U.S. citizens to acquire citizenship.
In conclusion, we strongly support efforts to streamline the acquisition of U.S. citizenship by adopted children and simplify the related provisions of the law. Unfortunately, we believe that H.R. 2883 as currently drafted does not achieve its stated goal of treating adopted and biological children the same, fails to streamline the current citizenship procedures and could even offend some naturalized citizens by the implication that they do not enjoy the same rights as citizens from birth.
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Thank you for the opportunity to present the views of the INS to the subcommittee. I will be happy to answer any questions.
[The prepared statement of Ms. Ratliff follows:]
PREPARED STATEMENT OF GERRI RATLIFF, DIRECTOR, BUSINESS PROCESS & RE-ENGINEERING SERVICES AND ACTING DIRECTOR, OFFICE OF CONGRESSIONAL RELATIONS, IMMIGRATION AND NATURALIZATION SERVICE
Mr. Chairman and members of the Subcommittee, my name is Gerri Ratliff. I am the Director of Business Process and Reengineering, Immigration Services Division, and currently Acting Director of the Office of Congressional Relations. Thank you for the opportunity to appear before you today to discuss H.R. 2883, the ''Adopted Orphans Citizenship Act.'' We appreciate the Subcommittee's interest in the views of the Immigration and Naturalization Service (INS).
Our nation has a unique history of generosity in granting the precious benefit of U.S. citizenship to millions of individuals from every country around the world. The INS views its role in administering the naturalization and citizenship statutes enacted by Congress as one of its most sacred responsibilities. We fully support adoptions and legislation that will address the current inequities in acquisition of citizenship by both biological and adopted children. We also support legislation that will reduce the complexity of citizenship law for children and streamline the documentary requirements for both biological and adopted children to receive citizenship. We share these goals with the sponsors of H.R. 2883.
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The INS, however, cannot support H.R. 2883 for several reasons. First, it is inconsistent with long-standing, fundamental principles of United States nationality laws. Second, rather than addressing inequities, H.R. 2883 creates and further perpetuates differences in acquisition of citizenship by various categories of biological and adopted children. Third, H.R. 2883 creates the perception that individuals who acquire citizenship by naturalization are in essence ''second-class'' citizens. I would like to review our concerns, and then discuss an alternative approach that we believe reaches our common goal without some of the difficulties raised by H.R. 2883.
Section 101(a)(23) of the Immigration and Nationality Act (INA) defines naturalization as ''the conferring of nationality of a state upon a person after birth, by any means whatsoever.'' As the customary norms of citizenship law have developed over the centuries, 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). As is typical of many nations, U.S. citizenship law combines elements of each of these three principles. Citizenship by birth is conferred automatically, based on conditions that exist at the time of birth, and is not a matter of voluntary choice.
H.R. 2883 blurs the fundamental distinction between the acquisition of citizenship at birth and the acquisition of citizenship through conferral after birth, or ''naturalization'' by attempting to confer citizenship retroactively to birth based on actions taken after an alien's birth. In addition to contradicting the statutory definition of naturalization, H.R. 2883 creates a legal fiction in which the alien child is deemed always to have been a United States citizen. However, the United States did not have a claim to the allegiance of the child at anytime prior to the alien child's adoption. While after the adoption it is entirely fitting and proper that the adopted child be considered equal to the adoptive parents' natural children for citizenship and other purposes, we do not believe it is appropriate to attempt to extend the claim retroactively back to birth. It would be illogical to take away an orphan's inheritance from his or her birth parents based on a later adoption on the theory that the adoption retroactively terminated the legal relationship with the birth parents, neither should we attempt to change the legal rights and obligations of citizenship retroactively based upon subsequent events.
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Current law has inequities in acquisition of citizenship by adopted and biological children. We support and have proposed language to repair these inequities, but cannot support the language of H.R. 2883 that puts into place additional distinctions. H.R. 2883 amends only section 301 of the INA and leaves in place the other provisions of the INA that address citizenship for children under the age of 18, specifically sections 320, 321 and 322 of the INA. Section 301 provides for citizenship at birth and is based on the actions of the parents (such as residence) prior to birth of the child. Section 301 does not apply to adopted children. Sections 320 and 321 provide for citizenship after birth and is based on actions of the parents and child that have occurred after the child's birth, namely naturalization of one or both parents and the child attaining lawful permanent resident status. Section 320 and 321 both apply to adopted and biological children. Section 322 provides for citizenship by application and is based on actions of the parents and child that have occurred after the child's birth such as residence and the child's temporary admission to the United States in a lawful status. Sections 320 and 321 make a child a citizen after birth automatically upon fulfillment of conditions, but section 322 requires an affirmative naturalization application. (Please see attached charts for a detailed explanation of these provisions). By placing the provisions of H.R. 2883 in section 301 of the INA, it attempts to make alien children retroactively citizens ''at birth'' based entirely on events and conditions occurring after birth.
To understand the impact of H.R. 2883 on citizenship acquisition, particularly on adopted children, one must view H.R. 2883 in conjunction with the current provisions of the INA listed above. H.R. 2883, along with current sections of the INA, would allow some adopted children to become citizens at birth, while other adopted children would receive citizenship after birth. In addition, certain adopted children acquiring citizenship after birth would receive citizenship automatically, while other adopted children would receive citizenship only after their parents took affirmative steps to apply for citizenship on their behalf. Further, it is entirely possible that an adopted child, through this legal fiction created by H.R. 2883, could be considered to have been a citizen ''at birth'' not only before the adoption, but even before his or her parents became naturalized citizens. Finally, H.R. 2883 provides that certain adopted children will receive citizenship at birth, while biological children, potentially of the same United States citizen parents, would not.
