I am pleased to report that, on July 16, 2003, the First Court of Appeals granted a provisional amparo stating that PGN cannot apply the Hague Convention to a US case of adoption. The amparo was filed by attorneys working with HAPS (in NJ) for a case that was "kicked out" of PGN for not meeting the requirements of the Hague Convention.
The amparo stated that adoption cases filed on behalf of US Citizens do not need to meet the requirements of the Hague Convention until they become a full party to the treaty (expected in the next couple of years).
A Recurso de Amparo (aka amparo) is a legal action filed in the appeals courts of Guatemala. In the case of Guatemalan adoptions a (very) few attorneys have filed amparos - the first known to me on June 23, 2003. Amparos have been filed against various entities in PGN when they have refused to process adoption cases. The reasons that I know for amparos being filed are (1) post-March 5/pre-July 1 cases being issued previos (kicked out of PGN) for not meeting the requirements of the Hague Convention [has been successful]; (2) post-March 5/pre-July 1 cases not being accepted by PGN (instead referred to the Central Authority); (3) cases not being accepted to PGN appealed because it is prohibiting notarial attorneys in Guatemala from performing their work (which is constitutionally protected) [has been successful]; and (4) pre-March 5 cases that have been languishing in PGN for months without apparent action.
On July 16th, four amparos were granted in Guatemala City - each presented by a different attorney. Others may have been filed or granted outside of Guatemala City. I don't currently know the exact reason for each appeal, except that one involved scenario #1 above, and another involved scenario #3.
Although the decision by the First Court of Appeals in this case is very exciting, it does not mean that the battle is won. It is my understanding that the decision is only applicable to the particular case filed - so it provides precedence for other cases, but does not directly apply to them. And, PGN is likely to file an appeal, which they must do within 3 days of the decision.
What can you do? Well, if your case falls into one of the above categories, or others that I have not considered (like cases languishing in the Central Authority for 30 days without action, perhaps) talk to your agency or facilitator about the possibility of an amparo being filed on your behalf. So far there are only a few attorneys filing these documents, but early results indicate that they might be effective methods of getting through the PGN/CA roadblocks. However, it is only likely to work on a broad scale if many attorneys become involved. And, the best way for them to become involved is to hear from you that, as their client, you would like them to consider filing such an appeal on your behalf.
Update (7/20): As expected, PGN filed an appeal for the amparo granted on 7/16. Their initial appeal was rejected because it was not formatted correctly, however they have filed another appeal and the case will be heard by the Constitutional Court.
Posted by at July 17, 2003 10:48 PMMaura,
What happens if/when the pgn files an appeal? Where does the case go from there? I was told today that my atty is preparing an amparo and will be filing soon on our case as well. You can email me if you'd like ahunt30889@aol.com. Thanks for posting this info here!!! Amy
Posted by: Amy at July 17, 2003 11:51 PMA big thanks (and round of applause) to Maura who is a new co-writer for Guatadopt!!!!
Posted by: Kelly at July 18, 2003 12:28 AMWhat happens if PGN does NOT file an appeal? Does this mean the adoptions for whom the amparo was granted are final, or does it mean that PGN has to sign off on them still?
Thanks,
Denise Dienna
Good questions! My understanding is that, if PGN appeals, the appeal goes to a "higher court" that deals in constitutional issues. I'm not sure if this is the same constitutional court that originally heard the arguments against Guatemala's accession to the Hague Convention or not.
If PGN does not appeal (which might be the case for appeals based on pre-March 5 cases that have been languishing) then I think that the case is returned to PGN which then HAS to make a ruling within 3 days. I'll double check on this part...
Maura
Maura and/or anyone who might know,
Now I am reading that some people are saying amparos MIGHT not be able to be taken back if necessary and that the adoption would have to go thru judicial processing and that would take much longer. Is this true??? Blessings, Amy
Posted by: Amy at July 18, 2003 02:02 PMHi Amy,
I'm not sure how it works at all stages of the process. However, I can tell you for sure that, at least before there has been a court ruling, amparos can be withdrawn. I know that for sure because that's what happened in my own case. An amparo was filed on 7/7/03 after PGN refused to accept the case. Our attorney filed an amparo stating that PGN was prohibiting him from conducting his business (notarial attorney) which is protected by the Guatemalan constitution. Several others were filed on the same day, by the same attorney, for the same reason. On 7/17, PGN requested that the attorney bring the files to them for processing. So, the amparos were withdrawn and the cases submitted to PGN. They now have 3 days to examine the documents or another amparo will be filed.
