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08. U.S. Department of State telegram to the U.S. Embassy in Mexico City concerning consular notarial services relating to adoption of Mexican children already living in the U.S. (August 4, 2003)


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R 041655Z AUG 03
FM SECSTATE WASHDC
TO AMEMBASSY MEXICO

UNCLAS STATE 224541

E.O. 12958: N/A
TAGS: KOCI, CASC, CJAN, MX
SUBJECT: REQUEST FOR NOTARIALS OF BIRTH PARENT CONSENT TO
ADOPTION DOCUMENTS

REF: MEXICO 005133

1. SUMMARY: Post has requested Department guidance
regarding how to respond to an increasing number of requests
from a Mexican citizen birth parent who wants a U.S. consular
officer to notarize the birth parent's final and irrevocable
consent to the adoption of his or her child who is already
living in the United States with prospective adoptive
parents. The birth parents, or the prospective adoptive
parents, seeking the notarized consent to adoption typically
indicate that the child in question entered the United States
unlawfully. At the time of entry to the United States, the
child did not qualify as an adopted child under Section
101(b)(1)(E) of the Immigration and Nationality Act (INA),
nor as an orphan under Section 101(b)(1)(F)of the INA. No
adoption has occurred in Mexico; and an adoption has yet to
occur in the United States. The notarized consent documents
are to be used in U.S. State court adoption proceedings.
Typically, the age of the child varies and the length of time
the child has been in the physical custody of the prospective
adoptive parents ranges from up to 12 years to just a few
months. The consent documents to be notarized may or may not
include the consent of both birth parents. Post seeks
guidance on whether to grant or deny this type of notarial
request. The Department has concluded that the notarial
request should be denied as not authorized by the laws or
authorities of the host country. END SUMMARY.

2. WHAT IS THE POLICY ON NOTARIAL REQUESTS? The policies
applicable to notarial requests are stated in 7 FAM 821-827
and 22 CFR 92.1-92.17 Generally, a consular officer should
refuse requests to perform notarials only after careful
consideration. A consular officer may refuse to perform a
notarial act if the officer has reasonable grounds to believe
that it will be used for a purpose that is unlawful,
improper, or inimical to the best interests of the United
States. Also, under 7 FAM 824 and 22 CFR 92.9, a consular
officer may perform only those notarial services authorized
by treaty between the United States and the host country or
that are permitted by the authorities of the host country.

3. IS THE U.S.IMMIGRATION STATUS OF THE CHILD RELEVANT? The
families involved usually ask for notarization the consent
documents to comply with a particular U.S. State adoption law
that requires the birth parents to relinquish all parental
rights in order for the adoption to proceed. Given that the
child's civil status under U.S. domestic family law is a
separate issue from the child's immigration status under
federal law, a family court, with the requisite consents, is
likely to grant the adoption. In some cases the adoptive
parents may only seek the adoption decree in order to give
the adoptee rights under State family law equal to that of a
birth child. In other cases, the parents may attempt
subsequently to adjust the child's immigration status. The
consular officer, at the time of the request to notarize the
consent to adoption documents, cannot predict or ultimately
know whether the child would qualify for an adjustment of
status or adjudicate the child's eligibility for a visa in
the future.

4. COULD THE CHILD'S STATUS BE ADJUSTED? Technically, in some
cases, once the adoption is granted in the United States, the
child may be able to legalize status under Section
101(b)(1)(E)of the INA depending upon whether or not the
child meets the Section 101(b)(1)(E)criteria. Under section
101(b)(1)(E), the adoptive parents must have two years legal
custody and two years residence with the child before filing
the immigrant visa petition; the two years legal custody and
two years residence with the child may occur before or after
the adoption, but if before the adoption, it must be based on
a grant of legal custody; and the child must be adopted while
under the age of 16 (except in applicable sibling
circumstances). Thus, the fact that the adoption occurs in
the United States and there was an unlawful entry of the
child does not preclude the possibility that the child could
adjust status. Informal information from BCIS confirms that
children in the United States who otherwise meet the
requirements of section 101(b)(1)(E) are able to adjust
status.

5. WHAT HAS BEEN THE PRIOR PRACTICE AT POST? On some prior
occasions, post has denied the notarial if the child was over
16 years old (ineligible to adjust) with the view that the
child would be placed in an untenable immigration
predicament. Post has on other occasions granted the notarial
if the child could adjust status (that is, if it was possible
to complete the adoption while the child was under 16). As
noted, Section 101(b)(1)(E) and its implementing regulations
do not require that the adoption take place in the child's
country of origin, so the attempt to adjust status under its
provisions is not unlawful or improper, and the results of
such an attempt cannot be known at the time of the notarial
request. Given this current state of the law, the Department
recommends that the child's unlawful immigration status and
ability to adjust status at a later date, should not be used
as the determining factor in a decision to deny a notarial
request.

