Interim Decision #1350
MATTER OF Lair
In VISA PETITION Proceedings
A-13550221
Decided by Board AZ97,85,1964
Beneficiary's adoption in China by petitioner's mother on behalf of, and without
the knowledge of, the petitioner and without petitioner knowing of the existence of, or personally meeting, beneficiary until latter was over 7 years of age
does not constitute a valid adoption in accordance with Article 1079 of the
Chinese Civil Code since it has not been established the adoption was effected
in writing or the beneficiary was brought up since infancy, meaning under 7
years of age, as a child of the adopter_
The case comes forward pursuant to certification of the order of the
District Director, Honolulu, Hawaii dated January 16, 1964 directing
that the petition be granted.
The petitioner, a native of China, a naturalized citizen of the United
States, 86 years old, male, seeks preference quota status under section
203 (a) (4) of the Immigration and Nationality Act on behalf of his
married adopted son, a native and citizen of China, who is alleged in
the visa petition to have been born on June 16, 1927 at Ha Sa Ping
Village, Toyshan, China.
The petitioner made a sworn statement to a Service officer on May
1, 1963 (Ex. C) . He testified that he was first married in 1930 to Wong
Shee in Ha Sa Ping Village, who gave birth to a son in 1932. His
first wife died in 1933 and their son died in 1934. Then he was
married for the second time in 1936 at the same village to Fong Shee
by whom he had no children. His second wife ran off about 1942
during the war with Japan. He identified the beneficiary as his
adopted son whose date of birth he did not know. He explained that
his mother, an old-fashioned woman, thought she would bring in a male
child to carry on in the household as his son and that she adopted the
beneficiary in 1934 while he was not in China. There was no official
record made of this adoption. He stated that he learned about the
adoption from one of his cousins who came to.Honolulu on his way to
Peru. He first saw the beneficiary on his 1935 trip to China when the
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child was about eight years old and was living with his mother and his
nephew's wife, Liu Shee. He remained in China for approximately
nine months during this trip and the child resided with him and his
second wife and that when he left China in 1936 the child remained
with his wife in the same household as Liu Shee, his niece. He next
saw the beneficiary in December 1955 in Hong Kong and the beneficiary
resided with him in his household as his son until he left Hong Kong in
February 1956. The beneficiary came to Hong Kong in December
1955 accompanied by his wife and two daughters. The petitioner's
second wife had already left him about 1942 or 1943. He explained
that an affidavit dated December 5, 1962 in which he stated that he
had adopted the beneficiary as his son in 1932 and that he resided with
his first wife from 1932 to 1933 and with his second wife from 1935
to 1948 did not reflect the facts as he had told them to his attorney but
that the facts regarding the adoption as set forth in his sworn statement were true to the best of his knowledge; that his wife and his
natural son passed away prior to the adoption of the beneficiary by his
Mother.
The petitioner subsequently made trips to China in 1957 and 1960, of
two to four months duration respectively, and he lived with the
beneficiary and his family when he went to China in 1957 but in 1960
he lived at a hotel because the beneficiary's quarters were too small.
He acknowledged the correctness of a summary of his situation would
show that he spent nine months with the beneficiary in 1935 to 1936
when he was approximately eight years of age; that he did not see him
again until December 1955 when the beneficiary was 28 years of age
when he spent about two months with him and again two months with
him in 1957, making a total of 13 months that he had resided in the
same household with the beneficiary during his lifetime. The petitioner stated that when he left China in 1936, when the beneficiary was
approximately nine years of age, the beneficiary resided with his
second wife and his nephew's wife, Liu Shee, also known as Wong
Shun. He stated that his second wife took care of the child up until
the time she ran away then his nephew's wife (his niece) took care of
him. The petitioner stated that he sent money to take care of the
beneficiary but that he only started keeping records since 1960,
although he sent money previously ever since his mother adopted the
beneficiary, except during the war years.
