Page 1 I n the past few years, the world of intercountry adoption has dramatically changed for families, practitioners and vulnerable children. Most nota- bly, the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Adoption Convention), an international treaty on adoption, came into force in the U.S. on April 1, 2008. e Hague Adoption Convention has the admi- rable goals of regulating outgoing and incoming cases to ensure more transparency and prevent abuse and trafficking. [e Hague Conference on Private Interna- tional Law is a global inter-governmental organization working for the “progressive unification” of private international laws. e Hague Conference on Private International Law had generated 39 conventions as of February 2009. e only convention discussed in this article is Convention 33, Convention of 29 May 1993 on Protection of Children and Co-operation in re- spect of Intercountry Adoption.] e Hague Adoption Convention has brought much needed reform to in- tercountry adoption. It supplants the existing “orphan” procedures for children coming into the U.S. from a Hague Convention Partner country. Families do not have the choice of which procedure to use, but must use the Hague Adoption Convention procedures if the child to be adopted is considered a “habitual resident” of a Convention partner country, the family is consid- ered a “habitual resident” of the U.S., and the child is obtaining an immigration benefit based on an adop- tion. e second major change is that the number of over- all placements to the U.S. has dramatically declined. Intercountry adoption to U.S. families dropped by more than half from 22,884 in FY 2004 to 9319 in FY 2011. [http://adoption.state.gov/about_us/statistics. php] e reasons for this decline are widely debated. Some of the changes are no doubt due to the coming into force of the Hague Adoption Convention, which has added a level of complexity to an already complex process. Large sending countries such as Guatema- la and Vietnam are currently closed to U.S. citizens attempting to adopt. Other large sending countries, such as China and Russia have seen overall numbers of placements decline and more referrals for older and special needs children instead of infants and tod- dlers. ere have been concerns about fraud and the lack of transparency in some countries, such as Ethi- opia, which have led to a slowdown in the processing of cases. Domestic adoption has been on the rise in some developing countries, such as Korea and India, leading to a decline in intercountry placements. [For a fuller discussion of this topic, see “Global Trends in Intercountry Adoption: 2001-2010,” Dr. Peter Selman, Ph.D, Adoption Advocate, No. 44, National Council for Adoption, February 2012.] e third major change is that the options for children already present in the U.S. have narrowed. In the past it was common for a U.S. citizen relative to seek an immigration benefit through adoption for a child that was present in the U.S. In that situation, the family law attorney might have handled the domestic adoption and referred the client to an immigration attorney for further assistance. e immigration attorney would then wait for the family to accumulate the two years of legal custody and physical residence and then, file the USCIS Forms I-130 and I-485. However, since April 1, 2008, the attorney who takes that course of action may incur significant malpractice liability due to lack of compliance with the Hague Adoption Convention. Sadly, the attorney and the family oſten do not learn of this error until more than two years aſter the adoption has been completed, at the time of the adjudication of the USCIS Form I-130. e reason for this narrowing of options is that the Hague Adoption Convention also applies to domes- tic adoptions when the adoptee is a citizen of another country where the Hague Adoption Convention is also in force. At the outset now of every adoption, both do- mestic and intercountry, an analysis must be made as to whether the case at hand falls under the scope of the Hague Adoption Convention. is analysis is nec- Intercountry Adoption, Domestic Adoption and the Post-Hague Landscape [Published in Immigration Practice Pointers, 2012-13 Ed. (AILA 2012)] by Karen Stoutamyer Law, Dan Berger, Massiell Tercero-Parker, and Emily Ferron
Intercountry Adoption, Domestic Adoption and the Post-Hague Landscape
Jul 09, 2023
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