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Although we understand that the intent of H.R. 2883 is to place adopted children in the best possible legal position, we are concerned about the implication that naturalization is somehow a less desirable means of obtaining U.S. citizenship. To strain, as this bill does, to place these adopted children into a ''citizens at birth'' category into which they simply do not factually fit creates the perception that adopted children who are subsequently naturalized do not enjoy the same rights and privileges as children born to United States citizens. Our nation has repeatedly emphasized that when individuals acquire United States citizenship, they receive all the rights and privileges associated with such status, regardless of whether citizenship was acquired by birth in the United States, birth abroad, or voluntary naturalization. To imply—even unintentionally—that naturalized citizens may not share all these rights and privileges sends an unfortunate message to millions of proud Americans who are naturalized.
The only exception to the principle that naturalized citizens stand on an equal footing with native-born citizens is the limitation of eligibility for the office of President of the United States to ''natural born'' citizens in Article II of the Constitution. The Supreme Court has never definitively interpreted this clause as applied to biological children born in the United States or born abroad, or adopted children who acquire citizenship under the INA. H.R. 2883 would not and cannot resolve questions as to its meaning. Further, enacting H.R. 2883 merely to attempt to place some adopted children on a better legal footing raises a highly speculative constitutional claim and is unwise. Based on the lack of judicial action on this point, H.R. 2883 would not answer this question or solve the issue of ineligibility of foreign born children adopted by U.S. citizen parents to serve as President of the United States.
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It has been suggested that the retroactive citizenship approach of H.R. 2883 is necessary for conformity with state laws on adoption. On the contrary, we believe that our approach is more consistent with adoption laws that create and terminate legal relationships as of the date of adoption but do not attempt to change legal relationships retroactively. We agree that legal adoptions should be fully respected and honored, and that adopted children should be considered in all respects equal to birth children once the adoption has taken place. However, our emphasis and focus should be on providing that equality once the adoption has occurred, rather than trying to rewrite the past by potentially voiding and lawful actions that occurred before the adoption based upon the legal relationships that existed at that time.
INS would be happy to work with Congress on alternative ways of streamlining the acquisition of United States citizenship by the adopted children of United States citizen parents. The INS, in close consultation with the Department of State, has proposed legislative language in our views letter on H.R. 2883. The most significant benefit of our proposal is that it would eliminate the U.S. citizen parents' need to complete an entirely separate and second documentation process to acquire citizenship for the child they have just adopted. Under our proposal, upon the adopted child's entry into the United States as a lawful permanent resident, he or she would be a citizen automatically. No application would be required although, if desired, an application could be made to the Department of State for an U.S. passport or to the INS for a certificate of citizenship, as evidence of the acquired citizenship.
Our legislation also provides for fair treatment of all biological and adopted children in terms of acquisition of United States citizenship by redrafting sections of Title III of the INA. We believe that this alternate legislation untangles the complex and duplicative provisions of the INA relating to the acquisition of citizenship by children. It eliminates inequities in the current law by creating a standard set of conditions for foreign-born adopted and biological children of United States citizens to acquire citizenship. This legislation also eliminates in most instances the necessity for the INS to adjudicate citizenship applications on behalf of children adopted by United States citizen parents.
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In conclusion, the INS strongly supports efforts to streamline the acquisition of United States citizenship by adopted children of United States citizen parents and eliminate inequities in the INA in acquisition of citizenship by various categories of adopted children and U.S. citizen children born abroad. Unfortunately, we believe that H.R. 2883 would create additional distinctions between adopted and biological children.
Thank you for the opportunity to present the views of the INS to the Subcommittee. I would be happy to answer any questions.
Mr. SMITH. Thank you, Ms. Ratliff.
Mr. Betancourt?
STATEMENT OF EDWARD A. BETANCOURT, DIRECTOR, OFFICE OF POLICY REVIEW AND INTERAGENCY LIAISON, BUREAU OF CONSULAR AFFAIRS, U.S. DEPARTMENT OF STATE
Mr. BETANCOURT. Mr. Chairman, members of the subcommittee, my name is Edward Betancourt. I currently serve as Director of the Office of Policy Review and Interagency Liaison in Overseas Citizens Services in the Department of State's Bureau of Consular Affairs. I have worked with citizenship issues within the Department of State for more than 20 years.
I am pleased to have the opportunity to provide the views of the Department of State on H.R. 2883, the Adopted Orphans Citizenship Act. I will limit my remarks to 5 minutes and submit a formal statement for the record.
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The Department of State agrees that citizenship procedures for children adopted abroad should be simplified but we have serious concerns about the approach taken by H.R. 2883. When we seek to amend our citizenship laws, we must take great care to ensure that the result is fair and equitable. We believe H.R. 2883, though well intentioned, will produce inequities and other undesirable consequences.
We strongly support the alternative draft legislation that was proposed by the Department of Justice amending sections 320 and 322 of the Immigration Nationality Act rather than section 301 of the act.
The present process for adopting foreign born children already includes a rigorous and thorough examination of the relevant circumstances prior to the issuance of the immigrant visa. We do not propose to alter this process in any way. We do, however, support statutory changes that would permit an adopted child who qualifies for an immigrant visa to acquire U.S. citizenship much more expeditiously than is currently permitted.
In this sense, we are in agreement with one of the important aims of H.R. 2833. Specifically, the Department believes that U.S. citizenship should be conferred automatically upon adopted children born overseas upon fulfillment of the conditions set forth in the draft legislation proposed by the Department of Justice.
While the Department of State strongly advocates diminishing the procedural burdens placed on adoptive parents seeking U.S. citizenship for their children, we feel it is important that measures toward this end should be taken within the context of our naturalization statutes rather than those pertaining to citizenship at birth.
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This would be consistent with the INA's definition of naturalization as the acquisition of citizenship after birth by any means. Thus, the incorporation of these measures within chapter 2 follows logically from the provisions of section 321 and 322 pertaining to the naturalization of adopted children.
One of our greatest concerns about H.R. 2883 is that it would make citizenship for adopted children retroactive to birth. In the view of the Department to confer citizenship at birth upon an adopted child born overseas is to engage in a legal fiction that would create undesirable inequities between adopted children and other persons who acquire U.S. citizenship through naturalization and would, in effect, create two classes of naturalized citizens—those who acquire citizenship retroactively to birth and those who do not.
