Parents for Ethical Adoption Reform statement about Foreign Adopted Children Equality Act

Date: 2009-08-12

PEAR opposes Senate Bill 1359, otherwise known as the FACE Act, as written. While we find that are positive aspects to the bill and its intended purposes, we have also have ethical concerns about the bill. PEAR feels there are unaddressed issues leaving the impact on international adoption in question. We are actively engaging in discussions with the Acts’ drafters and other adoption reform groups to clarify both perceived weaknesses and the vagueness of how the new process would be implemented. We also want to ensure that all children brought into the United States for the purpose of adoption are treated equally, fairly and respectfully.

At this point, PEAR believes that the current draft of this bill provides inadequate safeguards for the protection of the adoption triad:

1. Power of the “competent authority” in the sending country vs. power of the US government to protect children and prospective adoptive parents:

The bill appears to weaken the authority of the US government to ensure that children have not entered the adoption process due to illegal and or unethical acts by third parties by giving the “competent authority” of the sending country the final determination over some issues surrounding the legitimacy of the child’s ability to be adopted. We find the following provisions to be of particular concern (highlighting is PEAR’s):

SEC. 2. CITIZENSHIP FOR CHILDREN ADOPTED FROM OUTSIDE THE UNITED STATES.

(a) IN GENERAL.—Subsection (b) of section 320 of the Immigration and Nationality Act (8 U.S.C. 1431) is amended to read as follows:

(b) CITIZENSHIP FOR CHILDREN ADOPTED FROM OUTSIDE THE UNITED STATES.—

‘‘(1) IN GENERAL.—A child born outside the United States automatically becomes a citizen of the United States if the Secretary of State is satisfied that all of the following conditions are met:

“(D) Prior to the adoption, the child was an unmarried individual younger than 18 years of age—

‘‘(i)(I) whose biological parents (or parent, in the case of an individual who has one sole or surviving parent) or other person or institution that retains legal custody of the individual—

‘‘(bb) are unable to provide proper care for the individual, as determined by the competent authority of the individual’s residence; or

‘‘(II) who, as determined by the competent authority of the individual’s residence—

‘‘(aa) has been abandoned or deserted by the individual’s biological parents or legal guardian; or

‘‘(bb) has been orphaned due to the death or disappearance of the individual’s biological parents or legal guardian;

AND

SEC. 4. APPEAL OF NOTICE OF INTENT TO DENY AN ADOPTION.

(c) CONDITIONS FOR ADOPTION.—The conditions described in this subsection are met if—

(B) are unable to provide proper care for the individual, as determined by the competent authority in the country of the individual’s residence; or

(2) the covered individual, as determined by the competent authority in the country of the individual’s residence—

(A) has been abandoned or deserted by the individual’s biological parents or legal guardian; or

(B) has been orphaned due to the death or disappearance of the individual’s biological parents or legal guardian.

In order to understand PEAR’s concerns with the language and impact of the FACE Act, the proposed law needs to be compared with the current law. At present, those provisions read as follows:

Sec. 320. [8 U.S.C. 1431]

(a) A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:

(1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization.

(2) The child is under the age of eighteen years.

(3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.

(b) Subsection (a) shall apply to a child adopted by a United States citizen parent if the child satisfies the requirements applicable to adopted children under section 101(b)(1) .

These requirements are as follows:

101(b)(1)(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;

*Current text of the INA can be found here: http://www.uscis.gov/propub/DocView/slbid/1/2

Please note that the current law does not contain language deferring to the “competent authority” of the sending country. The language concerning the role of the “competent authority” is new to the portions of the law that this bill seeks to amend. Our question for the drafters and supporters of this legislation is why?

Currently, the US government may investigate and deny a visa if they suspect that a child has been inappropriately labeled an orphan and made available for adoption through abandonment, inadequate care, or death of his parent/guardian. Under the FACE Act, the US government will be unable to do so if the “competent authority” has found that the conditions were met under its laws. To give an example of the consequences, USCIS was able to investigate suspicious abandonments in Vietnam which, though accepted as legitimate abandonments by the Vietnamese authorities, were found to have been the result of fraud. (see: Summary of Irregularities in Adoptions in Vietnam). Under the FACE Act, the US government would not have the authority to do this. PEAR believes that this places children at specific risk of being brought into adoption under fraudulent circumstances.

PEAR wants to ensure that the best language possible regarding ethical child investigation and safeguards against child trafficking is in any proposed legislation concerning international adoption. Legislation that purports to make the adoption process easier for adopting parents must be careful not to place children and families of origin at risk for exploitation and harm. We recommend continuing dialogue between the drafters, sponsors and adoption related NGOs to help ensure that the language used within the Act does not lead to unintended consequences.

2. Failure to address Hague Regulations and Safeguards of the USCIS Adoption Approval Process

The bill as drafted nullifies the current regulations found at 8 CFR 204.3 et seq. for both Hague and non-Hague adoptions. These regulations specifically apply to orphan petitions for immigration. If international adoption becomes a nonimmigrant process, the regulations regarding immigration and the role of the USCIS are void. The current processes and safeguards would have to be rewritten and a new pre-approval process promulgated for international adoptions. This fact is not addressed in the FACE Act or supporting materials provided by its supporters.

