How can Madonna legally bring a foreign child to the U.S.?

As anyone who follows the news knows, Madonna and her husband, Guy Ritchie, have adopted a Malawian baby, with considerable public controversy. The matter raised various issues regarding whether Madonna had received preferential treatment. The Telegraph of the U.K. reported on October 16, 2006 that

Madonna and her husband, Guy Ritchie, have been granted an interim adoption of a Malawian baby, giving them temporary custody of the child for 18 months, the singer's spokeswoman said tonight….

On the same day Madonna took the little boy from his home to start a new life, human rights groups filed court documents asking a judge to review the adoption.

They are concerned that the process has been fast-tracked due to Madonna's celebrity, and claim the authorities may be bending the rules in return for the singer pledging $3 million to help children in Malawi, one of the world's poorest countries.

Regarding the child’s immigration status, the Telegraph of the U.K. also reported:

An immigration official at the airport in Lilongwe, Malawi, said David was believed to be heading for Britain via South Africa. He said the baby had also been issued with a US visa.

See Madonna baby flown out of Malawi, Telegraph.

In terms of U.S. immigration law (i.e., the “Immigration and Nationality Act” known as the “INA”), there are two principal provisions which grant U.S. immigration status to an unrelated, adopted child (i.e., a visa). One provision is the so-called "two-year provision" which is for “a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years.” This provision would obviously not be applicable since Madonna has obviously not been residing abroad with the child for at least two years; indeed, the child is purportedly only a year old (born on September 24, 2005).

The more common provision is INA, Section 101(b)(1)(F), which grants immigrant classification to foreign children who have been adopted or will be adopted by U.S. citizens. The U.S. State Department summarizes this provision as follows:

Under this section of the law [INA, Section 101(b)(1)(F)], both the child and the adoptive parents must satisfy a number of requirements established by the INA and the related regulations, but the two-year residency requirement is eliminated. Only after it is demonstrated that both the parents and the child qualify, can the child be issued a visa to travel to the United States.

Specifically, INA, Section 101(b)(1)(F) reads as follows:

(F) (i) a child, under the age of sixteen at the time a petition is filed in his behalf to accord a classification as an immediate relative under section 201(b), who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption; who has been adopted abroad by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who personally saw and observed the child prior to or during the adoption proceedings; or who is coming to the United States for adoption by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who have or has complied with the preadoption requirements, if any, of the child's proposed residence: Provided, That the Attorney General is satisfied that proper care will be furnished the child if admitted to the United States: Provided further, That no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act; or ….

In Madonna’s case, the child was in an orphanage in Malawi (see Madonna adopts Malawian boy, his father says CNN, October 2006. Retrieved 2006-10-11), after his mother died, and his father, Yohane Banda, felt he was too poor to take care of him. According to the International Held Tribune: "Yohane Banda told The Associated Press Wednesday he had entrusted his son to a Malawian orphanage after his wife died of childbirth complications, saying he was too poor to raise him alone."

Nonetheless, since the child still has one parent, he does not qualify as an “orphan” for purposes of INA, Section 101(b)(1)(F), even if the surviving parent is unable to care for the child. Instead, in order to qualify for the requisite U.S. immigration benefits, the father--the “surviving parent”--must be “incapable of providing the proper care” AND must have “in writing irrevocably released the child for emigration and adoption”.

In addition, under INA, Section 101(b)(1)(F), requires that the child have already been adopted abroad, or who is coming to the U.S. to be adopted provided that the prospective adoptive parents have “complied with the preadoption requirements, if any, of the child's proposed residence”.

According to media reports, the father purportedly signed the adoption documents releasing the child for adoption; however, he initially claimed that he did not know what he was signing. According to Reuters:

Banda told Reuters he signed papers he could not understand, but government officials assured him that the agreement was similar to what he had with the orphanage -- to nurture and educate the boy but not take him away for good. ‘I cannot read and write so I relied on what the (government) officials told me that the papers said Madonna would look after the child the way the orphanage planned to educate him and then he comes back to me,’ Banda said. Asked if he had any copies of the agreements he signed with Madonna, Banda said: ‘I am still waiting to get my copies.’ He said the copies were still in the hands of the government officials who mediated the agreement. Banda said he would wait to see them before deciding what action to take after consultations with his mother and other family members.

See Malawi father says had no idea Madonna adopting son, Reuters.

After initially claiming that he did not know what he was signing, Banda later changed his position, and now supports Madonna’s adoption, and criticizes the human rights groups for challenging the adoption. According to the BBC, Banda was in court on Friday, October 27, 2006, “protesting against moves to halt the adoption”, brought by “an alliance of 67 groups [which] is pushing for the right to challenge the interim adoption order which let Madonna take one-year-old David out of the country.” The case has been adjourned until November 13, 2006. See “Madonna adoption case adjourned”, BBC.

Therefore, unless the father changes his mind, it would appear that the first two elements of INA, Section 101(b)(1)(F) have been met (i.e., the “surviving parent”--must be “incapable of providing the proper care” AND must have “in writing irrevocably released the child for emigration and adoption”). However, that still leaves the requirement that the adoptive parents have “complied with the preadoption requirements, if any, of the child's proposed residence”. In other words, U.S. law requires that the law of the foreign state, Malawi in this case, have been complied with.

Regarding Malawi law, the human rights groups are adamant that Malawi law was not complied with, and intend to move forward with their legal challenge despite the father’s acquiescence, claiming that it would set a bad precedent which could endanger children. According to the BBC:

A spokesman for the rights groups, Maxwell Matewere, said they would not "move an inch to stop the legal action" despite Yohane Banda's appeal. Mr Matewere, director of the Eye of the Child organization, told AFP news agency it was clear that David should not have been allowed to leave the country.

He argues that Malawi law bans foreign adoptions and that Madonna's wealth and status simplified the process.

An open letter to Madonna from Eye of the Child says: "Inter-country adoption is prohibited under the Malawi current Children Adoption Act as section 3(5) reads 'an adoption order shall not be made in favour of any applicant who is not a resident in Malawi or in respect of any infant who [is a] resident'." The letter ends: "God bless you for the motherly and loving heart."

See “Madonna adoption case adjourned”, BBC.

Consequently, it would seem that Madonna would NOT have needed any special treatment under U.S. law to obtain a U.S. visa for the child since the father apparently signed the necessary adoption documents, and the Malawi legal proceeding would make it appear--on its face at least--that Malawi law was complied with. Nonetheless, if the human rights groups are successful in their challenge, i.e., by proving that Malawi law was not complied with, then that could undercut the basis in U.S. law for the visa. So, ultimately, the U.S. immigration benefits appear to turn on whether Malawi law was complied with or not.