H.R. 2883 would also disadvantage biological children. It would bestow greater benefits upon adopted children with no connection to the United States at birth than the INA currently gives to certain biological children born abroad to a U.S. citizen parent who do not automatically acquire U.S. citizenship from that parent because of the latter's inability to meet the physical presence requirements of chapter 1, title III.
Another of our concerns about H.R. 2883 is that retroactive conferral of citizenship upon a class of adopted children might be viewed by the child's country of origin as an unwarranted interference that could prejudice future adoptions from that country by American citizens.
We understand and support fully in our daily operations abroad a concept that must underlie all citizenship legislation, that it is totally unacceptable to discriminate in any way against U.S. citizens based upon the manner in which the person acquired U.S. citizenship. Whether a person who is a U.S. citizen had that status at birth does not in any way affect our treatment of that person. We stress in our consular training and at every appropriate opportunity the need to combat discrimination of this kind.
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Our vigorous efforts in this area will continue of course regardless of the fate of H.R. 2883 given the importance we attach to the equitable treatment of all U.S. citizens whether they acquire U.S. citizenship by birth or naturalization.
Thank you very much. I welcome questions from the chairman or any member of the subcommittee.
[The prepared statement of Mr. Betancourt follows:]
PREPARED STATEMENT OF EDWARD A. BETANCOURT, DIRECTOR, OFFICE OF POLICY REVIEW AND INTERAGENCY LIAISON, BUREAU OF CONSULAR AFFAIRS, U.S. DEPARTMENT OF STATE
Dear Mr. Chairman and Members of the Subcommittee, I am pleased to have the opportunity to provide the views of the Department of State on H.R. 2883, the ''Adopted Orphans Citizenship Act.''
Let me first introduce myself. I currently serve as Director of the Office of Policy Review and Interagency Liaison in Overseas Citizens Services in the Department of State's Bureau of Consular Affairs. I have worked with citizenship issues at the Department for more than twenty years.
The Department of State supports foreign adoptions and agrees that citizenship procedures for children adopted abroad should be simplified, but we have serious concerns about the approach taken in H.R. 2883. When we seek to amend our citizenship laws, we must take great care to ensure that the result is fair and equitable. We believe H.R. 2883, though well intentioned, will produce inequities and other undesirable consequences. We strongly support the Department of Justice's alternative draft proposal amending sections 320 and 322 of Chapter 2 of Title III of the Immigration and Nationality Act (INA), rather than Section 301 of Chapter 1 of Title III.
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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. The present process for adopting foreign-born children already includes a rigorous and thorough examination of all relevant circumstances prior to issuance of the immigrant visa. We do not propose to alter this process in any way.
We do support, however, statutory changes that would permit an adopted child who qualifies for an immigrant visa to acquire U.S. citizenship much more expeditiously than is currently permitted. In this sense, we are in agreement with one of the important aims of H.R. 2883. Specifically, the Department believes that U.S. citizenship should be conferred automatically upon adopted children born overseas upon the fulfillment of the conditions set forth in the draft legislation proposed by the Department of Justice.
While the Department of State strongly advocates diminishing the procedural burdens placed on adoptive parents seeking U.S. citizenship for their children, it is important that measures toward this end should be taken within the context of Chapter 2 (''Nationality Through Naturalization'') of Title III and not be incorporated, as envisioned by H.R. 2883, within Chapter 1 (''Nationality At Birth And By Collective Naturalization'') of this same title.
Citizenship can be acquired at birth either by birth in the U.S. or through birth to a U.S. citizen parent or parents able to transmit citizenship. Citizenship can also be acquired after birth by fulfillment of certain requirements. According to Section 101(a)(23) of the INA, naturalization is defined as the acquisition of citizenship after birth by any means. Thus, the incorporation of measures to eliminate procedural hurdles to citizenship for adopted children within Chapter 2 follows logically from the provisions of Section 321 and 322 pertaining to the naturalization of adopted children.
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One of our greatest concerns about H.R. 2883 is that it would make citizenship for adopted children retroactive to birth. In the view of the Department, to confer citizenship at birth upon an adoptive child born overseas is to engage in a legal fiction that would create undesirable inequities between adopted children and other persons who acquire U.S. citizenship through naturalization, and would, in effect, create two classes of naturalized citizens: those who acquire citizenship retroactively to birth and those who do not.
H.R. 2883 would also disadvantage biological children. It would bestow greater benefits upon adopted children with no connection to the U.S. at birth than the INA currently gives to certain biological children born abroad to a U.S. citizen parent who do not automatically acquire U.S. citizenship from that parent because of the latter's inability to meet the physical presence requirements of Chapter 1 of Title III.
For example, a child born overseas to a U.S. citizen parent who is unable to transmit citizenship at birth in accordance with paragraphs (c), (d), (e), or (g) of Section 301 or 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 U.S. to an alien parent and U.S. citizen parent who is not capable of transmitting citizenship can conceivably naturalize as a U.S. citizen in accordance with INA Section 320. 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.
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Another of our concerns about H.R. 2883 is that retroactive conferral of citizenship upon a class of adopted children might be viewed by the child's country of origin as an unwarranted interference that could prejudice future adoptions from that country by American citizens.
We understand, and support fully in our daily operations abroad, a concept that must underlie all citizenship legislation: that it is totally unacceptable to discriminate in any way against U.S. citizens based upon the manner in which the person acquired U.S. citizenship. Whether a person who is in fact a U.S. citizen had that status as of birth does not in any way affect our treatment of that person.
Thus, when we offer consular protection or assistance to a U.S. citizen abroad, it is irrelevant to us whether the U.S. citizen was naturalized, born within the United States, or born abroad to U.S. citizen parents. Similarly, provided we are satisfied that the person is in fact a U.S. citizen, we have no reason to inquire how long the person has been a citizen or at what age he or she acquired U.S, citizenship. We do, however, believe that the law should be consistent with the facts, and that citizenship actually acquired after birth should not be extended through a legal fiction back to a time when it did not in fact exist.
