PEAR Cautionary Statement on Kazakhstan Adoptions

In August 2010, PEAR issued a cautionary statement on adoptions from Kazakhstan. After being contacted with concerns by a prospective adoptive parent, we decided to temporarily remove the announcement, review it before the full board, and we wish to clarify it as follows:


PEAR has become aware of current problems in some regions of Kazakhstan that could affect pending and future adoptions.

Currently there are two separate and distinct issues of concern in Kazakhstan. The first concerns the unexpected refusal of the court in the Taraz region to approve 10 adoption petitions, leaving prospective adoptive parents and the children they have bonded to in legal limbo. There were indications in the media report that the reason for refusal to grant adoptions was due to the determination by the Court that there was not enough effort to find placement in Kazakhstani families before referring children for international adoption. At this time, we do not have confirmation that this was the Court's official ruling. This issue was highlighted by the linked story and we have received reports from other families experiencing the same issue. It is unknown if this is a politically motivated decision that will stand up to legal scrutiny. In the meantime, Kazakhstan is implementing the Hague Treaty on Intercountry Adoptions and is not accepting new applications.

The second issue concerns reports by adopting families in the Taraz and Karaganda regions that their in-country facilitators are requesting additional fees purportedly to pay bribes demanded by the Court in order to approve the adoptions. PEAR has no confirmation that the bribe requests came from the judges, only parent's reports that the in-country facilitators are making this claim.

PEAR reiterates that prospective parents need to proceed with caution in Kazakhstan adoptions in light of these events. PEAR, as advocates for ethical and transparent adoptions, never advises prospective adoptive parents or adoptive parents to participate in corrupt practices. The risk to your personal safety and the integrity of your adoption is too great. Prospective parents need to be aware that by participating in a bribe or any other improper financial influence, you may open yourself up for potential prosecution in the US under the Foreign Corrupt Practices Act. If your agency recommends that you pay the bribe, they may also be subject to the Act. See: http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01018.htm for more information.

In addition to the FCPA, you may also be risking possible arrest and imprisonment in Kazakhstan under their criminal laws as well as possibly being issued a NOID (Notice of Intent to Deny ) by the US Embassy in Kazakhstan when applying for your child's visa. For information on NOIDs see: http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/rfe021605.pdf Participation in corrupt practices can also jeopardize the future of adoptions in this country.

We encourage those in the process and those considering adopting from Kazakhstan to ask questions of your agency about any potential problems in various regions. In addition, we suggest that you contact the US Embassy in Kazakhstan for further information at USAKZ@state.gov .

We highly encourage you notify not only your agency, but the US Embassy in Almaty and the US DOS Office of Children's Issues about any unethical or unlawful conduct you are subjected to in-country. Contact information is below. If you wish for PEAR to notify these entities on your behalf, we will, but they respond more quickly when families notify them personally.

Embassy of the United States of America in the Republic of Kazakhstan:
Ak Bulak 4,
Str. 23-22, building #3, Astana 010010
Astana, Kazakhstan
Phone: +7 (7172) 70-21-00
Fax: +7 (7172) 34-08-90
email: USAKZ@state.gov

The U.S. Embassy Branch Office in Almaty:
97 Zholdasbekov St.
Samal-2
Almaty, Kazakhstan 480099
Phone: +7 (7272) 50-76-12
Fax: +7 (7272) 50-48-67

Office of Children's Issues
U.S. Department of State
2201 C Street, NW
SA-29
Washington, DC 20520
Tel: 1-888-407-4747
Email: AskCI@state.gov


Ethics, Transparency, Support
~ What All Adoptions Deserve.
http://www.pear-now.org/

Legislative Proposals

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:

http://harlowmonkey.typepad.com/harlows_monkey/2009/07/the-foreign-adopted-childrens-act-face-and-families-for-orphans-act.html

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

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

http://www.jcics.org/

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****

Ethics, Transparency, Support
~ What All Adoptions Deserve.
http://www.pear-now.org/

On Monday, January 28, the DOS issued a warning adoptions from Vietnam: (travel.state.gov/family/adoption/intercountry/intercountry_3939.html) Ethica then published their statement about the status of adoption from Vietnam. (http://www.ethicanet.org/item.php?recordid=vietnam&pagestyle=default).

PEAR commends and fully supports both the DOS and Ethica for their efforts to oversee that adoptions between the US and Vietnam are done in an ethical and transparent manner. We are in agreement with the warnings issued and the statements following those warnings by both Ethica and the US Department of State.

