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by Kelly Ensslin

Bureaucratic Power Struggles, aka Adoption Processing Ping Pong

Just last week, an American family found itself at the center of a monumental power struggle between USCIS and the Department of State (through its US Embassy in Port Au Prince). The family (we’ll call them the Smiths) had completed a lawful and final adoption of two small children in Haiti in October 2012, after meeting and falling in love with them at the start of that same year. The children should have been coming home at last, but instead USCIS said their case was approved and the US Embassy said the investigation still wasn’t complete. The family was stuck between the two agencies, and unable to move forward.

So how did this happen? In November 2012, the Smiths submitted the paperwork (I600 Petition) to USCIS to bring their children home, and four months later, they received provisional I600 approval on February 28, 2013. Their case, as was standard procedure at the time, was passed to the US Embassy in Port Au Prince for the I600 final processing and visa processing. As part of the I600 processing, the consular staff at the US Embassy conducted an interview with the birth mother in May 2013, three months after provisional approval was issued. The consular staff conducting the interview claimed that the birth mother did not fully understand the consequences of international adoption and that she no longer consented to the adoption, and for these reasons, one month later, the case was sent back to USCIS with the recommendation that the I600 approval be revoked.

In September 2013, USCIS in fact revoked the I600 approval given to the Smith family, and they appealed. They conducted an investigation to ensure their children were in fact true orphans, as their prior contact with the birth family stood in stark contrast to the allegations made by the US Embassy. Through their investigation and interviews with the birth family, they discovered the truth – their children were orphans as a matter of law. The birth parents fully understood the consequences of adoption at the time they placed their children in the orphanage, and fully consented to the international adoption of the children by the Smith family when they appeared in court in Haiti. The birth mother told a very different version of her interview with the US Embassy, and the truth of that clandestine meeting may never be fully known. All birth parent interviews are conducted without the presence of any third party or neutral, and unfortunately, what was said and what was intended is often the subject of protracted immigration proceedings for families and their children. Indeed, the lack of transparency in this process created the problems for the Smith family and their children.

Nonetheless, the Smith family appealed the denial of their I600, and on January 15, 2014, their I600 was again approved. USCIS found as a matter of law that the Smith family had satisfied their legal burden. It was a happy day, and the Smith’s I600 file was returned to the US Embassy for visa processing. The Smiths believed that their two-year journey was finally coming to an end, and the children they had adopted more than a year ago would finally be coming home.

Sadly, rather than process the visas for this case, the US Embassy took it upon itself, in contravention of the law and best interests of the children, to demand another interview with the birth mother. The told the Smith family, via email, to arrange for the interview in less than three days’ time. The US Embassy took the inexplicable position that the very evidence relied upon by USCIS was unreliable and that it had the authority and duty to re-adjudicate the I600 orphan petition. Such is not the case, as the Smith’s file had been returned to the US Embassy for visa processing only. Visa processing entails verifying the identity of the applicant, ensuring that the applicant poses no national security threat to the United States, and ensuring that the application poses no public health risk to the United States.

Over the next several weeks, the Smith family protested the baseless demand of the US Embassy, and sought the assistance of USCIS. When no progress was made to resolve this case, the Smith family made the decision to go to Haiti, search for the birth mother in one of the most dangerous places on earth, and try to comply with the misguided demand of the US Embassy to conduct another interview. At this point, the US Embassy changed the rules again and demanded that the Smith family play no role in finding the birth mother. Instead, the US Embassy took the unusual and unlawful position that the Smith family could not take responsibility for finding the birth mother, and notified them that it would use the two-year old contact information it had for the birth mother at some unknown point in the future and attempt to arrange for the interview itself.

Orphan Ping Pong

Click here to view the graphic depiction of this story.

Fortunately, at the very end, USCIS intervened and took responsibility for the birth mother interview. The Smith family was fortunate enough to find her and produce her for the interview, which fully confirmed the facts as set forth by the Smith family – that the birth parents knew the consequences of adoption and chose adoption for their children. Today, the Smith family should be coming home to the United States at long last. Unfortunately, however, it took longer than was necessary, cost more than was necessary, and caused more suffering for the children and parents than was necessary.

In the end, the US Embassy thought it knew better than USCIS, and sought to usurp the responsibility and authority of USCIS in this case. This senseless power struggle repeats itself in countries all over the world where the US Embassy plays any role in processing I600 petitions for USCIS.

How do we fix this? Luckily, there is legislation that would prevent this from happening again to other families. Children in Families First (CHIFF) eliminates the power struggle by clearly defining each agency’s scope of responsibility and decision-making authority. CHIFF minimizes the dysfunction that exists today by eliminating the blurred lines of responsibility and the power struggle that follows.

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