We stress in our consular training and at every appropriate opportunity the need to combat discrimination of this kind. Our vigorous efforts in this area will continue, of course, regardless of the fate of H.R. 2883, given the importance we attach to equitable treatment of all U.S. citizens—whether they acquire U.S. citizenship by birth or naturalization.
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Thank you very much. I welcome any questions either you or any Member of the Subcommittee may have.
Mr. SMITH. Thank you, Mr. Betancourt.
Mr. Castello?
STATEMENT OF JAMES CASTELLO, ASSOCIATE DEPUTY ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE
Mr. CASTELLO. Thank you very much, Mr. Chairman.
I am very pleased to be here. I am James Castello from the Deputy Attorney General's Office. I am pleased to have this opportunity to discuss with you H.R. 3058, the bill Congressman Foley described earlier.
The Department of Justice supports efforts to enhance our ability to remove individuals who have committed acts of torture abroad. The Department recognizes that our current immigration laws do not provide strong enough bars for human rights abusers. We very much appreciate Congressman Foley's efforts, your efforts in holding this hearing today and we look forward to working with you on legislation of this type.
The Immigration and Naturalization Service—I want to make clear I am testifying on behalf of the Department but I wanted to talk a little about what INS has been doing in this area—has long used its resources under its existing mandate in an attempt to deny human rights abusers safe haven in the United States.
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Until now, the legal tools necessary to hold human rights abusers accountable for their action have been limited. So while the Department welcomes the efforts of this bill to provide an additional tool to combat torturers who are present in the United States, it feels strongly that other forms of human rights abuse should also be addressed.
In addition, the Department has concerns about removing jurisdiction over cases relating to human rights abuse from the INS. The Department is developing a draft legislative proposal of its own to address our concerns that we hope to be able to share with you in the near future. As I said, we hope to work with the subcommittee on legislation of this type.
Let me give a bit of a background on our recent efforts in this area. In December 1998, the President issued an Executive order to commemorate the 50th anniversary of the signing of the Universal Declaration of Human Rights. The Executive order was basically aimed at making sure all the relevant executive agencies carry out their responsibilities under our various international treaty obligations in the area of human rights.
Pursuant to that Executive order, an interagency working group was formed which is chaired by the NSC. It has representatives from the State Department, the Justice Department, the Defense Department and the Labor Department.
The order also asked each of the relevant Cabinet officials to designate in his or her department a single contact officer who would be responsible for overall coordination of the implementation of the order. The Attorney General has designated me as the contact officer for the Department of Justice.
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So when we in the Justice Department set about implementing the Executive order, looking at the areas in which we should focus our efforts in implementing our human rights obligations, one of the first things we did was to form a working group within the Department of Justice which would be devoted to enhancing our ability to identify human rights abusers who have found their way into this country and to taking appropriate action against them. The INS is a key participant in that working group, as is the Criminal Division and the FBI.
Current law covers a few things as bars to admissibility to the United States. It also provides protection for people seeking refuge here, both asylum and refugee status for people seeking refuge here from persecution abroad.
To the extent feasible under current law, the INS does not knowingly extend legal immigration status to foreign nationals how are violators of human rights. In the event that information arises indicating that such individuals have been granted immigration status, the Department has a few options. Depending on the facts, these may include criminal prosecution, extradition or removal.
With respect to removal, the present state of the immigration law often does not provide the INS with the necessary tools to remove individuals from the United States. Right now only three types of human rights abuse could prevent someone from entering or remaining in the United States. These are genocide, severe violations of religious freedom and Nazi persecutions. Even these types of conduct are narrowly defined and I have gone into more detail in my written testimony as to exactly how those definitions are narrowed.
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Even with the limitations in the current law, the Department continues to fight against human rights abusers and has taken actions to improve the handling of cases involving allegations of serious human rights abuse. In the regular course of its work, INS continues to screen applicants for admission to this country, to identify possible human rights abusers and it has defeated immigration claims of a significant number of human rights abusers and has additional cases under investigation.
To strengthen its efforts in this area over the past year and through the work of the working group I mentioned before, we have taken a number of steps. I want to briefly tick them off but have described them in more detail in my written testimony.
First, INS has designated two specialized units at headquarters here in Washington to handle cases involving human rights abusers. The National Security Unit of the Office of Field Operations is responsible for coordinating the field investigations of national security cases and these now include human rights abusers cases.
Most of the field agents handling these cases, by the way, happen to be the INS agents who are identified to joint terrorism task forces and they have a close working relationship with their counterpart agents of the Bureau.
Recently, after months of discussion, the INS and the FBI have signed a memorandum of understanding regarding the investigation and prosecution of human rights abuse crimes to make clear what the lines of communication are and to improve the coordination of investigation of these cases between the two agencies.
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The INS Office of General Counsel has also recently created a National Security Law Division and this division is responsible for cases involving national security, including those relating to human rights. The consolidation of these cases in a distinct unit will facilitate the coordination and handling of these cases, both within and outside of INS.
In September of last year, the INS held a comprehensive training conference in Albuquerque, New Mexico for special agents who were assigned to investigate these cases. The presentations made there included presentations from the Center for Justice and Accountability, an organization Congressman Foley mentioned earlier. We agree with him that they have done some significant work. We have been working in cooperation with them.
Mr. SMITH. Mr. Castello, are you nearing the end?
Mr. CASTELLO. Yes. Let me briefly turn to the bill. As I said, we welcome the efforts of Congressman Foley to expand the bars to human rights abusers. As I have also said, we are working on legislation which would go further and Mr. Chairman, you got to this in your question concerning torture to include some other things such as crimes against humanity, war crimes and so forth.
Mr. Foley's bill would also expand jurisdiction of the Office of Special Investigations and the Criminal Division of the Department to investigate and take enforcement action against aliens who have committed acts of torture and genocide.
Currently, OSI's jurisdiction generally pertains only to locating and investigating and when appropriate, denaturalizing and removing Nazis from the World War II period who are present in the United States. The Department opposes the proposed reallocation of those other responsibilities.
