In PEAR's continued efforts to alert the public and members of Congress about the problems associated with pending Families for Orphans legislation (HR 3070), we participated with numerous concerned organizations and individuals in a mailing to members of the House of Representatives sitting on the House Committee on Foreign Affairs: Last month, PEAR joined in with Global Action for Children in voicing our opposition to the Families for Orphans Act. The Senate version act is currently sitting in the Committee on Foreign Relations. Below is the letter sent to Senator John Kerry, Chairman of the Committee and Senator Richard Lugar , Ranking Member.February 22, 2010
The Honorable John Kerry
Chairman
U.S. Senate Committee on Foreign Relations
218 Russell Senate Office Building
Washington, D.C. 20510The Honorable Richard Lugar
Ranking Member
U.S. Senate Committee on Foreign Relations
306 Hart Senate Office Building
Washington, D.C. 20510Dear Chairman Kerry and Ranking Senator Lugar,
We are writing in strong opposition to the Families for Orphans Act, S. 1458 and are dismayed that its supporters are using the tragedy in Haiti as cause for moving forward this counter-productive legislation.
We object to the bill for the specific following reasons:
- Instead of building on the success of offices that are already working for children worldwide, the bill needlessly duplicates the Orphans Assistance Act (PL 109-95) in some areas and conflicts with the mandate in others to the detriment of children and their families. The Families for Orphans Act calls for the establishment of a separate Office of Orphan Policy, Diplomacy and Development within the State Department. Establishing such an office would be entirely duplicative, not to mention harmful to the successful on-going coordination between U.S. government agencies supporting orphans and vulnerable children and adoption in Haiti.
The Department of State (DOS), Bureau of Consular Affairs, already has statutory authority to handle all child welfare matters that involve intercountry adoption of orphans from Haiti or elsewhere. This existing authority has taken efforts to fast-track adoptions from Haiti that were already in the pipeline and in the past few weeks has issued approximately 900 visas to pre-identified orphans eligible for adoption and in the adoption process —three times the typical number of visas issued annually to children for adoption from Haiti.
Adding an additional office in the State Department would harm rather than help children in Haiti and elsewhere. The redundancy would confuse and duplicate efforts as well as drain precious funding and resources. A more effective route would be to fund the existing PL 109-95 Secretariat (Orphans and Vulnerable Children office) which is currently, despite being unfunded, doing a heroic job of coordinating all U.S. agency efforts in Haiti on behalf of Orphans and Vulnerable Children.
- The bill would impose expensive and impossible-to-achieve requirements on poor countries. This not only burdens already over-burdened countries with red tape, it puts the future of working programs already in place like child survival, maternal health and the President’s Emergency Plan for AIDS Relief (PEPFAR) in jeopardy. The Families for Orphans Act mandates a biennial census of children without permanent parental care for all member countries of the United Nations including the United States. Not only would such a census be literally impossible for countries to comply with, it would cost billions of dollars to even attempt—billions that could be used to actually assist families to care for their children.
Further, according to this legislation, if countries failed to comply with these untenable requirements, the development assistance they receive from the United States, some of which supports the very children this bill purports to assist, might be cut off.
We are all motivated to assist orphans and vulnerable children in crisis in Haiti and around the world and thank you for your dedication to these too-often overlooked kids. Yet this bill is not the solution they need. We are worried that it is being rushed through Congress without enough public discussion regarding how it will impact longstanding U.S. global programs that are already in place to help these children and their communities grow.
Therefore, we strongly urge you to decline to consider this ill-conceived bill and instead fully fund existing mechanisms, such as the Orphans Assistance Act, that are doing good work on behalf of orphans and vulnerable children around the world.
Sincerely,
American Adoption Congress
The Episcopal Church
Ethica
Global Action for Children
Global AIDS Alliance
Mothers Acting Up
Parents for Ethical Adoption Reform
United Methodist Church, General Board of Church & SocietyVictor Groza
Grace F. Brody Professor of Parent-Child Studies
Mandel School of Applied Social Sciences
Case Western Reserve University
Cleveland, OHKaren Smith Rotabi, PhD, LMSW, MPH
www.HagueEvaluation.comRichmond, VA
cc: Senator Christopher J. Dodd, Senator Russell D. Feingold, Senator Barbara Boxer, Senator Robert Menendez, Senator Benjamin L. Cardin, Senator Robert P. Casey, Senator Jim Webb, Senator Jeanne Shaheen, Senator Edward E. Kaufman, Senator Kirsten Gillibrand, Senator Bob Corker, Senator Johnny Isakson, Senator James E. Risch, Senator Jim DeMint, Senator John Barrasso, Senator Roger F. Wicker and Senator James M. Inhofe
A message from PEAR's President on the Fast Tracking of the Families for Orphans Act in Response to the Situation in Haiti: This week, a member of PEAR, Julia Rollings, spoke eloquently of the reasons why international relocation and adoption of Haitian children is not appropriate at this time: http://au.tv.yahoo.com/sunrise/video/play/-/6725923/haitis-orphans/#fop The following legislative proposals were introduced to Congress at the end of June. The descriptions of the bills below are provided by GovTracks. Please read the legislation on your own for a true reflection of the legislation and its impact on international adoption. The legislation can be viewed and tracked a http://www.govtrack.us/.
