An independent voice for ethical adoption
The Face Act: An Ongoing Dialogue on Recommended Changes
Although Ethica came out in opposition to the FACE Act, we welcomed the invitation from McLane Layton, President of EACH and one of the major contributors in drafting the FACE Act, to discuss and clarify our points of opposition. We were able to convene with her on July 30th and felt encouraged that in our conversation, as well as in the open letter to the adoption community dated July 31st, Ms. Layton stated that the bill did not intend to diminish the safeguards in the visa investigation process; in fact, in our conversation with her, Ms. Layton thanked us for bringing to her attention that the FACE Act, as written, does, in fact, potentially weaken the ability of the U.S. government to investigate and confirm a child’s status as legitimately in need of a home overseas. Both EACH and Ethica agree that these safeguards play an important role in ensuring that the children who are adopted overseas are truly in need of a home in the U.S.; to diminish these safeguards is undesirable.
Below is a letter Ethica submitted in follow up to our conversation with Ms. Layton, delineating our recommendations for amending the FACE Act with respect to the visa investigation process.
In this letter, we have also offered specific recommendations to ensure citizenship for adoptees who might not already have U.S. citizenship. We believe these changes are necessary so that the bill does not continue to exclude adopted persons from U.S. citizenship. We trust that these gaps in covering adopted persons were also an oversight in the drafting process, and we are enthusiastic about the potential to offer citizenship rights for a group of individuals who have been unfairly overlooked thus far.
Although Ethica emphasizes that these changes do not address all of our concerns, we truly appreciate the willingness of EACH and Ms. Layton to consider our suggestions for strengthening the bill. We cannot offer support for the passage of the FACE Act at this time, but we look forward to cooperative, respectful, and productive dialogue to improve policies for all adoptees, adoptive families, and birth families.
Please see our forthcoming answers to Frequently Asked Questions for further information about our positions on this legislation.
August 3, 2009
Dear McLane,
Thank you again for your time on July 30th, 2009, to discuss Ethica’s concerns regarding particular aspects of the FACE Act bill. As discussed, please find Ethica’s specific recommended changes to the bill, including:
1. Recommended changes to help ensure that procedural safeguards in adjudicating orphan and Hague Convention adoptee petitions would be continued under FACE.
2. Recommended changes to ensure that all persons who were brought to the United States for adoption by U.S. citizens would also benefit under the bill. Ethica is concerned that adoptees who were excluded under the Child Citizenship Act would continue to be excluded under the provisions of the FACE Act.
Although the recommended changes in this letter do not reflect all of Ethica’s concerns with the bill, including the timing at which citizenship attaches and the elimination of the medical exam for the protection of the child, the adoptive parents, and the public health of the U.S., we believe that the changes presented below would significantly strengthen the bill’s current provisions.
Including Immigrant Visa Safeguards into a Consular Report of Birth/Passport System
As Ethica and EACH agreed last week during our conversation, the FACE Act, as written, potentially diminishes the protections in the visa system in two significant ways:
1. The Face Act text leaves sole authority for determinations of a child’s eligibility for adoption to a country of origin’s “competent authority”.
We believe that Sections 2 and 4 of the bill significantly weaken the U.S. government’s ability to independently determine the circumstances surrounding a child’s eligibility for adoption by leaving sole authority to make certain determinations with a country’s “competent authority”. These sections provide that in the cases of inability to provide proper care for the child and in the cases of abandonment, death or disappearance of the child’s parents, eligibility for adoption would now be left entirely up to an undefined “competent authority” in the child’s country of origin. The Department of State would only need to be satisfied that the country’s competent authority made the relevant determinations of inability to provide proper care, abandonment, death or disappearance without having to provide any independent determinations in this regard.
This language is a significant departure from similar provisions that currently exist in Sections 101(b)(1)(F) (applicable to orphans) and 101(b)(1)(G) (applicable to Convention adoptees) of the Immigration and Nationality Act on which Sections 2 and 4 of the bill were modeled upon in part. Nowhere in Sections 101(b)(1)(F) and 101(b)(1)(G) are such determinations left up to a “competent authority.”