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We think the criminal jurisdiction in this area should rest with the Terrorism and Violent Crime Section of the Criminal Division and we think the INS should continue to have responsibility for immigration cases in this area.
In closing, let me note that Congressman Foley, in describing the background for his bill, referred to OSI as an entity that was up and running and that was a strong argument he felt for designating OSI to move into the present day human rights abuser cases. I just want to point out that the INS has over 450 asylum officers who hear asylum claims every day, it has over 600 trial attorneys around the country who appear in immigration courts in asylum and other cases every day and it has over 2,500 investigators around the country. Therefore, we think the INS, given enhanced legal tools can continue to do this job.
[The prepared statement of Mr. Castello follows:]
PREPARED STATEMENT OF JAMES CASTELLO, ASSOCIATE DEPUTY ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE
Mr. Chairman, Congresswoman Jackson Lee, and Members of the Subcommittee, I am pleased to have the opportunity to talk to you today about H.R. 3058, the ''Anti-Atrocity Alien Deportation Act,'' introduced by Congressman Mark Foley. The Department of Justice (the Department) supports efforts to enhance our ability to remove individuals who have committed acts of torture abroad. The Department also recognizes that our current immigration laws do not provide strong enough bars for human rights abusers. We very much appreciate Congressman Foley's initiative in this area, as well as this Subcommittee's willingness to hold this hearing on the matter.
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The Immigration and Naturalization Service (INS) has long used its resources under its existing mandate in an attempt to deny human rights abusers safe haven in the United States. Until now, the legal tools necessary to hold human rights abusers accountable for their action have been limited. The Department welcomes the efforts of this bill to provide an additional tool to combat torturers present in the United States, but feels strongly that other forms of human rights abuse should also be included. In addition, the Department has concerns about removing jurisdiction over cases relating to human rights abuse from the INS. Mr. Chairman and Members of the Subcommittee, the Department is developing a draft legislative proposal to address our concerns that we hope to be able to share with you in the near future. We are ready and willing to work with the Subcommittee and with the sponsor of H.R. 3058 to address these issues and move forward with comprehensive legislation.
HUMAN RIGHTS ABUSERS—IN GENERAL
On December 10, 1998, in commemoration of the 50th anniversary of the Universal Declaration of Human Rights, the President signed an Executive Order declaring that ''[a]ll executive departments . . . shall maintain a current awareness of United States international human rights obligations that are relevant to their functions and shall perform such functions so as to respect and implement those obligations fully.'' Exec. Order No. 13107, 63 Fed. Reg. 68,991 (1998). This Executive Order established an Interagency Working Group (IWG), chaired by the National Security Council, in which the Departments of Justice, State, Labor and Defense participate. The order also asks each relevant cabinet official to designate in his or her Department ''a single contact officer who will be responsible for overall coordination of the implementation of this order.'' The Attorney General has designated me to be the contact officer for the Department of Justice.
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Early last year, the Department formed its own working group devoted to enhancing our ability to identify human rights abusers who have found their way into this country and to taking appropriate action against them. The INS is a key participant in this working group, which also includes the Criminal Division and the Federal Bureau of Investigation (FBI). Through this process, the Department has determined that its ability to uphold its commitment to human rights obligations could be improved through legislation targeting human rights abusers.
Let me begin by outlining what current law covers and then tell you about some of the improvements in our handling of these cases that have come about through our working group on human rights abusers. The Immigration and Nationality Act (INA) provides protections for aliens fleeing from human rights abuses. As you know, the granting of asylum status and the admission of refugees to this country are two of the many mechanisms used by the United States to provide individuals with protection. The goal of these protection regimes is to grant status to those who meet the legal standards, to deny those who are barred, and to exercise discretion appropriately. To preserve the integrity of these protection regimes, it is imperative that those committing human rights abuses not be afforded status that is designed to protect victims of human rights abuses.
To the extent feasible under current law, the INS does not knowingly extend legal immigration status to foreign nationals who are violators of human rights. In some cases, however, individuals conceal their identities and their pasts in order to acquire such immigration status. In the event information arises indicating that such individuals have been granted immigration status through fraud, misrepresentation, or otherwise illegal acts, thorough investigations are conducted and appropriate action is taken. The Department currently has a number of options. Depending upon the facts, these may include criminal prosecution, extradition, or removal from the United States.
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With respect to removal, however, the present state of the immigration law often does not provide the INS with the necessary tools to remove individuals from the United States, even when they have allegedly committed acts considered to be atrocious human rights abuses. Right now, only three types of human rights abuse could prevent someone from entering or remaining in the United States. The types of prohibited conduct include: (1) genocide; (2) particularly severe violations of religious freedom; and (3) Nazi persecutions. Even these types of conduct are narrowly defined.
For example, genocide applies only to actions committed against a national, ethnic, racial or religious group. To constitute genocide, those actions also have to be committed with the specific intent of destroying a protected group in whole or in part. Further, the genocide bar applies only to those ''engaged'' in genocide, which arguably does not include those who may have incited, assisted, conspired or attempted to engage in genocide. Similarly, to be barred for particularly severe violations of religious freedom, the individual must be a foreign official who has engaged in those violations in the last twenty-four months. Those who have ''ordered, incited, assisted or otherwise participated in'' persecution are statutorily barred from admission as a refugee and from obtaining asylum status or withholding of removal, but they are eligible to enter the United States, to adjust their status to lawful permanent residence, and to obtain United States citizenship.
Even with the limitations in the current immigration laws, the Department continues to fight against human rights abusers and has taken actions to improve the handling of cases involving allegations of serious human rights abuse. In the regular course of its work, INS continues to screen applicants for admission to this country to identify possible human rights abusers. In addition, INS has defeated immigration claims of a significant number of human rights abusers and has additional cases under investigation for possible action against aliens in this country on the basis of past human rights abuse. To strengthen its existing efforts, INS has taken additional steps in the past year which I would like to highlight.