When adoptions between the US and Vietnam resumed under the terms of agreement of the current MOU in 2005, one of the most salient conditions was that the DIA (Department of International Adoption in Vietnam) publish a fee schedule for adoptions. To date this has not been done, and this failure remains a major obstacle in renewing the MOU.

In addition, there have been numerous reports of ethical violations by employees of US-based Adoption Service Providers (agencies) as well as by orphanage and provincial authorities in Vietnam since the resumption of adoptions. There are at present 26 US families who have received Notices of Intent to Deny (NOIDs) from DOS in Hanoi, indicating that the paperwork involved in these adoptions appears to contain irregularities warranting further investigation. Other serious allegations of unethical behaviors include money being paid to orphanages, a wide disparity in cost of adoptions from one agency to another, agencies bidding against each other to procure children, the coecion of birth mothers to give up their children, and orphan paperwork being falsified. The province of Phu Tho has recently been closed to all US adoptions.

There are currently over 2,000 US families who have filed paperwork to adopt from Vietnam, and the DOS statement has naturally caused great concern among them, as well as in the US Vietnam adoption community. Prospective parents fear that
adoptions from Vietnam could be suspended if not shut down completely. PEAR understand that this is a difficult and unnerving time for these families and fully supports them while awaiting further clarification from DOS as to the status of the MOU.

PEAR Supports Ethica's Letter to the VN Adoption Community

Below is a letter from Linh Song, Executive Director of Ethica. PEAR supports Ethica's call for input from the VN adoption community and encourages all those interested in VN adoption and adoption reform to participate by writing your comments to Ethica. PEAR's Comments on the JCICS Proposed Standards of Practice were submitted to JCICS on December 10, 2007. Copies of our comments are available on our website, in the Files section of our Newsletter Group, or by contacting PEAR at reform@pear-now.org.

**************

Dear Vietnam Adoption Community Members,

In November I attended the Joint Council on International Children's Services' Vietnam Summit. JCICS is the umbrella organization for many, but not all, adoption agencies facilitating international adoptions. Ethica is also a member as an adoption advocacy organization.

The Summit was convened in order to address the increasingly problematic situation in Vietnam, which included:

- Over 20 NOIDS (notice of intent to deny a child's visa) were issued in October-November 2007; 3 JCICS member agencies accounted for the majority of the NOIDs. Currently there are 26 NOIDs.
- The new I600 procedure that was proposed and implemented in order to verify true orphan status of Vietnamese children.
- The MOU between the U.S. and Vietnam that will be renegotiated in March with renewal in September 2008. However Vietnam has not fulfilled its promise of releasing a fee schedule, a key factor for successful renegotiation.

It was also mentioned that there was evidence of:
- Moving children from unlicensed child welfare institutions into licensed orphanages in order to qualify for international adoption.
- Adoption agencies contracting directly with maternity hospitals and matching children before they are relinquished to the orphanage.
- Paying orphanage and provincial officials large sums of cash in order to secure referrals (children eligible for adoption).
- Paying for travel junkets for orphanage and provincial authorities to tour the U.S.

The theme of the meeting was for agencies to stop illegal activity in-country, stop paying facilitators contingency or finding fees, and to co-operate in creating an agency fee schedule to submit to the U.S. Department of State.

It was obvious to me during the discussion that unethical and illegal activity either paid for or promoted by American adoption agencies, and bidding wars between agencies for young children, were key factors leading to the current climate. Cash donations directly to orphanages were also an issue as more seasoned and reputable agency representatives reminded attendees that one of the MOU's goals was to have agency funding be directed to humanitarian projects and not unaccountable cash gifts.

Some agencies continue to insist that they are not responsible to verify orphan status and that receipts alone are adequate tracking methods. Ethica believes that
this attitude is an indication that adoptive families need to be vocal about putting the responsibility on their agencies to fulfill their obligations in facilitating ethical and transparent adoptions.

Proposed JCICS standards were issued that agencies are currently commenting on. The timeline presented at the Summit has been changed to accommodate a delay due to staff changes at JCICS. The hope is for agencies to submit their fees to the organization and comments on the Vietnamese standards of practice by January 21.

Ethica is preparing our comments on the standards to submit at the end of Friday, January 18th. We would like to hear from parents any thoughts they have on what agencies should currently be doing in Vietnam, but are not currently doing. We will consider adding them to our comments. This is your chance for input on keeping Vietnamese adoptions open and continuing in an ethical and transparent manner.

Please email us at info@ethicanet.org by January 17th. Thank you.


Linh Song, MSW
Executive Director
Ethica, Inc.