I'm checking to see if this changes after a decision has been rendered and an appeal filed.
As for this process taking more time, it seems like the PGN plan is to send all adoption cases through family court (judicially - not in the ancillary way that notarial adoptions are processed there) for final approval after they check that they comply with the provisions of the Hague Treaty. That sounds like it would take even longer than being held up for 20 business days in another court. However, I don't know for sure...
Hope this helps,
Maura
Maura,
What does this mean for families who haven't gotten a referral yet? If enough amparos are granted, will the whole "new" process be thrown out?
is there a Thursday update this week?
Thanks
OK, I have a bit more information. First, the appeals (if filed by PGN) are handled by the same constitutional court that is reviewing the constitutionality of Guatemala's accession to the Hague. If PGN wins an appeal, then the attorney can appeal to yet a higher court if necessary - or the case would be submitted to tribunal and they would rule on the adoption. If PGN does not appeal, or if it loses an appeal, then they must do what the "sentence" on the amparo was - essentially they must rectify the circumstances leading to its filing. So, for instance, the amparo that had been filed in my case (and was subsequently withdrawn) said that, according to the law, PGN must review all cases involving adoptions. By refusing our case, they were refusing to uphold their legal responsibilities. If our case had "won" then PGN would have to accept the case. However, PGN accepted the case without a legal decision on the amparo being rendered by the appeals court (I guess kind of like a plea bargain).
As for how this might effect pre-referral cases, the amparos that have already been filed probably won't have a direct effect. However, if the judicial system of Guatemala takes a stand that PGN is acting outside of its legal authority, then hopefully the whole system will be examined more closely or possibly reverted. There is one way that filing amparos could help pre-referral families - and that would be if an amparo (or more) were filed on behalf of the birthmothers. They have legal rights to relinquish their children for adoption, and to decide if that adoption should be domestic or international. Those rights are not being protected by the new regulations. Therefore, if someone took on the time and expense to speak for these poor voiceless women (and found women who were brave enough to go through the process) then there could be a direct effect on pre-referral cases.
I think that the way that we can best effect the pre-referral cases is by petitioning our state representatives and senators to help. We need them to talk to the DOS with their powerful voices so that the DOS will assert third-party status and all US adoption cases will be processed by pre-March 5th rules. That is most likely to have the trickle-down effect of opening up new referrals to preadoptive US families.
Hope this helps,
Maura
Maura,
Thanks so much for this informaton! Could you please remind me if you are a pre 3/5 or post 3/5 case? Now that PGN has accepted your case without the amparo, is your attorney concerned that you may be kicked out needlessly or "held up" because of his previous plans to file? I know I am asking you to voice your opinion of your attorney's thoughts, but I felt this was probably a conversation you had prior to the amparo being filed and wondered his/her opinion of the fear of indirect retaliation from PGN.
Thanks again,
Debbie Melucci
(pre 3/5 entered PGN on April 10--entered CA on May 28)
Maura,
As everyone waiting for their child at this time, we are worried sick and not sure what to do. I have been relying on very vague info. from our adoption agency and just came across your message board. I was hoping you could help us understand exactly what we should be concerned about. We are a Post 3/5-Pre-7/1 case about to go into CA. Should we be concerned that our case will be kicked out or held up at this next level? Should we be preparing ourselves for our case to get "dismissed" for any reason? Do you suggest that we go ahead and talk with our adoption agency about preparing an amparo? I am not even sure if I am asking the right questions, but any help you could give us, we would be grateful!
Cristal Lake-Sanders
Posted by: Cristal Lake-Sanders at July 21, 2003 06:04 PMHello there.
Thank you for all the information. Our agency in thinking about filing as well. Our INS approval was received by them the end of June.
Our case is a bit backwords since we have everything for a domestic adoption, got a referral for a toddler in Guatemala and then proceeded to complete the necessary paperwork for international adoption.
Probably ours is a post 7-1 case and will be down a very long road yet???
Thanks, Sandy
Dear Maura..,
Thank You for all the up-dates on Guatemala..It keeps us up to date on the Courts and the PGN..Please keep up the good work in helping us get our baby..Thank You..,Marion
Just came across your site, our attourny is filing an amaparo soon for us. Thanks for all the info. about it. How long do they usually take from when they are filed? Our agency is really SLOW about everything. We have been in PGN for 9 months now, kicked out once because we had to re-do our P.O.A. and they went with the April 11th date on it, instead of our initial date from 2002...Thought we were a "new" case...good grief. Laura
Posted by: laura at July 29, 2003 04:16 PM