In a supplementary sworn statement dated May 10, 1963 the petitioner stated that the beneficiary was born in China in 1927, sixth
month sixth day, corresponding to July 4, 1927 which information he
received from his cousin, although no official record exists of the
beneficiary's birth. He reiterated that his true son died in the 10th
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month of 1933, Chinese calendar, corresponding to the 11th month of
the Western calendar_ The petitioner again refuted an affidavit submitted by his nephew's wife, Wong Shun, dated December 18, 1962, to
the effect that the beneficiary was adopted in 1933 at the age of four
years; that the beneficiary was six years old in 1933 because the petitioner went to China in 1935 when the beneficiary was eight years old
and he remembered starting him off to school. The petitioner stated
that his mother adopted the beneficiary on her own accord and never
told him and that he did not take any action toward making the
child his adopted child but that he consented to and accepted this
child as his adopted child. He stated that he has continued to support this adopted son and as far as he was concerned on the day his
mother adopted the beneficiary that was the day he had an adopted son.
The District Director's prior order, dated May 16, 1963, found that
based upon the testimony of the petitioner and all available evidence,
the beneficiary was approximately seven years of age at the time the
claimed adoption took place by the petitioner's mother in his behalf
and that the petitioner himself did not reside with the beneficiary until
after his eighth birthday. This conclusion is based upon a finding
that the beneficiary was born in July 1927. He also finds that the
petitioner could not have resided with the beneficiary for a period of
more than 9 months prior to the beneficiary's 21st birthday nor more
than '8 months after the beneficiary reached the age of 21 years, 4
months of which were in the same city but not in the same household.
The District Director concluded that the adoption was not in accordance with Article 1079 of the Chinese Civil Code which provides that
adoption shall be effected in writing, unless the person to be adopted
has been brought up as a child of the adoptive parents since "infancy"
which is construed to mean a child not more than 7 years of age. The
District Director concluded that the petitioner has failed to establish
that he is a parent as defined in section 101(b) (2) of the Act or that
the beneficiary was ever a "child" as defined in section 101(b) (1) (E)
of the Act, and that the claimed adoption could not have been recognized as legal under the Chinese Civil Code; that the petitioner is the
only remaining partner to the claimed adoption and he has failed to
establish that he has had legal custody of and has resided with the
beneficiary for the minimum period of two years as required by section
101(b) (1) (E) . He ordered that the visa petition be denied.
On appeal, by order dated September 25, 1963, after citing authorities, the Board held that since the beneficiary was born on July 4, 1927,
adoption under the Chinese law could have been possible in that the
petitioner's mother had adopted the child on his behalf before July 4,
1935 when the beneficiary became eight years of age, since under
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Article 124 of the Chinese Civil Code ages are reckoned from the date
of birth? Our decision ordered that the District Director should
consider the case in the light of the holding in Matter of Moon, 9 I. & N.
Dec. 633 and Matter of Yee Eleong Woo,
9 I. & N. Dec. 176. We
remanded the case for additional proof of the age at which the
petitioner claimed to have adopted the child, and to submit proof of
support, letters or photographs although the petitioner admitted that
he did not know of the adoption until a year after it occurred.
At remand, counsel for the petitioner submitted two affidavits by
Lan Sa Nim and Liu Shee in support of the petition. The affidavit
of the beneficiary, Lan Sa Nim, asserted that he was born on the 16th
of June in 1929 and that he was adopted by the petitioner in 1933
when he was four years old; in addition, he submitted a Hong Kong
Identity Card issued to him on February 9, 1956 showing that he was
then 27 years of age. The affidavit of Liu Shee also known as Wong
Shun, the niece, repeats her previous affidavit that she was present in
1933 when the beneficiary was adopted at the age of four years; that
when, the second wife of the petitioner disappeared in 1944 during the
Japan War, she took care of the beneficiary in her house since that year.
