"Tolerable Collateral Casualities"–Ethiopian Adoption Commentary

Yosef Yacob, PhD writes another excellent commentary about the current Ethiopian adoption situation. Do you want to be one of the “tolerable collateral casualities”?

USCIS complacency surrounding alleged fraud in exporting Ethiopian children [EthioMedia 12/29/11 by Yosef Yacob]

“The processing of petitions filed by United States citizens for adoption of children from Ethiopia continues to raise serious legal and ethical concerns.

In an earlier commentary, I sought to highlight the potential national security implications incident to the apparent failure by the government of the United States to act expeditiously and resolutely in light of the grave allegations of corruption surrounding the adoption of Ethiopian children. [Adoption Fraud and the Ethiopian Government’s Response.]

As has been the traditional attitude towards commentators from African countries, critical opinions from natives may be dismissed by the West as boorish and ignored. However, to permit the perceived unadulterated pillaging of resources, in this instance, trafficking, displacing, and indeed stealing children from their parents and heritage under false premises will not be without severe consequence.

Trivializing Fraud

Despite the documented facts demonstrating fraud and misrepresentation, the unsettling status quo persists with superficial changes by the USCIS and the Department of State devoid of any effective protocols to ferret out the suspected racketeers in the adoption of Ethiopian children by good intentioned Americans. While, both USCIS and Department of State acknowledge patterns that “…suggest possible malfeasance or unethical behavior in some cases”, according to the USCIS “…no cases from Ethiopiahave been denied based on findings of fraud, and in fact, the vast majority of cases are approved”.

Is the Ethiopian community imagining fraud where none exists, is the international media fabricating events, is the video tape evidence of admissions, deceptions and misrepresentations by perpetrators fabricated, is the finding of wide spread fraud by the Ethiopian government insincere, or is one expected to ignore the distress echoed by American ethicists, Ethiopian mothers, the adoptees, and American adoptive parents as fictitious?

Not withstanding the surrounding significant moral, legal, ethical, legal, and social issues and the recurring plea for notice by the Ethiopian intellectual and faith communities, what is worrisome is the seeming complacency by the US Citizenship and Immigration Service and the State Department.

Ostensibly, rather than a serious effort to double means to eliminate the fraudulent schemes, the USCIS and State Department seem to trivialize the repeated allegations of adoption scams thus further clouding the integrity and transparency of the adoption process in Ethiopia. Namely, by discounting repeated allegation(s) by media and adoption and legal professionals and investigators of adoption agencies “…falsifying documents of children with biological parents, in collaboration with orphanages involved in illegal acts to show that they are abandoned and using these documents to obtain final court decision for international adoption.”

Institutional Response

Glancing at the documented response, one is strained not to conclude that foremost, to the State Department and the USCIS, is the fast processing of adoption petitions and clearing backlogs based upon pro-forma investigation or“Adjudications”. Sadly, it appears that the underlying social, legal, ethical, moral, and national security implications and the welfare and best interest of the children, their natural parents, and innocent adoptive parents, have been deemed tolerable collateral casualties by both the Ethiopian and American Governments.

According to the USCIS the agency is committed to working “…closely with the Government of Ethiopia and other stakeholders to preserve and protect this valuable program, while also seeking to improve safeguards and ensure the program’s integrity…and transparency”.

Yet, despite disturbing allegations and evidence, the marching order by the principal agency has been primarily focused on assuring compliance with “documentary”and bureaucratic requirements to “establish the relationship”, with minimal inconvenience to the adoptive parents, and to facilitate fast processing rather than invest in robustly investigating the propriety of the adoptions.

As a result, allegations of perceived child trafficking, child abuse and recently publicized murder of an Ethiopian child by unfit adoptive parents continues to mount and fuels the ire of the Ethiopian community both in Diaspora and at home. Whether based upon fact or invention, it is widely believed by the legal and social work community in Ethiopia that adoptions continue unabated even in cases involving“… many illegal acts that are still being investigated.”

The alarm seems to have fallen on deaf ears, inviting some writers to characterize the present state of affairs as a legally sanctioned export scheme of Ethiopian children to generate needed foreign exchange. The purchase price varying depending on brokerage fees, legal fees, fees to the biological parent’s or “guardians,” court fees, legal fees, all paid in the form of US dollars to secure the right to take the child as one’s own.