Leaving determinations as to a child’s eligibility for adoption is problematic for countries that have not designated a competent authority, particularly non-Hague countries that have no Central Authority. But much more disturbing is the issue of when the competent authority is corrupt or otherwise does not make accurate determinations.
To illustrate, in Guatemala, some recent cases are coming to light of children allegedly kidnapped from their mothers who were declared abandoned by Guatemalan courts. In these kinds of cases, the FACE Act would end the inquiry of abandonment with the Guatemalan courts; the State Department must only be satisfied that the Guatemalan court (the competent authority) declared the child abandoned without needing to be satisfied as to whether the child was, in fact, abandoned.
As per our conversation, this is of significant concern to both of our organizations, in that we are both staunchly committed to the integrity of the orphan investigation process.
Ethica therefore recommends that references to a country’s “competent authority” in Sections 2 and 4 of the bill be removed.
2. The extensive existing regulatory regime in adjudicating orphan/Convention adoptee cases does not apply under the FACE Act.
With respect to Hague countries, a prospective adoptive parent’s suitability to adopt (e.g., homestudy requirements) and the adjudication of the child’s Convention adoptee status is determined through the I-800A/I-800 process implemented by the Department of Homeland Security’s extensive regulations at 8 CFR 204.300 et seq.
With respect to non-Hague countries, a prospective adoptive parent’s suitability to adopt (e.g., homestudy requirements) and the adjudication of a child’s orphan status is determined through the I-600A/I-600 process implemented by the regulations promulgated at 8 CFR 204.3.
Neither of these sets of regulations would apply under FACE. In the absence of these regulations, a great number of safeguards simply would not apply under the new process contemplated by the bill. Therefore, Ethica recommends:
1. That Section 2 of the bill specifically delineates home studies with respect to a prospective parent’s suitability to adopt,
2. That a section be added to the bill mandating the Secretary to promulgate regulations considering existing regulations at 8 CFR 204.300 and 8 CFR 204.3, subject to notice and comment,[1] and
3. That the effective date of Sections 2 through 4 of the bill be delayed until the promulgation of such regulations.
Citizenship for Adoptees Excluded by the Child Citizenship Act
Our second issue of significant concern with the FACE Act is that, as written, it would still leave a significant number of persons who came to the United States to be adopted without U.S. citizenship. Although we did not have a chance to discuss this in our conversation on July 30th, we believe this will be an issue of mutual concern for our respective organizations.
1. Section 2 of the bill requires an application and approval procedure for a person to be deemed a U.S. citizen, which renders the possibility that applicants for citizenship will be denied. We believe that citizenship for adoptees excluded from the Child Citizenship Act should acquire citizenship status in a more unequivocable manner. Therefore, we recommend that such persons need only “register” instead of go through an application and approval process.
2. We are concerned that the persons eligible to go through the bill’s application and approval procedure for U.S. citizenship would exclude persons who fall into any of these categories:
(1) Children who arrived on IR-4 or IH-4 visas and who would be covered by the Child Citizenship Act except that their adoptions were never finalized in the United States as well as any other persons whose adoptions were never finalized in the United States by U.S. citizens. This would include children who would arrive on “W” nonimmigrant visas contemplated by Section 3 of the bill whose adoptions are never finalized in the U.S. It is an unfortunate fact that some citizen adoptive parents do not finalize their children’s adoptions, for example, due to disruption into foster care or divorce of the adopting parents,
(2) Adopted persons who were not covered by the Child Citizenship Act and whose adoptions were finalized after the person reached age 18, and
(3) Children who are not described in subparagraphs (E), (F) or (G) of section 101(b)(1) of the Immigration and Nationality Act. Again, this category would include children who arrive on “W” nonimmigrant visas contemplated by Section 3 of the bill whose adoptions are never finalized in the U.S. by U.S. citizens.
