Thursday, October 29, 2015

And... back to frustration!

On Friday, October 23rd, USCIS and DOS hosted a conference call for Haiti adoption stakeholders.  Together they have created this chart: http://travel.state.gov/content/adoptionsabroad/en/country-information/alerts-and-notices/haiti-11.html.

Information regarding a child's name after adoption is in direct conflict with information I was given personally at IBESR on Friday, October 16th.  Unfortunately, this is par for the course in Haiti.  If you want a Visa for your child, you will need to follow the instructions provided by USCIS and DOS.

According to the information that USCIS and DOS have, your child must have the surname of his biological parents removed from his name on his adoption judgment and his certificate of adoption.  However, all three entities will accept a passport issued prior to November 1st, 2015, with the child's original surname still in place, provided that you can show that is was made using the original adoption certificate with the Haitian surname included.  This will save families much time and money, but the decision (and the inconsistency) remain maddening.

IBESR claims that they never discussed name changes for abandoned children with USCIS and DOS, while USCIS and DOS state that they asked about them repeatedly and could not get an answer.  Actually, I believe both parties!  I suspect this is a cultural issue.  In the United states, your surname is the name that is after your first name and your middle name, if you have one.  In Haiti, a surname is the family name given to you by your parents, which just happens to be tacked on after your first name(s).  Therefore, asking about an abandoned child's last name makes no sense at all.  They don't have surnames through Haitian eyes, because we have no idea who their birth families were.  The mayor of wherever the child was found will give him one or two or three names, and whichever one of them happens to be last in line still isn't his "last name" in the sense that we consider it to be one.

At this point, it seems that USCIS/DOS want us to remove whichever name the mayor put in last position on an abandoned child's birth certificate, and most judges are not doing so.  They're simply giving the child his new family's last name on the end of the names he already has.  Not sure how this one is going to play out...

Please refer to the DOS charts for your next steps:http://travel.state.gov/content/dam/aa/pdfs/Haiti-Chart-Steps.pdf

DOS has also released a list of anticipated court filing costs.  These are generally accurate for documents made in Port-au-Prince.  Regional courts may require an expedite fee if you want your documents done quickly, as will the National Archives and parquet/MOJ/MFA for legalization.  Please note that the DOS fees do not include any payment for the (exhausting) labor of the person performing the work, nor the cost of paying an attorney to write a letter to the Dean.  Also, most courts will not issue receipts for payments made.

For those families whose child's biological parents relinquished before a Justice of the Peace before the issuance of the new law on November 13th, 2013, the following is a list of steps to be taken, as specified by IBESR and the Deans:

1.  Pick up dossier from USCIS
2.  Submit a copy of all the child dossier to IBESR
3.  Interview biological parent in IBESR + Sign consent
4.  Request letter + "Ordinance" to the Dean asking him for the appearance of the biological parent to sign a relinquishment
5.  Pick up relinquishment from Dean's office (plenary consent)
6.  Request letter to the Dean in order to obtain the "Soit communiqué" for the transfer of the dossier to parquet
7.  Appearance of the biological parents to Parquet for interview by the prosecutor
8.   delivery of "Conclusions" from parquet
9.   Redaction of Judgment (Dean Office)
10. Register of Judgment at DGI (stamps)
11. submission of the Judgment to parquet for Exequatur
12. Submission of dossier to the civil registrar to obtain the Adoption Decree
13. Submission of the adoption Decree to the National Archives for the "Attestation on Adoption Decree
14. Legalization parquet
15. Legalization Ministry of Justice
16. Legalization Ministry of foreign Affairs

17. Translation

It will be very challenging for any adoptive parent to complete these steps independently.  Independently adopting families might want to consider seeking professional assistance.

Monday, October 19, 2015

Confirmation

This morning Margarette and I deposited three dossiers with USCIS.  They’re not allowed to tell us a darn thing about all their meetings, but they can tell us if they can accept the particular dossiers we hand them.  And they can – all three of them.  Two have plenary consents (well, one has a consent to simple OR a plenary adoption, but we submit that one with a letter explaining what the word “or” means) and adoption judgments that refer to that plenary consent but don’t say the word plenary in their own text.  One has a passport and all of her adoption decrees written to include her Haitian last name as her new middle name.  And USCIS accepts them all with a huge smile.  This particular worker is just as thrilled as I am with the way everything worked out.  She is a Haitian attorney and was no doubt cringing the whole time this devastating tempest in a teapot was going on.

We all owe a huge debt of gratitude to the crèche directors and facilitators who ran themselves into the ground insisting that the judges, deans, and IBESR communicated before the delegation ever arrived.  It was only through their labors that IBESR was able to present USCIS with a concrete answer to their questions regarding simple vs plenary adoptions.  But for them, dozens of children would have languished in orphanages for many, many months longer.

All is well with the world.

What it all means: simple adoption vs. plenary

We can expect an official release of information from USCIS and DOS around the end of this week.  But in the meantime, here is the information ABI has gathered.  Please note that this information is being provided free of charge as a charitable service.  It does not constitute legal advice or recommendations in either country and should not be construed as such.

If
  • Your child’s relinquishment was issued in Children’s Court and is explicitly plenary AND
  • Your adoption judgment refers to that plenary relinquishment AND
  • Your certificate of adoption refers to that adoption judgment

Then:
  • Your adoption is plenary (regardless of what your child is named).

Check with your agency to confirm that all is as described above.

If your adoption is based upon a relinquishment issued in Tribunal court before a Justice of the Peace, prior to the new law, even though that relinquishment was the correct legal form at the time, you will need to convert your adoption from simple to plenary. 