In spite of the initial assessment and finding of integrity in the process, the increasing pressure from the ethical community in the United States, compelled the USCIS and the Department of State to schedule a “Stakeholders Meeting” on Ethiopian Adoptions on October 28, 2011.

The public notice reads “Recently, the U.S. Embassy in Addis Ababa, Ethiopia, has identified a number of adoption petitions (Form I-600, Petition to Classify Orphan as Immediate Relative) that it has determined are not clearly approvable (NCA), and thus, must be referred to USCIS for adjudication. USCIS would like to explain what “not clearly approvable” means and how the processing of such cases will unfold once the cases are referred to USCIS.

On November 30, 2011, following the Stakeholder Meetings, the USCIS issued an Executive Summary outlining new and improved safeguards.

The State Department was proud to observe that previously, the U.S. Embassy Addis Ababa had only identified a small number of cases as “not clearly approvable” which were sent to the USCIS Field Office at the U.S. Embassy in Nairobi, Kenya by diplomatic pouch. USCIS Field Office Nairobi received fewer than 10 cases transferred from Embassy Addis Ababa in the past year. Most were private adoptions of family members.

In contradiction, USCIS “suddenly”became aware that the US Embassy in Addis Ababa had identified a large number of Form I-600 petitions as “not clearly approvable,” forcing the Embassy to “…to send a team of USCIS officers” to Addis Ababa, Ethiopia to “adjudicate the growing caseload” efficiently and quickly “to address the situation.” Timely and efficient processing of “not clearly approvable cases”, presumably involving fraud, misrepresentation, substantive inconsistencies, or other discrepancies, is the stated goal.

When a case is identified as “not clearly approvable,” by the Embassy, a USCIS officer for review the petition with three possible outcomes, a) the USCIS officer decides either that the case is immediately approvable; or b) the petitioner has not provided enough information, resulting in the issuance of a Request for Evidence; c) “in rare instances, there is evidence in the file that clearly indicates the case is not approvable.

USCIS Nairobi will review the“rare” troublesome “not approval case” and the documentary information provided, and “ultimately,” make a final and exclusive determination on the adoption petition and authorize the export of the chills to America.

According to the State Department, is anticipated that in a majority of these cases, the issues “…can be satisfied through further investigation, clarification or correction of evidence or gathering of additional evidence” through the petitioner, the adoption service provider, and/or orphanage representatives.

On November 17, 2011, in reference to Ethiopian Adoptions, the State Department posted the following notice to re-iterate the new “safeguards”:

Once adoptive parents are in possession of the final adoption decree from the Federal First Instance Court, approval letters from the Ministry of Women, Children and Youth Affairs, the child’s birth certificate and Ethiopian passport, and all other required Form I-600 supporting documentation, they (or their authorized agent) may file Form I-600, Petition to Classify Orphan as an Immediate Relative, with the U.S. Embassy in Addis Ababa if they have met the physical presence requirements for filing a Form I-600 petition overseas.

Upon receipt of the Form I-600 and accompanying documentation, the U.S. Embassy begins the Form I-604, Determination on Child for Adoption, and orphan status investigation – the process to determine if the child meets the definition of an orphan under U.S. immigration law.

The time frame for completion of the Form I-604 determination depends on the circumstances of each case, but can take up to several weeks or months. During this time, additional information or documentation may be requested by the U.S. Embassy for cases with insufficient or deficient supporting evidence to determine orphan status.

In certain cases it may be necessary to interview the child’s Ethiopian birth parent(s) or guardian, or the individual who found an abandoned child, to resolve errors or discrepancies discovered in the case file. The U.S. Embassy conducts such interviews for cases in which the consular officer deems interview(s) necessary to make a determination on the child’s orphan status. Birth relative and other interviews are often an integral part of the Form I-604 determination.

The U.S. Embassy must then determine whether the case is clearly approvable. If a case is clearly approvable, the U.S. Embassy approves the Form I-600 petition and issues an immigrant visa. If there are questions regarding the child’s orphan status or the information is insufficient to make a determination, federal regulation requires that the U.S. Embassy forwards the case as “not clearly approvable” to the USCIS Field Office in Nairobi, Kenya, for further processing.

