Guatadopt readers -
We are exceedingly grateful to the many professionals and experts who take the time and share their expertise. I realize that at times, opinions and interpretations differ on many important issues. I know that makes it extremely difficult at times for our readers, but we feel obligated to share as much information as possible. I do feel that this is a serious issue that should not be glossed over by the agencies or prospective parents in the prepatory stage of their adoption.
{Posted on behalf of Tifany Markee, Immigration Attorney, Milner & Markee, LLP.}
I have been asked by GuatAdopt.com to provide a statement on the recent developments of the Hague Convention. As a bit of background, I am an immigration attorney, and specialize, in part, in international adoption law. I am an active member of the American Immigration Lawyers Association (AILA). Further, I am general counsel to 2 international adoption agencies, and have also been successful in assisting families with disputes they have with international adoption agencies. Finally, I am an adoptive mother of two children from Russia.
My statements below are simply my legal opinion, based upon my research and first-hand conversations with the Joint Council on International Children Services (JCICS) and the Department of State.
As many know, Guatemala acceeded to the Hague Convention (hereinafter called HC) in 2002. A challenge was immediately put before the Supreme Court in Guat, and the eventual ruling was that the method of accession was improper, and was thus against the constitution of Guatemala. Many here remember the near total stoppage of adoptions during that time.
Until now, this has never been an issue again. However, in Feb, the US finally signed on to the Hague. Again, there are a myriad of changes, but most principally, it will demand that any adoptions which occur between 2 HC countries must be done only by an accredited agency (the actual process of acceditation is a work in progress), and has all sorts of other safety nets, aimed at the protection of the kiddos. If the adoption is between a HC country and a non-HC country, no changes will be affected.
So now the pressing news:
The Department of State publicly confirms that the US considers Guatemala to be a HC country. Note that Guat is a non-member HC country, as they are not members of the Hague's permanent board. BUT, in the eyes of the US, Guat is a HC country. The Dept of State said last week that it did not recognize the "constitutional challenge," as that only pertained to domestic law, not internatonal law. The US seems to feel that the actual logistics of HOW the HC was aeceeded makes no difference in determining whether the country is a signatory to the HC.
However, the Dept of State also said in the very same breath that the adoption procedures in Guatemala were NOT in compliance with the HC. In short, this means that the US questions the procedures and safety nets.
So this presents an interesting problem: if the US considers Guat to be a HC country, then it will demand that any adoptions that occur after the effective date (which is slated, presently, to be January 1, 2007) MUST comply with the HC. However, at the present time, Guatemala does not comply.
The Joint Council has confirmed that is indeed the US' view.
The Joint Council as well as the Dept of State are presently encouraging Guatemala to allign itself with the Hague regs. Form a central authorization, etc. Guatemala does not seem so inclined to act, although there are several in Guatemala that would like to see such a central authority take over the job from the private attorneys.
Indeed, from both a legal and logical standpoint, adoptions from Guatemala (or more specifically, the US immigration of/ issuance of immigrant visas to children from Guatemala) are at jeopardy. The Department of State is clear: Guatemala, a Hague country, is not in compliance. Once the US effectuates the Hague, the convention effectively requires that the US not allow the immigration of adopted children from Guatemala, unless and until Guatemala complies with the Hague demands. If Guatemala fails to do that, I would expect that the US would refuse to priceed with Guatemalan adoptions. Again, this is the legal and logical conclusion, although one that has not been specifically and explicitly confirmed by the Department of State.
I have also posted on this subject on Adoption.com, and have gotten several questions about options. I have a few main thoughts I would like to share:
1. Adoption from Guatemala are at risk. Any prospective adoptive parent needs to be aware of the pending regulations, and take them into consideration as a part of making a decision to proceed with Guatemala. Families should take this news very seriously, and not allow an agency to dismiss it or claim that they have nothing to fear. It is up to the families to press their agencies for news and updates.
