A couple weeks ago, I wrote about an unexpected opportunity I had been given to get involved, sometimes in big ways and sometimes in small ways, with the legal guardianship process numerous American families are going through here in Uganda. (I had no intentions of having anything to do with this when I came to Uganda). It is more than a little inspiring to see these families respond to the undeniable call they feel to step out of their comfortable lives and add to their families in ways that are rather uncomfortable in order to provide a loving home for a child who is alone and unloved.
Since we arrived in Uganda two months ago, my family and I have met close to a dozen families in various stages of the process. Some families were here before we arrived and have just recently left. Others have come and gone since we arrived. Still others have arrived and are hoping to be able to leave with the newest member of their family soon. One couple I have recently gotten to know (via e-mail and telephone) had come and gone before we arrived, but their child is still here, caught up in a legal tangle the family has been desperately trying to resolve.
In a somewhat oversimplified nutshell, here is how the process works if an American family decides it wants to adopt a Ugandan orphan:
The process starts with an American family filing with the U.S. government an Application for Advanced Processing of Orphan Petition (called an I-600A Petition). This petition essentially seeks a classification that the parents are eligible to adopt a foreign-born child. This involves a “home study” and a demonstration by the would-be adoptive parents that they have the background and stability to care for this child. After an investigation, the USCIS will issue a Notice of Favorable Determination Concerning Application for Advance Processing of an Orphan Petition (called an I-171H document) if the family is approved for adoption of a foreign-born child.
During this time, the family is typically working with an agency in the United States who is, in turn, working with an agency/home/orphanage in Uganda to match the American parents with a Ugandan orphan. The Ugandan orphan arrives at a home or orphanage in a variety of ways – usually by death or abandonment by the parents. Once the American parents get their I-171H, they (usually through the American agency they are using) hire a Ugandan attorney to shepherd them and the child through the Ugandan government’s process. Sometimes, the parents hire the Ugandan lawyer before getting their I-171H, but it is best to wait until the American approval is in hand.
The Ugandan lawyer then hires an investigator to confirm that the child meets the Ugandan requirements for adoptability of the child. This involves seeking to track down parents or relatives of the child and tracing the chain of events that led the child to be placed into a home or orphanage. This adoptability determination also involves the local social welfare and probation officer preparing and signing an affidavit as to the current status of the child. Once this process is complete and the child is initially shown to be adoptable under Ugandan law, the Ugandan attorney applies for a court date and files an application for legal guardianship. (The reason the application is not for adoption is because Ugandan law precludes a non-Ugandan family from directly adopting a child unless the family first cares for the child in Uganda for three years). Once a court date is secured, the American family flies to Uganda to meet, usually for the first time, the child they are seeking to add to their family.
The arrival of the American family is usually timed such that the court hearing takes place within a week of their arrival. If all of the work has been done correctly and nothing problematic emerges during the court hearing while the judge is examining the witnesses about the child, then the court will typically issue an order granting legal guardianship over the child within a week or so of the hearing. From there, the adoptive parents apply for a Ugandan passport for the child that will allow the child to leave Uganda. With the court order granting legal guardianship in hand, this is purely an administrative process, but it usually takes at least a week or two for the immigration office issue the passport. Once the family has the passport allowing the child to leave Uganda, they next need a visa from the U.S. Embassy allowing the child to enter the United States. This process involves filing a Petition to Classify an Orphan as an Immediate Relative (called an I-600 petition) that attaches the court ruling and Ugandan passport, and leads to an interview with the U.S. Embassy in Kampala, Uganda.
While the ruling from the Ugandan court certifying that the child is adoptable under Ugandan law is necessary to securing a visa, it is not sufficient. The U.S. Embassy is duty bound to make an independent assessment as to whether the child meets the definition of “orphan” under United States law. As you might expect, Uganda’s definition of “adoptable” is not identical with the U.S. definition of “orphan.” The U.S. Embassy in Kampala is authorized to issue a visa for the child if the evidence presented clearly meets the requirements under the I-604 form used by the U.S. Embassy. If everything is clear and straightforward, then the U.S. Embassy in Kampala issues a visa and the family travels home. If, however, the petition is not clearly approvable, then the case is transferred to the USCIS office in Nairobi, Kenya.