6. WHY DO SO MANY OF THESE CASES INVOLVE ADOPTIONS BY
RELATIVES? A review of email information and cables from
Mexico and from other posts over the past two years reveals
that in most cases the birth parents, who were seeking to
relinquish parental rights and consent to the adoption of
their child, were relatives of the prospective adoptive
parents. Under current immigration law, it is not possible
for birth parents to place for adoption a child directly with
relatives in the United States. As noted, under Section
101(b)(1)(E)(adopted children), a designated, direct
placement by the birth parents to other family members is
possible; however, the prospective adoptive parents would
have to move to the child's country of origin to meet the
two-year legal custody/residence requirement. Under
101(b)(1)(F)(orphans), the birth parents may not directly
place the child with designated family members. Instead, the
child must meet the definition of orphan and be abandoned.
Under 8 CFR 204.3(b),"a relinquishment or release by the
parents to the prospective adoptive parents or for a specific
adoption does not constitute abandonment." Thus, there is
currently no legal and expeditious process for parents to
place their child for adoption with family members who have
already legally entered the United States. Because there is
no means (other than the two year legal custody/residence)
for a child to be adopted directly by relatives and
subsequently enter the United States legally, families
seeking to complete an adoption may well risk the illegal
entry of the child for placement with relatives with the hope
that the child may be eligible to adjust status at a later
date. Absent legislative changes to the definition of adopted
child or to the definition of an orphan to permit the legal
entry of children adopted directly by relatives, there is
likely to be an increasing number of similar cases and
pressure on post to notarize documents in which birth parents
relinquish parental rights and consent to the adoption of
their child with the stated goal of permitting an adoption of
the child to go forward in a U.S. State court. Given the
systemic nature of the problem and the need for legislative
and/or regulatory change to permit relative adoptions,
CA/OCS/PRI requests that post continue to forward
information on the nature and volume of notarial requests
that involve birth parent consent documents for children who
entered the United States without being adopted first(or
without a grant of legal custody for the purpose of adoption)
in the child's country of origin.

7. WHAT IS PROVIDED FOR IN MEXICAN ADOPTION LAW? As reported
by post, Mexican adoption law requires that U.S. citizens and
other non-Mexican citizens who wish to adopt a Mexican child
must adopt the child in Mexico in accordance with Mexican
law. Mexican adoption procedure includes a six-month trial
period during which the child lives with the prospective
adoptive parents to assure mutual benefit. The adoption is
not final until after this time, and the child cannot leave
Mexico before it is complete. The six-month trial period may
be waived at the judge's discretion. In the cases presented
to post to date, no child has been adopted in accordance with
the Mexican adoption procedures. Further, Mexico has ratified
the 1993 Convention on Protection of Children and
Co-operation in Respect of Intercountry Adoption (the Hague
Adoption Convention). The parties involved in moving the
child across national lines without first adhering to the
Hague Convention requirements for intercountry adoptions are
circumventing the protections afforded the child, the birth
parents, and the prospective adoptive parents by this treaty.

8. WHAT ARE THE RISKS TO CHILDREN IF SUCH NOTARIAL REQUESTS
ARE GRANTED ON A REGULAR BASIS? There are unwarranted risks
of substantial harm to a child who becomes involved in this
convoluted process. There is no pre-placement evaluation or
home study of the prospective adoptive parents prior to the
physical custody of the child being transferred; there is no
governmental entity (either Mexican or U.S.) approving or
overseeing the placement in advance of the adoption or
checking on the status of the child during the period the
child is residing with the U.S. potential parents, which
theoretically could extend for a lengthy period of time (that
is, from the time the child enters the United States without
inspection until the time the adopting parents and the birth
parents decide to complete an adoption); there is no
guarantee that the child will be placed with relatives and
the unsupervised placement of an undocumented child with
unknown persons who have not had a home study or been
approved to be adoptive parents in a particular State is
extremely risky to a child's safety and well being. On the
one hand, after the events have occurred and the child is in
the United States and the prospective adoptive parents are
attempting to adopt the child domestically and could in some
cases have the child's illegal immigration status adjusted,
it may be helpful for that particular child's situation to
grant the notarial. On the other hand, to condone, or
sanction after the fact, a process under which children are
first moved to the United States without any of the typical
child welfare protections applicable to adoptions, provided
for under Mexican adoption law or under U.S. immigration law
or by U.S. State law, is not consistent with the principle of
protecting the best interest of children.

9. HOW ARE BIRTH PARENT RIGHTS PROTECTED? In some instances,
the birth parent requesting that his or her documents
relinquishing parental rights and consenting to the adoption
of the child in the United States has represented that the
other birth parent's consent was not necessary or would not
be included. Because Mexican adoption law has not been
followed in these cases, it is difficult to ascertain if both
birth parents consent is necessary and if so, whether or not
it was properly obtained. In some cases, birth parents have
not understood the contents of the consent documents. It is
not possible for post to verify that the child in the United
States is actually the birth child of the parents presenting
the relinquishment of parental rights and consent documents
and thus a person's consent could be used to relinquish a
child who is someone else's child.

10. MAY THE NOTARIAL REQUESTS BE DENIED AND, IF SO, WHAT ARE
THE GROUNDS FOR REFUSING? In light of the factors discussed,
post should deny/deny requests to notarize U.S. State court
documents from Mexican birth parents in which the parent or
parents seek to relinquish parental rights and consent to the
adoption of their Mexican child who was moved to the United
States without first complying with Mexican adoption law
under 7 FAM 824 and 22 CFR 92.9 as not authorized by the laws
or authorities of the host country.
POWELL

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