2. Any agency that completes adoptions from Guatemala needs to properly advise prospective adoptive parents of the risks. I personally feel that it is unethical for any agency to brush this under the rug, and dismiss any conversations about it. I would recommend to any agency to have a full and frank conversation with their families, and allow the families to make an informed decision. Agencies need to lead their clients in a fair and informed manner. I have advised one of my agency clients to begin these discussions with its families within the Guatemala program.
3. I know that the rumors that are floating around suggest that the filing of the I-600A will preserve eligibility to complete an adoption from Guatemala, despite a suspension (i.e. a grandfathering). I do not professionally agree with this line in the sand. The I-600A simply states that Mr. and Mrs. American citizens are stable and proper adoptive parents for an international child; it is not country-specific (the approval is then cabled to the country of the family's choosing). For this reason, I also do not feel that the issuance of the I-171H will also be a cut-off point. Rather, my opinion is that any cut-off line imposed in the event of a shut-down will relate to the initiation of the process in Guatemala -- filing of the Power of Attorney, fiing for Pre-Authorization, etc. I will research the cut-off points used when the US pulled the plug on adoptions from Cambodia and Vietnam and see if I can find a parallel to Guatemala.
4. As it relates to point #3, I would strongly encourage any family who is currently on the fence about adopting from Guatemala to make a decision, and a committment, and move forward as soon as they can. I have been in the immigration community for many years, and have seen many individuals who miss cut of dates of programs due to inaction. If a family has committed to Guatemala, I would advise that family to begin as soon as possible, with the goal of being as far down the path as possible by Jan 1, 2007. Hopefully, this will ensure that all families make it under any imposed cut-off lines.
5. Do not panic. I have seen the Department of State and CIS change and implement many programs over the years; often times, they extend deadlines and move the effective dates many times. While the Department of State has indicated that Jan 1, 2007 is the effective date, many other things need to be completed before Hague implementation, including the completion of the regulations related to the Intercountry Adoption Act (IAA), the US implementation of the Hague, as well as the accreditation regs and procedures. While Jan 1, 2007 seems fairly certain now, that date may change.
I will be attending the JCICS conference at the end of April, at which time I will attend the Guatemala caucus, the Hague meetings, as well as the open forum with the Department of State. I am happy to provide a summary and highlights as soon as I return. I am also happy to answer questions as they come.
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ADDENDUM...added 24-MAR-2006
Based upon a conversation I have had with JCICS, I would like to amend or clarify a few of the comments I made in my statement yesterday. I feel that the only way to educate prospective adoptive parents is to provide the most accurate information possible, in a manner which is clear and timely.
1. Regarding the effective date of the Hague Convention in the United States: As the rumor mill begins to run rampant, dates and specifics begin swirling around. As I was writing my posts on Adoption.com and GuatAdopt, I made extensive use of and reference to a specific date for implementation: January 1, 2007. In my conversations with JCICS, I have confirmed that while we all may be eager for a bright-line start date, the Department of State has, so far, not committed to any specific date. They did mention in their open meeting that their goal for implementation is 2007; however, they attached no specific month or day to that goal. As I stated in my post yesterday, the implementation date is simply a goal; many steps have to be completed before that implementation, including establishing a process and authority for accreditation of US-based agencies. JCICS is of the opinion, and I concur, that the actual implementation date is likely to be closer to the end of 2007, possibly even into 2008. That timeline appears much more realistic given the amount of work that must be done in anticipation of the full implementation.
2. Regarding the status of families who are just beginning the process: As I stated in my post yesterday, I believe that families who are currently starting the process are unlikely to be impacted by any changes. Ultimately, only the Department of State will determine the line which a case must pass to be grandfathered in under any changes. However, given the time lines we are seeing for completion of various steps in an adoption from Guatemala, I believe, as does JCICS, that any family that begins within the next few months should be fine. Of course, opinions may change as the end of the year approaches, and only after an assessment of the progress of Hague implementation can further predictions be made. I would once again reinforce that any families who are uncertain of a Guatemalan adoption may wish to wait and see; but those who are committed to starting the process should begin that process within the next few months.
