Fax: (202) 514-0560

Dear Mr. Cuddihy,

I am writing today to request that the BCIS resume authorizing DNA analysis for the adoption of Guatemalan children by U.S. citizens. As you are aware, BCIS requires a positive DNA match between a child and his or her birthmother before an adoptive family can secure a U.S. immigrant visa for the child. This U.S. requirement was in place for nearly two years before the Guatemalan Congress issued its own similar regulation, and is completely unrelated to the Guatemalan requirement for DNA verification. Recently, at the behest of the PGN (or the branch of that department known as the Central Authority), the BCIS has stopped granting authorization for the requisite DNA analysis. Instead, attorneys representing adoptive parents are referred to the Central Authority for DNA analysis. We see several serious problems with BCIS’ decision to reject requests for DNA authorization, and these problems will likely create unnecessary delays in the homecomings of adopted children from Guatemala who fall into the “transitional” category (i.e., those adoptions initiated between March 5, 2003 and June 30, 2003).

First, the Central Authority has no procedural system in place to authorize and perform the requisite DNA analysis. In fact, the Central Authority’s proposed “DNA laboratory” is not yet operational. Consequently, it is currently impossible to obtain the DNA analysis required for U.S. visa approval for adoption cases initiated between March 5, 2003 and June 30, 2003.

Second, recent decisions by the Guatemalan courts have called into serious question whether the Central Authority has jurisdiction over adoptions by U.S. parents. You must be aware that ongoing legal proceedings in Guatemala challenge many aspects of the recent changes in intercountry adoptions. These include constitutional challenges to the legality of Guatemala’s accession to the Hague Convention on Intercountry Adoption and the legitimacy of the Central Authority and its regulations (including those relating to DNA verification). The Constitutional Court’s decisions are currently pending in these cases. The Constitutional Court is also hearing an appeal of a recent judicial decision (based on an amparo), which ruled that the requirements of the Hague Convention cannot be applied to adoptions by U.S. citizens, affirming the third party status of the U.S. with respect to the Hague Convention. If the Constitutional Court rules that the entry was unconstitutional or affirms the lower court’s decision regarding U.S. adoptions, the Central Authority will have no role in such adoptions and the PGN will be obliged to resume processing these cases. By agreement between BCIS and the PGN, however, the PGN will not process these cases until the U.S. Embassy has issued visa pre-approval, which is, of course, conditional upon a demonstrated DNA match between the relinquished child and his or her birthmother. Should this happen, all transitional cases that have not yet obtained BCIS DNA approval (which total over 100 cases) would be delayed while:

1) the attorneys procure new official translations for the 26 documents required by BCIS for DNA authorization. According to new U.S. regulations, these translations must be no more than 30 days old and typically cost several hundred dollars per set (notably, this is comparable to the price of a DNA test).

As stated below, it is our belief that this 30-day requirement should be waived for all transition cases to facilitate the timely processing of these cases that have already been subjected to unnecessary delays;

2) the U.S. provides authorization for DNA studies;

3) the samples are collected and processed by laboratories in the U.S.; and

4) the results and corresponding paperwork are reviewed by the U.S. Embassy to grant visa pre-approval.

These delays would add at least two months onto a process that has already endured more than four months of needless delays. Immediate resumption of DNA authorization by the BCIS would reduce, if not eliminate, the additional delays. In my view, it is therefore imperative that the BCIS resume DNA authorization so that adoptions can be completed as quickly as possible pending the resolution of the legal proceedings in progress in Guatemala.

Request for Action

We propose that the BCIS in Guatemala resume DNA authorization and visa pre-approval for all adoption cases initiated prior to June 30, 2003. We also request that the 30-day requirement mentioned above be waived for all transition cases. For those families that request authorization, DNA analysis should be conducted under previously established guidelines and at the expense of the adoptive parents. Adoptive parents and birthmothers should be informed by the U.S. Embassy that an additional DNA test may be required by the Central Authority for completion of the adoption process within Guatemala. The BCIS should agree to recognize either a DNA study authorized by the U.S. Embassy or one conducted by the Central Authority to meet visa qualifications.

This approach would enable the parties directly involved in the adoption (adoptive parents, birthmothers, and their legal representatives) to make an informed decision regarding whether to request DNA analysis under the auspices of BCIS (i.e., in which case the adoptive parents would assume the financial responsibility for a potential second DNA study), or wait and undertake only a single study. In this way, the BCIS would not be interfering with the “new” adoption requirements should they be upheld by the Constitutional Court or codified by the Guatemalan Congress. Likewise, the BCIS would not be contributing to delays in emigration of Guatemalan-born adopted children to their permanent U.S. homes should the Central Authority regulations be struck down by the Guatemalan judicial system.

U.S. families are already struggling to determine how to overcome difficulties created by PGN and the Central Authority’s actions since Guatemala’s accession to the Hague Convention. The U.S. Embassy’s suspension of DNA authorization is one further obstacle for these families, and one that, most regrettably, originates with the U.S. government. Concern over the U.S. Embassy suspending DNA authorization extends far beyond those families who are personally experiencing these additional delays and uncertainties. In fact, many view this action as the unfortunate endorsement by the U.S. Department of State of the legitimacy of the Central Authority and its regulations. At best, imposition of additional delays by the U.S. government is disheartening to all involved. We ask that you please resume DNA authorization immediately, and thereby help the children involved move one step closer to being united with their permanent families in the U.S.

Sincerely,

Your name

Your address

cc: Michelle Bernier-Toth, OCI, U.S. DOS fax: 202-312-9743

Senator Mary Landrieu, Congressional Coalition on Adoption: fax: 202-224-9735

Steve Vann, OCI, U.S. DOS fax: 202-312-9743

congressional representatives