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First, INS has designated two specialized units at the Headquarters level to handle cases involving alleged human rights abusers. The National Security Unit of the Office of Field Operations (formerly known as the ''Office of Counterterrorism'') is responsible for coordinating field office investigations of national security cases, including those involving alleged human rights abusers. Most of the field agents handling these cases work under the auspices of the Joint Terrorism Task Forces (JTTF's), which are local interagency task forces devoted to the detection and investigation of international terrorism. The FBI has the lead and directs all JTTF activity, but INS, the Customs Service, and state and local law enforcement agencies also play key roles. Thus, the INS and FBI are able to use their collective resources for the preemption and investigation of these cases.
Recently, after months of discussion, the INS and the FBI signed a Memorandum of Understanding (MOU) regarding the investigation and prosecution of human rights abuse crimes. The MOU promotes the effective and efficient investigation and prosecution of human rights abuses by setting out the procedures to be followed and the respective responsibilities of each agency. This coordination between the FBI and the INS will conserve investigative resources and improve communications in connection with these cases.
The INS Office of General Counsel also recently created the National Security Law Division. This Division is responsible for cases involving national security, including those relating to alleged human rights abusers. This Division assists in the investigation and administrative prosecution of these cases. Previously, these cases were being handled among the other divisions of the office. The consolidation of these cases in a distinct unit will facilitate coordination in handling these cases both within and outside of the INS.
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In September 1999, the INS held a comprehensive training conference for the special agents assigned to investigate these cases. The INS Office of General Counsel participated in the training and provided guidance on the legal issues surrounding human rights abusers present in the United States. Presentations were also made by three individuals from the Center for Justice and Accountability (CJA), a non-profit organization established to respond to the problem of human rights abuse by combining victim outreach and rehabilitation with legal advocacy and representation. CJA representatives discussed their experiences with victims of human rights abuse and their attempts to file domestic civil lawsuits against abusers. Such training reinforces that these cases are a priority for the INS and ensures that the agents handling them have the most up-to-date information available.
The Department's working group has also been charged with improving the acquisition and exchange of information and evidence on human rights abuse cases. Valuable information relevant to human rights abuse originates from many sources, both within the government or from outside sources. INS and the Department of State have accordingly signed a Statement of Mutual Understanding with Canada setting out the policies and procedures for the exchange of information between the two countries. This allows the United States Government to detect, apprehend and remove human rights abusers who may have come to the attention of the Canadian government. The Department has also met with representatives from Amnesty International and CJA to discuss common efforts, the parameters of a working relationship, and the type of information necessary for appropriate action to be taken.
H.R. 3058
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Now let me turn to the bill under consideration today, H.R. 3058, which is entitled, the ''Anti-Atrocity Alien Deportation Act.'' The Department welcomes the efforts of Congressman Foley and others in strengthening our immigration laws as they relate to torturers. Clearly, there is a need for legislative action to make human rights abusers inadmissible to and removable from the United States. We do, however, have concerns about the legislation.
First, by targeting only those human rights abusers who have committed torture, the bill is too limited. The Department believes that additional grounds of inadmissibility and removability relating to other types of human rights abuse should be added to the bill. Other types of conduct that should be included are persecution, war crimes, and crimes against humanity. As I mentioned earlier, the Department has been drafting more comprehensive legislation that would cover these additional forms of abuse. We hope to forward this draft bill for the Subcommittee's consideration by the end of this month.
Second, the bill would expand the jurisdiction of the Office of Special Investigations (OSI) in the Criminal Division of the Department to investigate and take enforcement action against aliens who have committed acts of torture and genocide abroad. OSI's jurisdiction generally pertains to locating, investigating, and, when appropriate, denaturalizing and removing Nazis from the World War II period who are present in the United States. (OSI also conducts these activities in connection with Axis-sponsored persecution perpetrated by Nazi Germany's European allies, as well as acts of persecution carried out by the forces of Imperial Japan.) The Department opposes this proposed reallocation of responsibilities. While OSI has done a commendable job of carrying out its important mission, the Department believes that authority to pursue criminal prosecution of torture and genocide cases should remain with the Criminal Division's Terrorism and Violent Crime Section. Moreover, we believe that the INS should continue to bear responsibility for immigration cases involving human rights abuses.
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The INS is the Department's immigration expert. As a result, the INS already has extensive experience in making determinations about persecution and torture. In FY 1998, the INS adjudicated 85,737 affirmative asylum claims. In FY 1999, the INS adjudicated 55,316 affirmative asylum claims. For those fiscal years, The Executive Office for Immigration Review (EOIR) heard 25,058 and 24,261 claims, respectively. When INS adjudicates refugee, asylum and withholding claims, its officers must determine not only whether the alien has been or will be subject to persecution, but also whether the alien participated in persecution. In determining whether an alien has committed human rights abuses many of the same issues and factors, such as country conditions, would arise and need to be resolved. The INS Resource Information Center (RIC) is devoted to researching country conditions and preparing materials for INS officers adjudicating applications and for INS attorneys representing the agency position before EOIR. The RIC provides country conditions information on virtually all countries from which aliens claim asylum, withholding of removal or protection under the Convention Against Torture.
Present day human rights abusers can be encountered at any point in their immigration history. For example, information that an individual may have engaged in human rights abuse may be discovered when INS adjudicates an application for admission to the United States, or when a defensive application for immigration relief is made during removal proceedings. Or the abuse may only come to light when an alien pursues a further benefit, such as permanent residence or naturalization. Many times allegations of human rights abuse may be reported by another individual or may be uncovered in an unrelated investigation. The INS is best situated to continue with responsibility for these cases, including the identification, arrest, charging, detention and eventual removal of present day human rights abusers.
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Further, the INS already has the investigative experience and resources to take responsibility for human rights abusers. The Department anticipates that some of the evidence used against modern human rights abusers will derive from the nation's intelligence and law-enforcement agencies. In the course of litigating over 300,000 cases in immigration court each year, particularly in cases involving alien terrorists, the INS has developed communication and procedural protocols with those agencies that permit the review of classified and otherwise sensitive information. Again, as I said earlier, the INS and the FBI have signed an MOU relating to the investigation and prosecution of these cases.