This is a complex process and it is not recommended that US Citizens attempt to do the legal work in Haiti themselves.  Your odds of producing correct documents are not good.  I wouldn’t try to do it myself, and I’ve been working here for twelve years and know the language.  It’s a job for a professional-someone who can document having successfully processed 50+ successful adoptions to the US.  ABI offers reasonably priced consulting services for conversions, and I imagine some of the other highly experienced agencies will as well.  If you have a legally issued adoption passport, then you should not have to get another.  

We’ll pray that each of you can free your children quickly.  They have waited long enough.

Friday, October 16, 2015

Jubilation

We won.  Simple as that.  God is good!!

Margarette and I head over to IBESR, where we will spend the whole day doing what a Haitian facilitator does – waiting.  We’ve been promised a letter for a special case in which the Mayor of the town where a little boy was found abandoned signed a relinquishment authorizing a child for either simple or plenary adoption.  Apparently USCIS in Haiti is having some trouble with the meaning of the word, “or”.  This is one of those situation that gives me ulcers.

I leave Margarette downstairs and go upstairs to explain to an IBESR staffer that Haiti does not have to issue an official letter to DOS for Hague cases before they issue the referral to the adoptive family.  That is backwards.  They need to issue the letter after the family has accepted the referral.  I am absolutely, positively certain that this message has been conveyed repeatedly to IBESR because I know the person at DOS who conveys it, and she is a plain speaker.  Maybe Kreyol will work better than French, so I give it a shot and ask her to please, please release the referral letter for one of my families adopting teenage boys already.  We’ll see if my explanation did any good.

Back downstairs where at last I catch a glimpse of the elusive Me. Andolphe Guillaume, principal legal counsel to IBESR.  Naturally, he comes in while Margarette has stepped out to talk to someone else.  I’m on my own and praying with all my might that it is not my lousy Kreyol and desperate hopefulness that make it sound like he is repeating all of my own legal arguments back to me as he explains that plenary means plenary, that a judge has the discretionary right to name a Haitian child however he wishes (including making her original Haitian surname her new middle name) and that everything I dared hoped for is going to happen. 

A bi-lingual colleague helps me out as I make him repeat everything as if speaking to a very stupid small child.  I can’t afford not to understand fully what he is saying.  Our government personnel heard this news yesterday, but they are absolutely forbidden to tell me, person to person, what the outcome of their meeting was.  It wouldn’t be fair, and the US Government releases critical information in memos examined and approved by committee. IBESR is less formal, and that is why I can tell you today that if your child has a plenary relinquishment, all is probably going to be okay.  Hallelujah!!!

Margarette and I wait out the whole day, and six hours later we leave clutching the lever we’ll use to open the door for every other child – a legal opinion from Me. Guillaume explaining why a plenary adoption is a plenary adoption.  And also an explanation of what the word “or” means.


I just might sleep tonight, and I hope all of you who waited and suffered will too.

Wednesday, October 14, 2015

Frustration

I had eight days’ notice for this meeting.  Eight days to arrange travel, tell my family that I was leaving for Haiti two weeks after returning from a conference with all the adoption agencies and DOS in DC, and to arrange for a stay of execution… er, permission to turn in my assignments late at William Mitchell, where I am a first year law student.

So here I am, in a room filled with seven delegates from USCIS and DOS, many of whom I just saw in DC a few days ago, the Haitian DOS and USCIS staff, and a gathering of agency representatives.  Most of the representatives are unfamiliar to me.  As it is forbidden by IBESR for an agency to have a representative who is also an orphanage director, many agencies have chosen people who are new to adoptions processing to work on their cases.  Worrisome!  We addressed the situation by having our primary partner in Haiti pass the reins to a very competent and caring friend to watch over our beloved kids, and incorporate herself as an adoptions facilitation service in Haiti.

Guess who isn’t here?  IBESR!!  I am beside myself with frustration.  Turns out this meeting is a fact gathering session for DOS and USCIS, so that they are very well prepared regarding all the issues we’re facing.  I appreciate the sentiment and the effort to really understand what’s going on, but these poor ladies already have heard an earful from me.  They don’t need to hear it again.  When it’s my turn to speak, I stand up and express my disappointment, because what I wanted to do was debate the legality of claiming any adoption based on a relinquishment in Children’s Court is not plenary.  It IS.  I won’t bore you silly with the details, but I shared my analysis with U.S. attorney Kelly Ensslin Dempsey and anyone in Haiti who would listen, and they all concur with my logic and my reasons.  Plenary is plenary!!

USCIS and DOS tell me that they are not here to debate Haitian law with the Haitian government, which I suppose makes sense.  But I have no time for sense.  We are aware that there are at least 87 families affected by the latest debacle in Haitian adoptions.  I only have time for what is morally (and legally!) right.

I am exhausted and driven wild by the finger pointing.  Our government says IBESR has ordered them to stop and evaluate simple versus plenary.  IBESR is saying that it is USCIS and DOS who told them they won’t process any more cases.  I know for a fact that a great many of the US personnel involved have a strong personal belief that the whole issue is imaginary for most of the stuck cases, but USG policy includes a potent gag order for USG personnel.  I’d probably last about seven minutes working for DOS before they fired me!


After the meeting the delegation head out to IBESR.  I head out to BRESMA, where I can spend some desperately needed time realigning my perspective and preparing for the next battle.  Kelly and I have not been fighting alone.  Now we must wait and pray that those with sandals on the ground in Haiti, agitating for common sense and correct statutory interpretation, have won the battle.