PEAR believes that this issue may become a huge concern for adopting families should this bill be passed and made effective before the new regulations are written. We recommend that reference to the Hague Regulations on pre-approval and investigation into processes as well the current safeguards in place for adoptive parents in non-Hague cases be incorporated into the FACE Act.

3. Citizenship Status Protections Are Inadequate

The FACE Act offers provisions granting a nonimmigrant visa to children who enter the US for the purpose of adoption by creating a new nonimmigrant visa under paragraph 15(W) of section 101(a) of the Immigration and Nationality Act as follows (highlighting is PEAR’s):

SEC. 202. NONIMMIGRANT STATUS FOR CHILDREN BROUGHT TO THE UNITED STATES TO BE ADOPTED.

NONIMMIGRANT STATUS.—Paragraph (15) of section 101(a) of the immigration and Nationality Act (8 U.S.C. 1101(a)) is amended

(1) in subparagraph (U), by striking ‘‘or’’ at the end; and

(2) in subparagraph (V), by striking the period at the end and inserting a “; or”; and

(3) by adding at the end the following:

“(W) an individual brought to the United States as a child to be adopted by a citizen of the United States.”.

These children will then attain US Citizenship once the adopting parents finalize the adoption in the US. If the adopting parents finalize the adoption but fail to apply for a Certificate of Citizenship, the adoptee will be permitted to apply for citizenship at age 18 via a simple form without undergoing the naturalization process. This is definitely a positive step for adoptees with parents who properly complete their adoptions but forget to file for citizenship.

However, the bill fails to address citizenship status of all children who will enter US under the proposed paragraph 15(W), ie a W visa. Of concern to PEAR is the status of children who lawfully enter the United States for the purposes of adoption but, through no fault of their own, have "parents" who fail to finalize the adoption.

Currently, children arriving to the US for the purpose of adoption do so under an immigrant visa called an IR-4 visa. According to the latest data available (Fiscal Year 2008 found at: ‘http://adoption.state.gov/pdf/total.pdf), just over 50% of children arrive to the US on IR-4 visas from 65 different countries and their adopting parents must finalize their adoptions in the US. High percentage countries include South Korea (1062 of 1065 visas) and India (284 of 307 visas). There are no statistics on the number of children whose adopting parents fail to finalize the adoption, but it is an acknowledged issue.

A basic understanding of visas is helpful in following our concerns. Visas are divided into two general categories: immigrant and nonimmigrant. Immigrant visas are issued to persons seeking permanent residence in the US, while nonimmigrant visas typically authorize a stay for a limited period of time and/or with a specific purpose. Immigrant visas confer the status of legal permanent resident, a status required for obtaining citizenship. Nonimmigrant visas do not confer the status of legal permanent residents and holders of these visas cannot apply for citizenship without taking additional steps to be granted an adjustment of status to legal permanent resident by USCIS.

Under the FACE Act, children who enter on the W visa as nonimmigrants and have “parents’ who fail to finalize the adoption by the child’s 18th birthday may face uncertain risks and additional hurdles in obtaining US citizenship. These persons will still be subject to deportation and unable to gain US citizenship unless they apply under the naturalization process after becoming an adult. Because of their nonimmigrant status under the FACE Act, they will need to take an extra steps in gaining legal permanent resident status and becoming citizens. Persons who enter the country under an IR-4 visa already hold immigrant status and do not need to take these steps.

PEAR believes that all children who lawfully enter the United States for the purpose of adoption should be treated equally and fairly on the issue of citizenship regardless of the actions or inactions of their adopting parents. We recommend that language be added to the FACE Act which allows all children entering on a W visa to be considered as legal permanent residents of the US and allow for a simple application for citizenship to children whose “parents” fail to finalize the adoption or apply for citizenship before attaining age of 18. A possible change to address this concern would be to alter the following subparagraph of the FACE Act:

ii) was born outside the United States and was adopted by a parent who is a citizen of the United States before the date on which the person reached 18 years of age

to:

ii) was born outside the United States and was brought to the United States under a W nonimmigrant visa or IR-4 visa with intent of being adopted by a parent who is a citizen of the United States whether or not such adoption occurred on or before the date on which the person reached 18 years of age

Again, PEAR recommends continuing open and respectful dialogue on the part of the drafters, supporters and opponents to the FACE Act to ensure the best possible outcome for all children brought into the US for adoption.

4. Backdating of US Citizenship to Birth

The FACE Act provides that US citizenship will not only be automatic, but will also date back to the date of the child’s birth. PEAR recognizes that the backdating of citizenship to birth is an topic of concern to some adult international adoptees. See, for example:

Jane’s Blog: http://jjtrenka.wordpress.com/2009/07/20/face-act/

Harlow’s Monkey: http://harlowmonkey.typepad.com/harlows_monkey/2009/07/the-foreign-adopt...

Congress and supporting organizations need to consider whether any benefit coming from backdating citizenship outweighs the concerns about erasing heritage and personal identity expressed by adult international adoptees. The desires of adoptive parents and advocacy groups needs to be secondary to the desires and needs of the people who will be most impacted by this section of the bill - adoptees.

We welcome comments and input from all members of the triad with respect to PEAR’s position and activities surrounding the FACE Act. To comment, please send an email directed to reform@pear-now.org

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