The INS has a large network of agents and inspectors that provides the flexibility to investigate human rights abuse throughout the world. Immigration Inspectors are trained to admit admissible aliens to the United States and to deny those barred from entering. Also, there is a corps of asylum and refugee officers available to adjudicate relief applications for protection in the United States. These human resources allow the INS to respond to humanitarian crises as they occur, as was the case last year in Kosovo and in the early 1990's in Haiti. Many of these cases, however, against human rights abusers will be litigated in immigration courts. INS's National Security Law Division can draw on more than 600 attorneys, who represent the United States government daily in immigration court. In the course of this representation, INS trial attorneys have acquired a wide knowledge of international treaty obligations and a vast understanding of the country conditions that spawn human rights abuses all over the world.
Mr. Chairman and Members of the Subcommittee, that concludes my prepared statement. I would be pleased to attempt to answer your questions at this time.
Mr. SMITH. Thank you, Mr. Castello.
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Ms. Ratliff and Mr. Betancourt, let me address my first questions to you. I will try to summarize your three areas of concern. One, H.R. 2883 attempts to make individual citizens retroactively citizens at birth based entirely on events and conditions occurring after birth; two, it blurs the distinction between acquisition of citizenship at birth and naturalization; and three, it favors adoptive children over certain biological citizens.
My question to you both is simply this. Even if that is all true, what are the negative consequences of those provisions?
Ms. RATLIFF. I think at the heart of the matter is that we are not raising merely a drafting objection. Yes, we want to see these provisions streamlined, not by amending section 101, but by amending section 320 and 322. However, it goes beyond what may sound like a technical drafting objection to sort of the heart of citizenship philosophy which really has two levels.
One, we cannot support creating a legal fiction where children become citizens at birth who were not citizens at birth, who had not fulfilled the requirements for their citizenship at the time of their birth; and second, the important perception that could flow from that legal fiction. Why is it so important to create this legal fiction? If a naturalized citizen sees that adopted children need to be created citizens at birth, even though they weren't, aren't they then going to feel it must not be good enough to be a naturalized citizen. Why is it that a naturalized citizen can't also pretend to be a citizen at birth? We are saying there is no difference between the rights and privileges of a citizen from birth or through naturalization, so there is no need to create this legal fiction and squeeze adopted children into section 301 who don't fit there.
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Mr. SMITH. Mr. Betancourt?
Mr. BETANCOURT. There is another point that we alluded to in our testimony. Adoption of children often occurs in a foreign country in a rather fragile environment in terms of the public perception of persons in that country. Countries often revisit their adoption laws and were the United States to extend citizenship retroactively to birth to children born in that country, there could be unpleasant consequences in terms of perception in that country, both officially and at a public level as to whether this represented some kind of statement about the adequacy of the citizenship that had been conferred by that country on its children. It may well be a perception issue but it could cause some difficulties.
Mr. SMITH. Mr. Castello, in regard to H.R. 3058, I understood you to say that one of the advantages of having INS oversee the investigations is because I think you mentioned that INS has something like 2800 investigators around the country and so forth.
On the other hand, OSI has a good track record of having the appropriate expertise and of having done a good job in the past. Is that what it comes down to, personnel versus expertise, or is there some other reason why OSI is not the appropriate Agency or department to handle the investigations?
Mr. CASTELLO. No, I don't think it is just a comparison of personnel versus expertise. I want to say obviously the Department is very proud of the work that OSI has done. I think they have taken on a very difficult task with commendable efforts.
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The INS does have a lot of expertise in this area. The Nazi era war crimes have tended to be a discrete unit of cases. They have a lot of historical documentation which we often do not have in the case of modern human rights abuser cases. A lot of the information that we acquire with respect to modern human rights abusers comes to us in the course of asylum hearings, for example. People say remarkable things in asylum hearings, not only about others but sometimes about themselves.
The INS adjudicates through its hearing officers or appears before the immigration judges in many thousands of cases every year. Through those cases, it has become very adept at judging what is persecution, what are human rights abuses and learning a lot about country conditions in individual countries. I think they are very well positioned to continue to take on this duty.
Mr. SMITH. Thank you, Mr. Castello.
I don't have any other questions.
The gentleman from Indiana, Mr. Pease, is recognized for his.
Mr. PEASE. Mr. Castello, following up the chairman's question, I understand your position about the personnel that deal with asylum matters. It would appear to me though that those personnel most often deal with people who are oppressed rather than oppressors. Is that not the case?
Mr. CASTELLO. Most often, I think that is correct because as I said, we have thousands of asylum cases every year, but they do come in contact with people who we believe are human rights abusers.
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Mr. PEASE. Is it possible to share that information within units of the Department of Justice now? Do you need statutory assistance to be able to do that if you can't presently?
Mr. CASTELLO. We certainly can I think share information among jurisdictions. Like any large Agency, we always face the problem of coordination. We have worked very hard in the last year to improve the coordination within the INS.
If we were to pass, for example, Mr. Foley's bill in its current incarnation, I think what we would see is among all the cases INS is currently looking at for human rights abuses, if they thought the allegation involved torture, then they would suddenly shift it over to a unit that is not even within INS, it is in the Criminal Division. We just feel that it makes much more sense to have a cadre of people in the INS who are in touch with all the different proceedings in which human rights abuse information may come to light and then can focus their efforts.
Mr. PEASE. What is the current status of coordination between OSI and the INS?
Mr. CASTELLO. There is obviously coordination on the cases that OSI handles because sometimes OSI has a need for assistance. For example, INS has detention authority, so there certainly is coordination between OSI and INS.
In terms of developing the cases, the work there has been focused really within OSI and there has been a great deal of documentary evidence that has been accumulated by OSI from the Nazi era.
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Mr. PEASE. Assuming the bill passes and the additional responsibility was created, would it not be necessary to add additional personnel in the units you are suggesting just as it would be important to add them in OSI? It doesn't appear to me that we are going to avoid, nor should we avoid, adding personnel in either scenario that is presented today.