When this occurs, the U.S. Embassy sends out a transfer notice to the petitioners when the case is physically forwarded to USCIS Nairobi, and provides contact information for further questions.

Upon receipt of a petition identified as“not clearly approvable,” the USCIS Nairobi Field Office notifies the parent(s) that the case has been received and issues requests for additional evidence and other notices, if necessary.

Upon review of all available evidence including any response to a Request for Evidence or Notice of Intent to Deny, USCIS issues a decision and notify the petitioners. For details of the USCIS process, please visit USCIS’Ethiopia Q&A page.

If the case is approved, USCIS Nairobi returns the case to the U.S. Embassy for visa processing.

The bureaucrats in their wisdom have naively devised that in certain cases it may be necessary to interview the “orphan child’s” birth parent(s) [contradiction] or guardian, or the individual who “found an abandoned child”, to resolve errors or discrepancies discovered in the case file to make an evidentiary determination concerning the child’s “orphan status”.

Thus, the troubled are assured that in the absence of the parents and relatives who are without means in the first instance, to travel to the Ethiopian capital, adoption decisions will be based upon the interviews of individuals who inexplicably “found”the “orphan” child, representatives of the allegedly corrupt adoption agencies and brokers, finders and facilitators, who have a stake in the“timely and efficient” processing of the adoption.

Moreover, the anxious are guaranteed that USCIS Adjudicators based in Nairobi, without demonstrated knowledge of Ethiopian customs, language, culture, norms, geography, history, ethnology, and facts surrounding the adoption scams or dependable contacts, [outside the Embassy compounds, with the faith, bro bono legal, human rights civil, and intellectual communities] in Ethiopian society are empowered to make these crucial final determinations conceivably on the basis of sanitized and fraudulent documents furnished by those with vested interests or alleged to be the very perpetrators of the scams.

The Way Forward

It is not inconceivable for both the State Department and the USCIS to have in their respective organizations, adjudicators from countries accused of failing to resourcefully address these horrendous fraud allegations and schemes. If lacking “in-house”expertise, preservation and protection of “this valuable program” suggests recruitment of knowledgeable adjudicators by the agencies or contracting for services of local consultants and or experts may be compelling.

Perhaps engaging these native adjudicators and experts who have some level of familiarity with the countries concerned and knowledge of the procedures, availability of alternate means to corroborate the legal status of children, and meaningful awareness of the endemic corruption and schemes may as a first step, lend credibility and credence and demonstrate good faith by the USCIS and the State Department.

Continuing to focus on clearing backlogs by sending the least experienced and skilled adjudicators could result in deleterious outcomes for these children, their families as well as continue to erode the standing and image of the United States. To contrive proper policies and implement the protective protocols and procedures requires more than a fleeting familiarity with the countries and surrounding norms and demands respectful engagement and partnership with their civil society.

The State Department and the USCIS have an enviable and unique opportunity to maximize the Service of their experienced native adjudicators and to competently attend to the allegations with deserved solemnity and care. Loathing the existing organizational talent in favor of facilitating speedy and efficient processing of adoption cases by those who are not familiar with the terrain on the basis of “documentary evidence” alone from remote locations is foolish and will induce predictable undesired long-term cost.

Equally, stakeholder meetings in the host countries, similar to the ones scheduled in the United States, will afford civil society in the host countries occasion to contribute in formulating the effective measures necessary to assure and satisfy the stated aspiration of transparency and integrity. The community directly affected is no less deserving and is equally if not more entitled to a hearing than the stakeholders in the United States.

Most importantly, it is in the best interest of all concerned if the United States disallowed adoptions from countries unwilling to be parties to the Hague Convention. As a party to the Convention, the United States should not abdicate the values and protective legal and procedural provisions embedded in the Convention to convenience its own citizens who seek to adopt children from countries vulnerable to fraud and corruption.

Lest we forget the tragic lesson learned in 2001, the Secretary of the Department of Homeland Security and the Director of the United States Citizenship and Immigration Service should pay heed. Protecting the national security of the United Statesand assuring that the right people receive the right benefits requires more than expressions. The task among other strategies demands the absent institutional norm that entails the right people being empowered to make informed decisions.”

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