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Can The Center Hold? The Vulnerabilities Of The Official Legal Regimen For Intercountry Adoption, David M. Smolin Jan 2015

Can The Center Hold? The Vulnerabilities Of The Official Legal Regimen For Intercountry Adoption, David M. Smolin

David M. Smolin

Amidst controversy, a legal regimen for intercountry adoption (ICA) has been developed over the past twenty-five years. The primary constituent parts are the 1989 UN-based Convention on the Rights of the Child (“CRC”) and the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Convention). Since the creation of those conventions, international and national legal efforts have focused on delineation and implementation of a set of standards based on their principles in the attempt to create a stable and reliable intercountry adoption system. This project of the creation of a stable and reliable intercountry …


An “I Do” I Choose: How The Fight For Marriage Access Supports A Per Se Finding Of Persecution For Asylum Cases Based On Forced Marriage, Natalie Nanasi Feb 2014

An “I Do” I Choose: How The Fight For Marriage Access Supports A Per Se Finding Of Persecution For Asylum Cases Based On Forced Marriage, Natalie Nanasi

Natalie Nanasi

There is something special about marriage. The U.S. Supreme Court, in striking down anti-miscegenation laws, restrictions on the right to marry for disadvantaged groups, and most recently, the Defense of Marriage Act, has long recognized the marital union to be “sacred” and “fundamental to…existence.” Yet this analysis is dramatically different when courts consider asylum law, where a woman who is seeking refuge in the United States to protect her from a forced marriage abroad will likely be denied protection because the harm she fears is not considered to be a “persecutory” act. She may therefore be forced to spend a …


Revisiting The Meaning Of Marriage: Immigration For Same-Sex Spouses In A Post-Windsor World, Scott Titshaw Jan 2013

Revisiting The Meaning Of Marriage: Immigration For Same-Sex Spouses In A Post-Windsor World, Scott Titshaw

Scott Titshaw

When the Supreme Court struck down Section 3 of DOMA in United States v. Windsor, it eliminated a categorical barrier to immigration for thousands of LGBT families. Yet Windsor was not an immigration case, and the Court’s opinion did not address at least three resulting immigration questions: What if a same-sex couple legally marries in one jurisdiction but resides in a state that does not recognize the marriage? What if the couple is in a legally-recognized “civil union” or “registered partnership”? Will children born to spouses or registered partners in same-sex couples be recognized as “born in wedlock” for immigration …


The Debate, David M. Smolin, Elizabeth Bartholet Jan 2012

The Debate, David M. Smolin, Elizabeth Bartholet

David M. Smolin

This chapter is taken from a forthcoming book on Intercountry Adoption, edited by Judith L. Gibbons and Karen Smith Robati and forthcoming in June of 2012. The chapter constitutes a debate between Professor Elizabeth Bartholet and Professor David Smolin. Each independently was given three questions to answer, and then one opportunity to respond to the other's answers to those three questions, all with strict space limitations. The debate illustrates some of the starkly different perspectives regarding the law, policies, and facts relevant to intercountry adoption.


A Modest Proposal: To Deport The Children Of Gay Citizens, & Etc: Immigration Law, The Defense Of Marriage Act And The Children Of Same-Sex Couples, Scott Titshaw Jan 2011

A Modest Proposal: To Deport The Children Of Gay Citizens, & Etc: Immigration Law, The Defense Of Marriage Act And The Children Of Same-Sex Couples, Scott Titshaw

Scott Titshaw

The Defense of Marriage Act (DOMA), which defines the terms “marriage” and “spouse” for federal purposes, clearly prevents the recognition of same-sex spouses under U.S. immigration law. Unless judges and immigration officials are careful to limit it as Congress intended, DOMA might also have a tragic unintended effect on some parent-child relationships. The Immigration and Nationality Act (INA) employs terms like “born in wedlock” and “stepparent” to define parent-child relationships for various immigration and citizenship purposes. One could argue, therefore, that DOMA prevents INA recognition of parent-child relationships stemming from a same-sex marriage. These relationships determine whether a person can …


The Meaning Of Marriage: Immigration Rules And Their Implications For Same-Sex Spouses In A World Without Doma, Scott Titshaw Jan 2010

The Meaning Of Marriage: Immigration Rules And Their Implications For Same-Sex Spouses In A World Without Doma, Scott Titshaw

Scott Titshaw

An estimated 35,000 U.S. Citizens are living in our country with same-sex foreign partners, but with no right to stay here together on the basis of their relationship. Many are faced with a choice between their partners and the country they love. This is true, even if the couple is legally married in one of the growing number of states and foreign countries that recognize same-sex marriage. The Defense of Marriage Act (DOMA), which defines “marriage” under all federal law as an exclusively heterosexual institution, now stands squarely in their way. Reform options that would help these couples to stay …


Sorry Ma'am, Your Baby Is An Alien: Outdated Immigration Rules And Assisted Reproductive Technology, Scott Titshaw Jan 2010

Sorry Ma'am, Your Baby Is An Alien: Outdated Immigration Rules And Assisted Reproductive Technology, Scott Titshaw

Scott Titshaw

The growing use of assisted reproductive technology (ART) and legal recognition of same-sex relationships are raising questions regarding the recognition of parent-child relationships. State and foreign family law have been wrestling with these issues for decades, but U.S. immigration law is lagging far behind. So far, guidance exists on only one ART related issue under the Immigration and Nationality Act (INA): whether a U.S. citizen transmits her citizenship to a child born abroad. Unfortunately, that guidance is contradictory. The U.S. Department of State (DOS) requires genetic kinship for citizenship transmission. The Ninth Circuit Court of Appeals focuses on the parents’ …