Rep. Diane Watson [D-CA33] introduced H.R. 3070: To encourage the development and implementation of a comprehensive, global strategy for the preservation and reunification of families and the provision of permanent parental care for orphans, and for other purposes. June 26, 2009 (aka, FOA or FFO)
Sen. Amy Klobuchar [D-MN] introduced S. 1376: A bill to restore immunization and sibling age exemptions for children adopted by United States citizens under the Hague Convention on Intercountry Adoption to allow their admission to the United States. June 25, 2009
Sen. Mary Landrieu [D-LA] introduced S. 1359. A bill to provide United States citizenship for children adopted from outside the United States, and for other purposes. June 25, 2009 (aka, FACE Act)
PEAR’s Positions on Pending Legislation:
A. PEAR supports Senate Bill 1376, the bill to restore immunization and sibling age exemptions for children adopted by United States citizens under the Hague Convention on Intercountry Adoption. This act allows waivers of the immigration immunization requirements for children adopted from Hague partner countries. It also allows children up to the age of 18 to be adopted and admitted into the US if they are siblings of previously adopted children. This bill addresses oversights in the drafting of the Hague Regulations and brings those regulations into parity with existing international adoption law and policy on immunization waivers and sibling adoptions.
B. 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:
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
C. PEAR opposes House bill 3070, otherwise known as the Families for Orphans Act, FOA or FFO. PEAR has numerous concerns about the Families for Orphan’s Act which we intend to publish on or about September 15, 2009. We encourage prospective and adoptive parents to exercise caution and restraint in supporting this bill until you have both read the bill and reviewed educational comments from a variety of sources. There are numerous changes to current US process and policy which you may not wish to support and which we at PEAR feel place members of the adoption triad at real risk for harm. Some of these changes include:
1. Overly broad definition of an “orphan”;
2. Overly strict definition and requirements for “permanent parental care”;
3. Disregard for cultures with views of family and parental care that differ from ours;
4. Drafting issues involving conflicts and inconsistencies within the bill that may cause confusion and misinterpretation.
Resources and Rumors:
There are many rumors and untruths circulating on adoption boards and newsletters both in favor and opposed to the pending legislation. PEAR respectfully requests that prospective adoptive families and adoptive families exercise caution and restraint in making decisions and taking any action in support or opposition to the legislation until they have fully educated themselves on the purpose and impact of each. We recommend that you read the actual bills, the current laws it will change and the opinions of a variety of commentators, both for and against the legislation.
Comments from other organizations and individuals concerning the above legislation can be read at the following websites and blogs:
Websites:
Ethica: Comments on each bill -
http://www.ethicanet.org/international-adoption-ethica’s-positions-on-pending-legislation
JCICS: Comments on FOA/FFO
EACH: Comments on FACE Act -
http://www.equalityforadoptedchildren.org/legislation/face.html
Comments on FFO Act -
http://www.equalityforadoptedchildren.org/legislation/ffo_act.html
Blogs:
Jane's Blog: comments on FACE Act-
http://jjtrenka.wordpress.com/2009/07/20/face-act/
Weaving Families: Comment on FACE Act-
http://www.weavingfamilies.com/blog/2009/7/3/face-act-of-2009.html
Stepping on Legos: Commetns on FACE and FOA/FFO -
http://steppingonlegos.com/blog/face-ffoa-what-are-all-those-acronyms/
Voices for Vietnam Adoption Integrity: Comments on FOA/FFO -
http://www.adoptionintegrity.com/2009/07/24/fighting-for-orphans/
My Minivan Rocks!: Comments on FACE and FOA/FFO-http://myminivanrocks.wordpress.com/2009/07/28/sorry-honey-mommys-busy-opposing-some-bad-adoption-legislation/
****if you have a website or blog pertaining to the above bills that you wish to share, please send to reform@pear-now.org and we will include it****
