USCIS complacency surrounding alleged fraud in exporting Ethiopian children

By Yosef Yacob, PhD, LLM, JD

| December 29, 2011

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The processing of petitions filed by United States citizens for adoption of children
from Ethiopia
continues to raise serious legal and ethical concerns. [How
Ethiopia’s Adoption Industry Dupes Families and Bullies Activists.]

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 Ethiopia
have 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 States
and 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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