By: James W. Ziglar
Date: May 22, 2002
Source: Ziglar, James W. "International Adoptions." GPO/USCIS, May 22, 2002 〈http://www.uscis.gov/graphics/aboutus/congress/testimonies/2002/1ZIGHOUS.pdf〉 (accessed July 14, 2006).
About the Author: James W. Ziglar became Commissioner of the Immigration and Naturalization Service (INS) in the United States in 2001. In November 2002, Ziglar left the INS and was its last commissioner before INS services were folded into the Department of Homeland Security under a reorganization plan implemented by President George W. Bush's administration. Ziglar subsequently joined the Law School faculty at George Washington University.
In the twentieth century, international adoptions increased after World War II, when tens of thousands of orphaned Jewish children were adopted throughout the United States and Europe. In addition, United States soldiers fighting in Germany and Japan produced a number of children who were half-American; immigration procedures changed to permit these children to enter the United States to live with their fathers or to be adopted by American families.
Many mainline Christian denominations, such as Lutherans, Seventh Day Adventists, and Catholics, encouraged international adoption and supported orphanages abroad; the plight of children suffering from poverty or neglect, in need of adoptive homes, was a subject addressed by religious volunteers and missionaries in coordinated activities in southeast Asian countries by the 1950s and 1960s. The Korean Conflict, in particular, brought home the issue of half-Korean, half-American children, who were shunned for their Amerasian status in Korea. Between 1953 and 1962, Americans adopted more than 15,000 children from abroad, many from South Korea. Religious and military families were some of the first to adopt internationally, a process that often fell outside of the supervision of child welfare agencies and was handled simply as a matter for the courts in the country of birth to approve.
Adoptions from Asian countries such as South Korean, China, Vietnam, and Cambodia have all increased since the 1960s. Many American soldiers who fought in the Vietnam War had children with Vietnamese women. As in South Korea, these half-American children were ostracized. In April 1975, more than 2,000 infants and children were evacuated from Saigon during "Operation Babylift," but thousands of other Amerasian children were left behind.
The 1987 Amerasian Homecoming Act, implemented in 1989, permitted more than 25,000 Amerasians from Vietnam to enter the United States. Though many of these new immigrants were teenagers, born in 1974 or 1975 as American involvement in Vietnam was ending, some were men and women in their twenties, fully grown adults seeking to escape difficulties in Vietnam.
Adoption from China increased in the 1990s as China's one-child policy led to the abandonment of female babies; in a culture that prized males, many couples sought to have a boy for their only child. At the same time, adoptions from Vietnam and Cambodia increased. In 2001 and 2003, Vietnam and Cambodia experienced corruption in the international adoption system as allegations of baby thefts, for purposes of selling abducted babies for international adoptions, came to light.
Mr. Chairman and Members of the Committee:
I welcome this opportunity to share with you my experience and objectives with respect to improving the Immigration and Naturalization Service's (INS) critical role in the international adoption arena. For those United States citizens who choose to open their hearts and homes to children from abroad, the INS shares with the Department of State responsibility for adjudicating orphan petitions and enabling a child's immigration to America.
The circumstances that arose in connection with the adoption of children from Cambodia and Vietnam in recent months thrust the INS into this issue early on in my tenure. The experience brings into sharp focus the many aspects of INS' global responsibilities: the interaction between our domestic and overseas offices and the Department of State, the interaction between U.S. immigration laws and the laws of the foreign sending countries, and the direct impact our work has on the hopes and dreams of United States citizens.
I am committed to working with you to improve INS' contribution to international adoptions. Along with the pressing security concerns of the day, I have made international adoptions a top priority for the INS. One of my first initiatives was to create a special Adoptions Task Force … The Task Force was created to under take a special humanitarian initiative to review certain adoption cases in Cambodia. The Task Force has also undertaken a comprehensive review of the existing INS structure for dealing with international adoptions….
Largely Positive context For International Adoptions
The suspension of orphan visa processing in Cambodia was implemented for good reason: there are serious deficiencies in the Cambodian legal framework on adoptions, and there are very real human trafficking concerns. However, the controversies that have arisen recently in connection with Cambodia and Vietnam must not make us lose sight of the largely positive context in which we do our work. Although in need of improvement, the current procedures that are in place have worked for thousands of U.S. families each year. The majority of cases have happy endings.
To the child
The INS' determination that a child is an orphan as defined under the Immigration and Nationality Act (INA), and is, therefore, eligible for immigration to the United States, is among the most sensitive adjudications we perform. In performing this task, the INS must bring to its work a core commitment to protect the interests of the child, which is at the heart of the process. Under the current statutory framework, we are obligated to make a determination as to whether or not this child is indeed an orphan—that is, a child without parents, as defined under the INA, and to uphold the laws that have been created to protect children in this process.
To the parents
We also have weighty responsibility to the American citizens—the prospective adoptive parents—who have invested their hearts, and often considerable resources, in this endeavor. The immigration process associated with adoption should not diminish the joys of providing a home to a child, but at the same time there are laws and procedures that must be honored. The INS must work to ensure that our efforts in upholding the law complement the commendable spirit that is at the core of the decision to open one's heart and home to a child.
