This is a complicated case of a child stuck in between law and policy. In April 2018, the child at issue was allegedly found abandoned near a trash heap in the DRC, and subsequently placed at an orphanage. The Plaintiffs began the process to adopt the child in Summer 2018, and they filed the initial paperwork with the U.S. government in October 2018. This initial paperwork was approved. The Plaintiffs then had to file additional paperwork, including evidence that the adoption abroad was in accordance with the law of the foreign-sending country and evidence that the child was, in fact, an orphan. On April 4, 2019, a court in the DRC approved the adoption of the child to Plaintiffs. In May 2019, Plaintiffs filed the paperwork. This is where things started going awry. Apparently in 2016, the DRC enacted a law to suspend all international adoptions pending the creation of a public agency to oversee the process. There had been concerns of child trafficking. Now, six years later, no public agency exists. None has been created. Even more confusing was the policy steps taken in the DRC and by the U.S. government. After the new law in 2016, the DRC courts kept approving international adoptions, and the U.S. government continued doing the same. In April 2017, the State Department “strongly recommended” against initiating an adoption in the DRC. In May 2019, just as the Plaintiffs filed their paperwork, the State Department urged USCIS to stop approving petitions until the DRC lifted a suspension on exit permits for the children being “adopted.” In late 2019 to early 2020, the State Department asked the DRC to clarify the status of international adoptions, to which the DRC responded that although the adoptions being concluded (including that by Plaintiffs) were in violation of the law, they were nonetheless binding and enforceable, but, the DRC was not going to grant exit permits to the children. In July 2020, the US Embassy in Kinshasa recommended that USCIS place no weight on the validity of DRC adoption judgments. So, despite an adoption decree, which they got re-confirmed by the DRC Courts, Plaintiffs’ child remains in a DRC orphanage with no DRC exit papers and no U.S. visa.
The District Court concluded, after reviewing the record and hearing the parties’ arguments, that, “at least at this stage”, the child’s adoption decree from the DRC constitutes “evidence of adoption abroad.. in accordance with the laws of the foreign-sending country” and satisfies the U.S. regulation. The court concluded that the language in the U.S. regulation was ambiguous when it required evidence of adoption abroad “in accordance with the laws of the foreign-sending country.” In this family’s unique factual situation, despite the fact that the DRC court should not have granted an adoption, it did, and it is a valid and enforceable final judgment in the DRC. The court must examine foreign law, and need not recognize the foreign judgment if it was procured by fraud, with the burden on the government to demonstrate such fraud. This court is not going to reopen a foreign court case, and determine whether the foreign court correctly applied that own court’s law. The judgment cannot be collaterally attacked “upon the mere assertion that it was erroneous.” The U.S. government also argued diplomatic comity – that deciding in the Plaintiffs favor would “essentially constitute an endorsement of foreign corruption and would severely damage international relations.” However, the court took note that the DRC prosecutor supported the Plaintiffs request to have the adoption decree re-confirmed. Therefore, at least for this small portion of the Plaintiffs case, they provided an adoption decree sufficient to meet the requirements in the regulation.