I have a folder in my legal research files that is simply labeled “Fucked Up Cases.” The case of James Christian Werthmann sits in that folder. The other cases in that folder residing with Werthmann have similar attributes: a set of facts and circumstances that are so complex and bewildering, and so insane and inexplicable, that they can only also be categorized as fucked up—and Kafkaesque.
I didn’t conjure up Kafka as an additional way to describe Werthmann’s case. The U.S. Court of Appeals for the Ninth Circuit did. It did so in a recent decision that described the case as a “story [that] could have been plucked from the pages of a Kafka novel.” Reading through the facts and circumstances of the case, and watching the oral arguments before the court in February, Kafkaesque may actually underplay things a bit. What started as an intercountry adoption by a US Army Colonel and his family has now devolved into that intercountry adoptee being tossed between two countries—each of which denies that he is a citizen—and the US government and courts asking the question “what do we do with him?”
The him, of course, is a forty-year old person currently living in California. James Werthmann was born in Mexico in 1979 and placed in the custody of US citizen parents when he was 13 months old. His father was a retired colonel and medical doctor in the U.S. Army, and the family lived for years in Guam and the Marshall Islands, finally coming to live permanently in the United States when Werthmann was about 13 years old. That’s generally when things appeared to get back on track—before it all went off the rails.
Trying to summarize in detail what happened here is a bit difficult, not because of the facts, but because it gets into the nitty gritty of US immigration law and its ridiculously complex and broken system, especially for intercountry adoptees. But generally what has happened was this: paperwork and immigration procedures to process Werthmann and his adoptive siblings for citizenship worked for his siblings but not for him. While Werthmann and his adoptive family sought to make him a legal citizen, federal ineptness, unreasonable delays, and the bad luck of being born at the wrong time has now conspired to make Werthmann stateless, caught between two countries and with the US looking to send him to a different country they have yet to find.
Here’s what generally happened, in a timeline that may explain things more clearly:
1979 • Werthmann is born in Tijuana, Mexico, and allegedly abandoned by his parents.
1981 • At 13 months of age, Werthman is placed in the custody of the Werthmann family, a military family that lives in the Marshall Islands and Guam, where the father is a medical doctor in the army.
1991 • At eleven years of age, Werthmann’s adoption is finalized in Guam, which an attorney had advised as necessary to secure Werthmann’s US citizenship.
1992 • The Werthmann family moves to Washington state from Guam. While the family arrives in a military transport, there appears to be no record of Werthmann’s entry into the country, (though the family had previously resided for a short time in California in the early 1980s).
1995 • Werthmann’s father is diagnosed with cancer and the process to secure his childrens’ citizenship through US immigration laws is delayed.
1996 • Werthmann’s mother dies.
1997 • Wertham’s father applies for an immediate relative visa for three of his adopted children, including Werthmann, who is by then 17 years of age. Werthmann at the same time applies for an adjustment of status, which would adjust his status in the US to that of a legal permanent resident. Werthmann and his sister’s interviews for the visa are consolidated and heard at the same time.
1999 • Werthmann’s adoptive sister is approved for a visa and her status is adjusted to that of a legal permanent resident. Werthmann’s visa approval form appears to have been lost by immigration officials.
1999 • Werthmann is charged in California with felony arson in relation to a fire at the family home. As the recent court decision characterizes it, “Werthmann was playing with matches in the garage of the family house when the house caught on fire.”
2000 • Werthmann enters a plea of “no contest” to the arson charge and is sentenced to five years probation. Within two years, however, the conviction is reduced to a misdemeanor.
2000 • The day after Werthmann enters his plea in the arson case, US immigration authorities begin proceedings to deport him to Mexico, claiming he is a Mexican citizen and also that the arson conviction in 1999 was a crime involving moral turpitude and thus a deportable offense.
2000 • While Werthmann is in deportation proceedings, Congress passes the Child Citizenship Act, which provides automatic citizenship to intercountry adoptees—but not to those who, by February 27, 2001, are 18 years of age or older. Werthmann, who is by now twenty years of age, does not qualify for automatic citizenship under the CCA.
2002 • Nearly five years after applying for an immediate relative visa, immigration authorities approve Werthmann’s visa. But, because by this time Werthmann was over the age of 21, he no longer qualifies for an immediate relative visa, which gives immediate priority and issuance of a visa to children of US citizens. Rather, his now an “adult child” of a U.S. citizen and must wait in line for issuance of a different visa, an F1, which is issued on a “first-come first-served” basis and tied to the date of application. The wait for such visas is at least a decade or more.
2002 • Because he does not have an immigrant visa, Werthmann is deported to Mexico.
2002 • With passage of the Child Status Protection Act, Congress partially fixes the visa loophole that had led to the lack of an immediate visa and to Werthmann’s deportation. The act makes eligibility for an immediate relative visa contingent on the age of a child at the time of application, not at the time the visa is ultimately approved. The act is effective in August 2002, three months too late to apply to Werthmann’s situation.
2003 • Werthmann is detained in Tijuana, Mexico, by Mexican authorities. A Mexican judge determines that Werthman is a US citizen without legal authorization to remain in Mexico, and Mexico orders his departure from the country, effectively deporting Werthmann from Mexico back to the United States.
2003 • Upon arrival back in the United States, Homeland Security places him in jail based on an outstanding warrant for failure to report to his probation officer for the California arson case.
2003 • Werthmann files his current case.
2019 • The case winds through various proceedings, with more than ten hearings and two appeals to the Board of Immigration Appeals (BIA). Just last month, Werthman receives a decision from the United States Court of Appeals for the Ninth Circuit, which sends the case back to the BIA, stating that “in light of these grave inequities, we remand to the BIA to allow it to consider reopening Werthmann’s case, and thereby to permit any and all arguments that might lead, finally, to an equitable and fair outcome.”
If this is crazy, you are not alone in thinking so. The three-judge panel on the Ninth Circuit Court of Appeals certainly saw the insanity of it. At oral argument in the case this past February, the following exchange sums up the overall exasperating injustice and absurdity of Werthmann’s situation.
It’s hard to say if the US government will ever provide justice to Werthmann in this case, though the tone of the court of appeals decision suggests that it better, particularly when it specifically said it was retaining jurisdiction over any further proceedings. But there is one way to fix now what has happened to intercountry adoptees like James Werthmann, who were born too early to be considered automatic citizens under the Child Citizenship Act. We must enact legislation today that closes the loophole in current law that led to Werthmann’s deportation and statelessness. Fix the law so that it includes all adult intercountry adoptees who were adopted by US citizen parents while children. All. Not just those born on or after February 27, 1983, but those like James Werthmann, whose Kafkaesque journey began as an infant abandoned in Mexico and continues to this day, abandoned by the only country he has ever known.