Therefore, Ethica recommends that the bill confer citizenship upon all persons who were brought lawfully to the United States as children for purposes of adoption by U.S. citizens.
Suggested Changes to the Bill
The text of the bill with Ethica’s recommended changes, noted above, is set forth below. Recommended additions are in bold and recommended deletions are noted with strikethrough:
The Foreign Adopted Children Equality Act [FACE]
A BILL
To provide United States citizenship for children adopted from outside the United States, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Foreign Adopted Children Equality Act’ or the `FACE Act’.
SEC. 2. CITIZENSHIP FOR CHILDREN ADOPTED FROM OUTSIDE THE UNITED STATES.
(a) In General- Section 320(b) of the Immigration and Nationality Act (8 U.S.C. 1431(b)) 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:
`(A) The child is adopted by a parent who is a citizen of the United States.
`(B) The child is younger than 18 years of age.
`(C) It is determined that each adopting parent is eligible and suitable to adopt the child, including determining that the parent is able to support the child and has undergone an appropriate homestudy and criminal background check.
`(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 1 sole or surviving parent) or other person or institution that retains legal custody of the individual–
`(aa) have freely given their written irrevocable consent to the termination of their legal relationship with the individual, and to the individual’s emigration and adoption and that such consent has not been induced by payment or compensation of any kind and has not been given prior to the birth 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
`(cc) have voluntarily relinquished the individual to the competent authorities pursuant to the law 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
`(ii) with respect to whom the Secretary of State–
`(I) is satisfied that the proper care will be furnished the individual if admitted to the United States;
`(II) is satisfied that the purpose of the adoption is to form a bona fide parent-child relationship and that the parent-child relationship of the individual and the biological parents has been terminated (and in carrying out both obligations under this subparagraph, the Secretary of State, in consultation with the Secretary of Homeland Security, may consider whether there is a petition pending to confer immigrant status on 1 or both of the biological parents);
`(III) is satisfied that there has been no inducement, financial or otherwise, offered to obtain the consent nor was it given before the birth of the individual; and
`(IV) in consultation with the Secretary of Homeland Security, is satisfied that the individual is not a security risk.
`(2) CITIZENSHIP FROM BIRTH- An individual who becomes a citizen of the United States pursuant to paragraph (1) shall be deemed to have been a citizen of the United States at birth and shall be issued a United States Consular Report of Birth.
`(3) SPECIAL RULE FOR ADOPTEES WHO HAVE NOT ACQUIRED CITIZENSHIP ARE OLDER THAN 18 YEARS OF AGE-
`(A) IN GENERAL- A person described in subparagraph (B) shall be deemed to have been a citizen of the United States at birth after the approval of an application a registration filed within the United States or with a United States Embassy.
`(B) PERSON DESCRIBED- A person described in this clause is a person who was born outside the United States and was brought lawfully to the United States before the date on which the person reached 18 years of age to be adopted by a citizen of the United States –
`(i) is older than 18 years of age;
`(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; and
`(iii) was described in subparagraph (E), (F), or (G) of section 101(b)(1).
`(4) NO LIABILITY FOR PRIOR TAXES- An individual who becomes a citizen of the United States pursuant to paragraph (1) or (3) may not be liable for any taxes that the individual would have paid to the United States as a citizen of the United States before the date on which the individual becomes such a citizen.’.
(b) Conforming Amendments-
(1) HEADING- The heading of section 320 of the Immigration and Nationality Act (8 U.S.C. 1431) is amended to read as follows:
`children born outside the united states; conditions under which citizenship is acquired’.
(2) SECTION 301 OF THE IMMIGRATION AND NATIONALITY ACT- Section 301 of the Immigration and Nationality Act (8 U.S.C. 1401) is amended–
(A) in subsection (g), by striking `and’ at the end;
(B) in subsection (h), by striking the period at the end, inserting a semicolon and `and’; and
(C) by adding at the end the following:
`(i) a person deemed a citizen at birth pursuant to section 320(b).’.