3. Regarding the status of Guatemala as a Hague Convention country: JCICS clarified for me that Guatemala is a Hague Convention country because it acceded to the Convention. States which are Permanent Members of the Convention (which Guatemala is not) can then object to the accession (which was seen in the actions of 5 countries). However, only Member countries can then ratify the Convention, and non-member countries cannot object to that ratification.
I am hopeful that this provides families with additional updates and details. I invite all families to maintain an open dialogue with all participants in this important discussion, including JCICS, FOA, as well as their agencies, to hopefully reach a solution to this upcoming potential problem.
Respectfully,
Tifany Markee, Esq.
Milner & Markee, LLP
www.milner-markee.com
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Posted by Kelly at March 23, 2006 06:52 PMDear Tifany
In the situation which you describe as
"So this presents an interesting problem: if the US considers Guat to be a HC country, then it will demand that any adoptions that occur after the effective date (which is slated, presently, to be January 1, 2007) MUST comply with the HC. However, at the present time, Guatemala does not comply. "
I believe the US has the option to "object" to Guatemala as a Hague country, in the same way that the UK Holland Germany Spain and Canada did (I believe it is Article 44 which covers this). This would mean that the US could recognise Guatemala as a convention country but refuse to deal with adoptions from that country as convention adoptions - in the same way that the UK does.
Do you feel that this is precluded under the US system, or is it a possibility? If it is it would seem to me to be the path of least resistance - allowing everyone to save face - whilst enabling adoptions to continue.
Stevan
Posted by: Stevan Whitehead at March 24, 2006 03:53 AMThank you so much for taking the time to write this.
Posted by: Gabe at March 24, 2006 07:14 AMStevan,
In the remainder of 2006, the U.S. and Guatemalan governments, as well as advocacy groups such as FOA and JCICS, presumably will be working together to make changes to the system to assure that adoptions may continue. In your comment, you list a number of countries. Out of curiosity, are those countries working with Guatemala to create a system under which adoptions would be recognized as "convention adoptions"?
Richard
Stevan:
In 2003, after Guatemala acceded to the Hague Convention, 5 countries formally refused to acknowldge the acsession. This includes Spain and the UK. I am not 100% familiar with international law procedures (there are attorneys who deal solely in the passage and interpretation of international treaties), but I am fairly certain that any challenges have to be made fairly quickly after accession. I think it would be too late for the US to now pose a formal challenge to Guatemala's accession. I think a better solution would be for the US to acknowledge and accept Guatemala's domestic constitional challenge, and agree that that invalidated Guatemala's accession, thereby releasing Guatemala from the Hague Convention. Certainly, from a political point of view, this is possible, even if not probable.
Richard, with regard to your question about countries that challenged the accession, some (like Canada, I believe) do not permit the immigration of children adopted from Guatemala, nor do they recognize such adoptions, as they doubt the legal safety guards. However, the UK has implemented additional safeguards of its own, including DNA testing like the US, to allow adoptions and immigration of children from Guatemala. So it is a mixed bag. Remember that if the US eventually changes its position and holds that Guatemala is not a Hague country, it can still implement additional requirements, or even shut it all down, similar to what it did for Cambodia and Vietnam.
Overall, JCICS considers the fact that Guatemala is the 2nd most popular country from which adopted children come a major benefit in this fight: there are lots of voice to be heard!
Posted by: Tifany at March 24, 2006 02:02 PMTifany,
Regarding item #3 and "grandfathering," the JCICS' summary of the meeting with the State Dept., "Hague Public Meeting Summary," states clearly that families who file their I-600 or I-600A before the convention enters into force in the U.S. will not be affected. You seem to have doubts, though.
Richard
Posted by: Richard Stollberg at March 24, 2006 03:55 PMFYI: Tifany has added an addendum to her statement which I included at the end of the original post.