Mr. CASTELLO. Congressman Pease, no agency says that it doesn't want more money, so you put me in an awkward position, but I think given the resources we have right now, INS is working on a significant number of cases and OSI is also working on a significant number of cases. They are working at full level right now. Whether more resources would be useful, I leave that to the Members of Congress.
Mr. PEASE. I want to ask some questions of the other witnesses. If there is time left, I will come back.
Ms. Ratliff, I do understand the philosophical argument you made about distinctions between naturalized citizens who are made citizens retroactively and other naturalized citizens, but I am thinking of the practical experience in my own State, at least when I was still practicing law, I don't know if it still is, in adoptions. That is that we do create a legal fiction, at least in my State, and issue birth certificates after an adoption that lists the adoptive parents as the parents of the child at the time of birth.
How does the Department reconcile your argument with that practice which I assume obtains in most States?
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Ms. RATLIFF. I am not an adoption law expert and I don't know if what you are describing in your home State applies in every State but I do know that is true at least in some States, they do issue birth certificates retroactively, but we still feel that in general, the trend of State adoption laws is not to completely rewrite the past, but to treat the child the same as a biological child from the date of adoption. There are factual aberrations such as the one you are pointing out with the birth certificate but in general, the overarching adoption philosophy is to not completely erase the past. In fact, there even is a trend to honor that child's original heritage and not wipe it out, not pretend it never happened. We are just trying to strike the right balance between treating the child equally and not inappropriately retroactively creating this legal fiction.
We agree there is a balance there but we really do feel that our legislative proposal strikes the better balance between those two competing factors.
Mr. PEASE. Mr. Betancourt?
Mr. BETANCOURT. We have searched to see if there is some specific, tangible benefit that would accrue by making citizenship retroactive. I can understand certainly in the adoption area there would be but we haven't been able to identify a particular, specific benefit that would be accorded that would not otherwise be present.
Mr. PEASE. Fair enough, but it seems to me that the philosophical argument you make could be reversed with the argument that children born in the United States and adopted at least in my State have a birth certificate issued that lists their adoptive parents, and the naturalized citizen then would be treated differently from those who are American born. So there is still going to be a distinction in the perception between the two unless they are all treated the same, at least in my State.
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It just seems to me the philosophical argument can go in the other direction as easily as the way you have presented it?
Mr. BETANCOURT. There is a certain tension in effect between citizenship law and adoption law. It is true, different premises.
Mr. PEASE. Mr. Castello, since we are on the subject of potentially broadening OSI's authority, do you think even if we didn't do the things Congressman Foley proposes, which as I said I support, do we need to be doing other things in the existing law to assist the OSI's work in its Nazi cases? Have you found you have need for statutory change to strengthen your ability to do the things you are currently doing?
Mr. CASTELLO. I am not aware of any proposals from the Criminal Division to expand their current jurisdiction.
Mr. PEASE. Could you check and see if they have run into circumstances where they believe there are individuals that should be pursued but because of the way the statute currently is drafted or limited in its scope, they are unable to proceed and if that is the case, advise the committee?
Mr. CASTELLO. Sure. In further answer to your earlier question, one of the ways in which we have tried to reach out and improve our coordination on these human rights abusers cases is to develop a closer working relationship with our counterparts in Canada. One thing that has been interesting has been to see the way they have developed their program.
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For the Nazi era war criminals, the lead agency in Canada is the Department of Justice but for the human rights abusers of the contemporary era, the lead agency has been Citizenship and Immigration Canada which is a separate agency in Canada.
They have found somewhat the same thing we have that when it comes to the wide range of human rights abuses in the current era, that it makes sense to have immigration officials take the lead.
Mr. PEASE. Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Pease.
Let me thank the witnesses as well for your testimony today.
We will now go to the third panel consisting of: Susan Soon-Keum Cox, vice president, Public Policy and External Affairs, Holt International Children's Services, and Maureen Evans, executive director, Joint Council on International Children's Services.
We welcome you both, and Ms. Cox, we will begin with your testimony.
STATEMENT OF SUSAN SOON-KEUM COX, VICE PRESIDENT, PUBLIC POLICY AND EXTERNAL AFFAIRS, HOLT INTERNATIONAL CHILDREN'S SERVICES
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Ms. COX. Mr. Chairman and members of the committee I want to thank you for the opportunity to be here today and to testify on behalf of H.R. 2883, the Adopted Orphans Citizenship Act. I especially wish to thank you, Mr. Chairman, for your important role in this significant legislation. I can tell you on behalf of the international adoption community, we are very pleased to have you so involved in this issue.
My name is Susan Soon-Keum Cox and I am vice president of Public Policy for Holt International Children's Services in Eugene, Oregon. Holt International pioneered intercountry adoption from Korea in the mid-1950's and in that time, we have placed about 50,000 children for adoption.
Intercountry adoption has become an accepted global institution which unites homeless children with permanent, loving families. It is a process which requires compassion, commitment and enormous perseverance on the part of parents adopting children from abroad.
An ongoing issue for intercountry adoptees and the families who adopt them is the necessity to always validate that you are real. Children adopted internationally are almost always of a different culture and ethnicity of their adopted family. This very fact makes their adoption very publicly unique.
For adopted children to truly be equal and full participants in their family as their nonadopted children, they must be assured the same rights and benefits. This includes, of course, the privileges of citizenship in their adopted country.
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There are few acquisitions more precious or more valued than that of citizenship. However, for international adoptions, adoptees securing citizenship requires enormous effort, time and expense. The present process of naturalization for adopted children is cumbersome, not only for the adoptive families but for the governmental authorities required to implement them.
There is no benefit to the present system, there is no value added, no additional safeguards or protections. It is another layer of bureaucracy that creates a barrier to internationally adopted children of U.S. citizen parents becoming full participants in our society.
The current process also contradicts the intent of sending countries who assume that children who leave for the purposes of adoption will share with their adoptive parents the citizenship of their newly-adopted country and nationality.
&