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The Foundling Statute

by Chris Nugent and Doug Burnett of the Holland & Knight Community Services Team

November 29, 2006 was a special day for three children and USCIS. A lot had happened since the parentless children had been found by Newark police rummaging for food in a dumpster years ago. For one of the children, an obscure statute passed by Congress in 1940 was the key for a determination that she was a U.S. citizen as of the date of her birth.

The law, rarely, if ever used, is known as the "Foundling Statue" (INA 301(f)) and curtly provides that "a person of unknown parentage found in the United States while under the age of five years, until shown, prior to obtaining the age of twenty-one years, not to have been born in the United States," shall be citizens of the United States at birth. There are no reported cases where this statute has been successfully used in the past 65 years, but that changed on November 29th.

The circumstances leading up to this wonderful event are the culmination of the years of combined efforts of a caring Family Court Judge in New Jersey, the Hon. Richard C. Camp, the tireless efforts of a New Jersey State Attorney, Chris Monahan, the dogged determination of two court appointed CASA volunteers, Miriam Slipowitz and Ester Jennis, retired New Jersey teachers, and the wise stewardship of a DYFS worker, Belinda Benson.

About three years ago, CASA volunteers approached Holland & Knight LLP Washington Senior Counsel Chris Nugent with an unusual request for pro bono legal assistance on behalf of four children, all wards of the Family court of New Jersey. The request was to get the children U.S. citizenship. Chris contacted his colleagues New York Partner Doug Burnett and Associate Wayne Parker, who agreed to take the case and see it through to the end.

The attorneys met with Chris Monahan, the CASA volunteers, and the children to gather the facts. What they found, as documented in numerous court findings and orders, was a tragic story of abuse and neglect. Legally, the story which emerged was not encouraging.

During the investigation ordered by the court, including DNA testing, it was determined that the women whom the children considered their mother, was a biological stranger. Worse, the children learned, that although they had been raised together by the woman since infancy in Florida and New Jersey, all of them were biological strangers. In the case of two of the children, their Newark birth certificates were determined not to be authentic. The same occurred with the other two children with their Certificates of Birth Abroad supposedly issued by the U.S. Embassy in Haiti.

The Court ruled that the children were victims of abuse and neglect and recommended that the woman who raised them be investigated by the Attorney General for welfare fraud, but she died of cancer before any steps were taken. With her death, the circumstances of how the children came to be in the United States were buried as well.The net result was four young teenagers, who only knew the United States, with no documents or relatives to say how or where their lives began.

For Doug and Wayne, the first dilemma was trying to determine the origins of the orphan kids who had no known blood relatives in the United States or elsewhere. Inquiries by the attorneys and CASA volunteers found no answers in the United States, Haiti, or anywhere else. For three of the children, the only avenue was to apply for Special Immigration Juvenile ("SIJ") status with USCIS. While the foundling statute was considered, there was a total absence of documentation or other evidence which could show that the children were present in the United States prior to the age of five years old. School records provided documentation from the age of five years on, but nothing before.

For one young girl, however, CASA volunteer Ester Jennis had been able to speak to the woman who had raised the children; she pressed her on the early history of the children. For this one child, the women recalled the last name of a doctor in Newark. With old- fashioned telephoning and tireless work, the CASA volunteer was able to track down the doctor who was still practicing at a hospital in Newark. The doctor, of course, had no recollection of treating the young girl 15 years ago, but he did have a record of her visit. This medical record included his recorded height and weight measurements for the girl which put her at about two years old. A subsequent age determination by a forensic dentist using the child's teeth to determine her present age was consistent with the pediatrician's observation. With this proof in hand, the lawyers dusted off the foundling statute and began detailed research.

Although the research provided no insight into what Congress had in mind when it passed the foundling statute, the lawyers were convinced that the statute applied to their minor client. She agreed to file for a declaration of citizenship based on the foundling statute.

For all the children, timing was critical. All of them were in high school and hoping to go to college. Without citizenship or a green card, they could not get a social security card which made obtaining a legal job impossible. A driver's license and even admission to a college were only dreams unless a green card or citizenship could be obtained.

Holland & Knight attorneys put together applications for the SIJ status for three of the children and secured the support of then Senator Corzine. One application was granted after about a year, but the other two applications lingered in the system until November 29, 2006 when USCIS conducted the final interview and authorized the issuance of green cards.

With respect to the fourth child, November 29th was an even bigger day. The issues involved in the foundling statute were new ground for USCIS in Newark. How the agency would respond was unknown. The attorneys had prepared their client for a formal interview followed by a denial. At that point, the issue could then be decided by a federal judge. To a young lady, the prospect of additional years of litigation during which time she would be legally unemployable, unable to get a driver's license, or get into college was tormenting. She arrived at USCIS dressed in her best outfit with her hair nicely styled, nervous, and worried.

To the joy of all concerned, USCIS, upon careful evaluation of the documentation provided, concluded that the young girl had been found in the United States prior to the age of five years, with no known relatives or parents, and had lived in the United States continuously since then. Based on the foundling statute, the child was given a certificate of citizenship which declared her U.S. citizenship since the date of her birth over 18 years ago. The expression of pure joy on her face, those of the CASA workers who had been the guardian angels for these children for so many years and that of Belinda Benson of DYFS was a memory the lawyers would never forget.

Doug observed that "lacking a valid birth certificate and having no known blood relatives makes obtaining jobs, a driver's license, and college education all but impossible. He added "when Congress passed the foundling statute, it was custom tailored for this young girl's plight."

About The Author

Chris Nugent works as a Senior Counsel with the Community Services Team of Holland & Knight LLP in Washington, D.C. He is responsible for developing immigration-related pro-bono projects and trainings for firm offices and casework involving immigration and public policy.

Doug R. Burnett practices primarily in the areas of telecommunications (submarine cables) and international and maritime law litigation and arbitration in the New York office of Holland & Knight LLP.

The Holland and Knight Community Services Team (CST) is a structured, institutionalized department within the Holland and Knight, drawing on all of the firm's resources. The CST has a sophisticated and extensive pro bono program staffed by full-time experts in their fields of practice.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.