Posted by: Kelly (guatadopt.com) at March 24, 2006 04:15 PMRichard -- in response to your question about the I600A/ I600 filing, I would love to see that this is indeed the case. I question it only because it logically does not seem to make much sense, given that the I600A is not country-specific. I also think it brings up lots of interesting questions about moving an I-600A/ I171H from another country to Guatemala...(i.e. I-600A approved for country X, and family files an I-824 to move it to Guatemala); in this case, will the State Dept still use that filing?
Again, I would love to see that as the line; however, until formal statements come out confirming that, I would also like to see famiies through as much of the process as possible.
Tifany
Posted by: Tifany at March 24, 2006 04:26 PMThank you Tifany for taking the time and energy to explain this to us. I am so deeply concencerned for the "most vulnerable" who may be affected......... the children of Guatemala.
Adoptions despreately need to continue - for the sole pupose of giving these precious children a chance, a hope a future.......it is yet to early to know what will eventually be the outcome , and I hope it is not what happened to Vietnam and Cambodia. I shudder to think that the same future would hold for Guatemalan adoptions.
Again, thank you.
Blessings,
Gloria Pickering
mom to 5 Guatemalan blessings
Thanks for all your efforts. My qustion is regarding your comment, "I believe, as does JCICS, that any family that begins within the next few months should be fine." I "began the process in June of last year, meaning I was paper ready and on my agency's list for a referral. I don't expect to get that referral until late fall 2006 or possibly Dec 2006. So, I won't begin "the process" in Guatemala until then. Which part of beginning the process were you referring to (i.e. proceedings beging to adopt a referred child in G., or you've begun the wait in the U.S, with a referral a long way out)? Thanks.
Posted by: Betsy at March 25, 2006 01:50 PMBetsy:
The Dept of State indicated at its March 17th meeting (according to the JCICS summary) that the cut-off line imposed in the event of a shut-down will be the receipt date of the I-600A.. In your case, your I-600A may exire before your child comes home.. In this case, you will need to reapply for a new I-171H (i.e. file a new I-600A), and I question how the Dept of State will handle cases like that..
However, based upon an implementation date of late 2007, you should be fine either way.. Of course, no guarentees, but that is my best guess.
Tifany
Posted by: Tifany at March 26, 2006 01:00 PMThank you for your committment to providing information on the status of Guatemala adoptions and this current issue.
In all that I have read, I still am left with confusion on the over arching question; after cutting through all the legal and political details, what is it that the US government believes that that Guatemala adoption process is lacking that would justify such a drastic and damaging action to Guatemala adoptions and the prescious children who will be affected?
I have a daughter who I am waiting to bring home, in the next couple of months, and am saddened to think that our government wants to put a stop to this for future families and children.
Posted by: Rich at March 26, 2006 03:40 PMWe just brought our son home on Feb 15, and we want to adopt an second child. Would we have time to file the paperwork and start the process before the cut off date? If we get a referral before 1/07/07 would we be safe? Also our agency says that there needs a six month wait between the first and second child. With this new law, I wonder if they will change their minds.
thanks
Shawn
Tiffany,
First off, Congratulations on your recent adoption from Russia, I too am a new parent of 2 from Russia.
Now, Why did YOU choose Russia?
Posted by: stuart at March 30, 2006 05:18 PMI won't be old enough to adopt for at least 3 or 4 years, but I really want to adopt from Guatemala. If this imminent change is made regarding the Hague Convention, is it likely to halt adoptions for the long term? (ie what evidence do we have from Cambodia and Vietnam? What political forces might eventually re-open adoptions?) Thanks.
Posted by: Emily at March 31, 2006 12:27 AMYour information is tremendously helpful. Thank you. Your comments indicate the US questions the procedures and safety nets in Guatemalan adoptions. What does this mean?
Posted by: Liz at March 31, 2006 01:16 AM