The USCIS office then can approve the visa if it concludes everything is fine, or it can issue a Request for Evidence, which gives the family 87 days in order to produce additional evidence that demonstrates that the child is an orphan under American law. Because the Ugandan attorney has completed the process of securing the legal guardianship, and because the Ugandan attorney is unfamiliar with U.S. immigration laws, this is often the time the American parents hire an American attorney to help them navigate this process. After the American family responds to the Request for Evidence, the USCIS in Kenya either grants the visa or issues a Notice of Intent to Deny the visa application. The family then has 33 days to overcome this intent to deny by providing the necessary information. This is major scramble time.
This is precisely where a wonderful American couple finds themselves right now. This family got all of their paperwork completed in the United States, were matched with an infant girl who was barely clinging to life after being born addicted to drugs, got their court date, and then came to Uganda in November to give this precious little girl a family. Unfortunately, the birth mother has had mental challenges since she was a girl and doesn’t have any sense of motherhood (or reality – she accidentally killed her first child and thinks she, herself, is only eight years old), and often disappears for weeks on end. The child had eventually been taken by her uncle to an orphanage because he was unable to care for the very sick and neglected child.
At the court hearing, the judge (a God-fearing and compassionate man) granted them legal guardianship over the girl. They were thrilled. They got a Ugandan passport for the girl, and then had their appointment with U.S. Embassy in Kampala. After inspecting the paperwork and conducting the interview, the U.S. Embassy determined that the case was not clearly approvable because of issues relating to the “knowing relinquishment” by the mentally incompetent mother. Unfortunately, this is one of the situations where Ugandan law and American law differ in a material way. And since the Ugandan lawyers didn’t know the ins and outs of American law, and since no American lawyer had yet been engaged, the court’s order failed to satisfy the requirements of American law, though it did satisfy the requirements of Ugandan law. Accordingly, this case was sent to the USCIS office in Kenya for review. Sadly, the American parents had to return home to their other children without their child while this process unfolded. Fortunately, a saint of a young woman took in their little girl (along with the dozen-plus she is already raising), and gave her a wonderful, albeit temporary, home.
The USCIS office issued a Request for Evidence. The family gathered and submitted additional evidence. Unfortunately, however, the birth mother escaped from a mental hospital before a full examination and report could be issued. Nevertheless, the family hoped the new evidence they submitted would be enough to secure the visa. No dice. The USCIS in Kenya issued a Notice of Intent to Deny, which gave the family 33 days to overcome this presumption. Shortly after this Notice was issued, I was contacted by the little girl’s current caretaker, by Sara Ribbens (another American mother I assisted shortly after I got to Uganda), and by an American lawyer I was getting to know in conjunction with the Ribbens’ case and another case with which I was trying to help. I couldn’t help but feel like I was supposed to get involved, so I did. After a series of meetings and after securing a new Ugandan lawyer for the family, a new order was issued by the Ugandan judge that directly addressed the concerns expressed in the Notice of Intent to Deny. This new order was entirely consistent with the court’s prior order, but tracked the language needed under United States law. It is no coincidence that the meeting that broke the logjam occurred on the little girl’s first birthday and the new order was issued on the adoptive mother’s birthday.
There are now less than ten days before the American attorneys need to file a response to the USCIS in Kenya (incorporating the new order into the response), so we are by no means home free. We believe, however, that this new order more than adequately addresses the concerns raised in the Notice. Please pray that this home stretch goes smoothly.
All along the way, I have been trying to educate the Ugandan lawyers with whom I have been working on American law, and trying to relay to the American lawyers the situation on the ground in Uganda. Since I am not at all experienced or trained in either Ugandan or American family law, I suggested to both sides that we schedule a Skype call so that everyone could get to know one another and to better understand how they could work together to ensure that this sort of thing (meeting the requirements of one country’s laws while failing to meeting the other country’s laws) could be avoided in the future.
On Wednesday afternoon, six Ugandan lawyers (nearly the entire group of lawyers in Uganda who handle American legal guardianships) gathered in my office and we spent the better part of three hours discussing (with two American lawyers who handle most of the cases that get hung up at the U.S. Embassy) the common questions and challenges that arise. Everyone thought it went very well, and it looks like the American lawyers are going to be coming to Uganda in the next month or two to expand upon the collaboration in person.
Please be praying that this bridge being built between the American and Ugandan lawyers will enable more children to be placed with families more quickly and efficiently. Please also be praying that the USCIS will issue a visa for the little Ugandan girl to cross the Atlantic Bridge and join her family soon.
To read more about the plight of the young girl and her adoptive family I have been discussing above, click on the family’s blog here.