(c) Clerical Amendment- The table of contents of the Immigration and Nationality Act is amended by striking the item relating to section 320 and inserting the following:
`Sec. 320. Children born outside the United States; conditions under which citizenship acquired.’.
SEC. 3. NONIMMIGRANT STATUS FOR CHILDREN BROUGHT TO THE UNITED STATES TO BE ADOPTED.
Section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)) is amended–
(1) in subparagraph (U), by striking `or’ at the end;
(2) in subparagraph (V), by striking the period at the end and inserting `; 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.’.
SEC. 4. APPEAL OF NOTICE OF INTENT TO DENY AN ADOPTION.
(a) Requirement To Provide Opportunity To Appeal- If the Secretary of State determines that a covered individual is not eligible to be adopted by a citizen or national of the United States on the basis that the conditions described in subsection (c) are not met, the Secretary shall provide–
(1) a notice of intent to deny the adoption of the child to such citizen or national of the United States; and
(2) an opportunity for such citizen or national to appeal the determination.
(b) Covered Individual Defined- In this section, the term `covered individual’ means an individual who–
(1) is younger than 18 years of age;
(2) was born in a foreign country; and
(3) is seeking to be adopted by a parent who is a citizen or national of the United States.
(c) Conditions for Adoption- The conditions described in this subsection are met if–
(1) the covered individual’s biological parents (or parent, in the case of an individual who has 1 sole or surviving parent) or other person or institution that retains legal custody of the covered individual–
(A) have freely given their written irrevocable consent to the termination of their legal relationship with the individual, and to the individual’s emigration and adoption and that such consent has not been induced by payment or compensation of any kind and has not been given prior to the birth of the individual;
(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
(C) have voluntarily relinquished the individual to the competent authorities pursuant to the law of 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.
SEC. 5. RULE OF CONSTRUCTION.
Nothing in this Act, or in any amendment made by this Act, may be construed to–
(1) abrogate any citizenship rights provided to an adoptee by the adoptee’s country of origin; or
(2) nullify the facts of the adoptee’s birth history.
SEC. 6. SENSE OF CONGRESS.
It is the sense of Congress that the government of each foreign country from which children are adopted by citizens of the United States should provide documentation of the adopted children’s original birth history to the adoptive family in accordance with the laws of such country.
SEC. 7. PROMULGATION OF REGULATIONS; EFFECTIVE DATE.
(a) Promulgation of Regulations – The Secretary shall, by regulation, prescribe the procedures to be followed in carrying out Sections 2 through 4 of the Act.
(b) Consideration of Hague Convention and Orphan Adjudication Regulations – In developing such regulations, the Secretary shall consider the adjudication procedures and other requirements of 8 CFR Section 204.300 et seq. and 8 Section CFR 204.3.
(c) Applicability of Notice and Comment Rules – Subsections (b), (c) and (d) of section 553 of title 5, United States Code, shall apply in the development and issuance of regulations under this section.
(d) Effective Date – The Act is effective upon enactment with the exception of Sections 2 through 4 which shall become effective on the effective date of regulations promulgated under this section.
Thank you again for the opportunity to discuss our views on FACE with you. We look forward to continued respectful dialogue on these issues.
Sincerely,
Melissa Griebel, President
Rachel Wegner
On behalf of the International Policy Team, Ethica
[1] Note that other rulemaking may be required to fulfill obligations under the Intercountry Adoption Act of 2000 in light of FACE. For example, section 102(e) of the Intercountry Adoption Act requires the Secretary and the Attorney General to establish a case registry of all adoptions “involving the immigration of children into the United States” to permit tracking of pending cases and retrieval of information on pending and closed cases. If children who are adopted from Hague countries are no longer considered as immigrating, how will they continue to be tracked? Similarly, Section 104(a) of the Intercountry Adoption Act requires the Secretary of State to submit an annual report to Congress that must include several elements including (1) the number of intercountry adoptions involving “immigration to the United States,” and (2) the range of adoption fees charged in connection with Convention adoptions “involving immigration to the United States.” If the Act is enacted, would these numbers be zero?
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