Another factor that makes the international adoption process complex is that foreign countries in which parents seek to adopt are often characterized by extreme poverty and the accompanying societal uncertainties and pressures. These same countries may be struggling to establish the sound legal frameworks and well regulated adoption processes which would bring integrity to the intercountry adoption process and which make compliance with our immigration laws simpler. Also, even in relatively well-developed countries with strong legal systems, the legal adoption requirements can vary from country to country, even as they vary from state to state here, making the challenge of cooperation all the more complex and important….
Introducing "Hague-consistent" Safeguards for American Adoptive Parents: The "Adjudicate Orphan Status First" Initiative
Of all the changes the Task Force will address, the single most important operational improvement will be to introduce safeguards similar to the Hague Convention process for American adoptive parents as quickly as possible in certain more problematic countries. We are calling this the "adjudicate orphan status first" initiative.
The most serious problem with international adoptions is that in many countries, the process by which governments decide that birth parents are no longer providing care for their child and that the child is available for intercountry adoption is not always transparent.
As a consequence, some American prospective adoptive parents have experienced the heartbreaking situation in which they have traveled abroad and adopted a child, only to discover that the child does not meet the orphan definition and cannot immediately immigrate to the United States. For example, sometimes a foreign country allows Americans to adopt a child who is not an orphan because their laws are different than ours. Sometimes, particularly in poor and underdeveloped countries, unregulated and unscrupulous agents and facilitators take advantage of inadequate infrastructure and safeguards to lead American prospective adoptive parents to believe a particular child is an orphan when a professional review of the paperwork reveals serious problems and irregularities.
As I mentioned before, under the Hague Convention, signatory governments will be responsible for certifying that a child is eligible to immigrate under the laws of the prospective adoptive parents' country before they allow the adoption to take place. But prior to the Hague Convention being implemented and for nonsignatory states, we are exploring ways to offer a voluntary service to prospective adoptive parents who are thinking about adopting in certain countries, in essence, to adjudicate orphan first. We are in the process of developing this process with the Department of State, and look forward to being in a position to share the details on this proposal shortly….
We will do our best to ensure that clear guidance is provided to prospective parents, adoption agencies, and other stakeholders on how the process works; what to expect at each stage in the adoption process; and the legal requirements that must be met for a child to immigrate to the United States in an international adoption. We continue to seek to explain to prospective parents that adoption and immigration are separate processes, and that, for example, fulfilling the adoption requirements of a foreign sending country does not necessarily mean that American immigration requirements have been met. We encourage other stakeholders, such as adoption agencies, to meet their own responsibilities in this regard. We will also continue to encourage domestic INS offices, and overseas posts, to communicate, openly and regularly with all the stakeholders in the adoptions process, including adoption agencies and prospective adoptive parents. As always, we seek to ensure that the latest information is available on the INS and State Department websites, so that everyone involved in the process has access to the best and most recent information available….
Conclusion: Caution That The Process Will Never Be Simple
Improving the immigration determinations for which INS is responsible has been a matter of the highest priority for the Service since I have become Commissioner. I believe that we have a plan that will take us in the right direction. Yet I must introduce a note of caution. We cannot lose sight of the fact that many international adoptions take place in the context of some of the poorest and most unstable and underdeveloped nations in the world. Even with the significant improvements to our process that will be introduced by the Adoptions Task Force, the introduction of the IAA, and some of our longer-term regulatory and structural improvements, we will still face a complex and difficult situation in many of the countries from which Americans seek to adopt. Unregulated and unscrupulous agents and facilitators, including those that operate on the internet, will continue, to try to insinuate themselves in the process, and to exploit the necessarily complex layers of interaction between agencies of different governments. We will need to continue to be vigilant that American citizens and the U.S. government do not unintentionally contribute to a situation where baby selling and buying can occur.
International adoptions from China and Russia dominate the international adoption process, but other countries such as Ukraine, Cambodia, Kazakhstan, Guatemala, and Vietnam are the source of a substantial number of adoptions to such countries as the United States, Great Britain, Australia, and Italy. Between 1971 and 2001, more than 156,000 children from Asian countries were adopted in the United States.
The United States' immigration policies for determining eligibility for adoption are far more stringent than those procedures in many countries; as this testimony notes, in many instances children are placed for adoption in countries such as Cambodia or Vietnam, and the children are selected for adoption by U.S. citizens. During the document review process, however, the child's orphan status may come into question; in some countries, such as Ukraine, children are referred to as "social orphans" if one or both birth parents places the child in an orphanage. In some instances, the parents fail to relinquish parental rights yet for all intents and purposes abandon the child, leaving the child unadoptable. The U.S. vetting procedure unearths these cases, in part to prevent child bounty hunters from abducting children from parents who want them for the sake of selling the children on the black market for international adoption.
More than 265,000 children from countries other than the United States were adopted by U.S. citizens during the period 1971–2001; once the adoption is finalized in the United States, the children become U.S. citizens. In many instances, the children speak no English, the adoptive parents do not speak the child's native language, and the children face health and nutrition concerns. Ninety percent of all international adoptions to the United States involve children under the age of four; forty-six percent are under the age of one. As these children immigrate and assimilate into American culture, often with parents of a different ethnic background, they uniquely straddle two cultures within one family.
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United States Department of State. "International Adoption." 〈http://travel.state.gov/family/adoption/notices/notices_473.html〉 (accessed June 25, 2006).