The order of the District Directory dated January 16, 1964, refers to
this additional evidence, and concedes that an act of adoption occurred
in 1933 when the beneficiary was either four or six years of age and that
this adoption was valid under Chinese law. This finding is directly
contrary to the testimony of the petitioner that his first wife died in
1932, that his natural son by that first wife died in November 1933,
that the beneficiary was born on July 4, 1927, and that he questioned
this same niece's affidavit about the beneficiary being four years old in
1933 but on the contrary alleges that he was six years old in 1933. The
petitioner also has stated that the beneficiary was adopted in 1934 after
the death of his natural sou iu order to provide him with an heir_
TheDistrict Director in his order of January 16, 1964 comments that
the petitioner submitted no proof of support, no letters, no photographs
dated prior to 1958. Apparently nonplussed by this dilemma, and
unable to reach a logical conclusion, the District Director ordered
that the petition be granted without citing any Chinese law, and
certified his decisionto this Board.
In a 'memorandum of law dated March 3, 1964 the Service takes
sharp exception to that portion of our decision of September 25,. 1963
which holds that a valid infancy adoption occurred merely upon the
'This conclusion appears to be of doubtful validity since the Judicial Yuan
Advisory Opinion, 1942, No. Yuan 2332, cited at page 153 of
8 I. & N. Dec. 151
states that the "infancy" provision shall be construed to mean a child not
more than 7 years of age according to the Par Eastern Seetion of the Library
of Congress, the age is computed according to Western reckoning.
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petitioner's mother taking the beneficiary into her household in China
without the petitioner's knowledge, and the child's resideneethereafter
with the peitioner's mother. The Service urges that under such a
theory, an immigration benefit could enure whether neither the petitioner nor his wife had ever seen the beneficiary or even knew of his
existence; and where the sole basis for the claim to status is the alleged
unwritten and undeclared action of a long-deceased parent or grandparent. The Service urges that the decision in the instant case must
rest on whether the evidence establishes a valid infancy adoption. when
the petitioner himself first met the beneficiary in 1935, and, if so,
whether there was the requisite two years of legal custody and residence with the petitioner and/or his second spouse_
A memorandum from Dr. Tao-tai Min, Far Eastern Law Division,
Library of Congress dated May 25, 1964 sets forth again that Article
1079 of the Chinese Civil Code provides that adoption. must be effected
in writing, unless the person to be adopted has been brought up since
infancy as the child of the adopter. The Judicial Yuan Interpretation Chinese Republic Year 31 (1942) No. 2331 defined "infancy" in
the above paragraph as a child who is under seven years of age and
Dr. Hsia has informally stated that this is to be interpreted as meaning
Western reckoning. The Supreme Court Decision. Chinese Republic
Year 29 (1940) ehang,No. 702 stated that if a childless person, subsequent to the book on Family Law of the Civil Code coming into
force, takes another person's child as his own child and such act meets
the adoption requirements in the Civil Code, although the party (the
child) has been called a szutzu (instituted heir) rather than yang-tzu
(adopted son.), he is nevertheless deemed to be an adopted son in the
Civil Code.2
With regard to the question of how a civil case is to be decided if no
applicable law can be found, Article 1 of the Civil Code 8 provides : In
civil matters if there is no provision of law applicable to a case, the
case shall be decided according to custom. If there is no such custom,
the case shall be decided in accordance with the general principles of
law.
While the Service makes reference to a work entitled An Outline
of Modern. Chinese Family Law by Mare Van der Valk (Peking,
1939), to deprecate the importance of the "institution of an heir" as
contrasted to an adoption under the Chinese Civil Code, it nevertheless
appears according to the Far Eastern Law Division of the Library
of Congress, that both an instituted heir and an adopted son are deemed
2 Mel, Chung-lisiek and T'ao Po-Ch'uan, ed. Ida fa liu yang biz pien (Collection
of six kinds of materials on six codes), II I Taipei, 1958, p. 541.
Book I, General Principles of the Civil Code was promulgated on May 23,
1929, and came into force on October 10 of the same year.
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to be adopted sons in the Civil Code if the act meets the adoption
requirements in the Civil Code.
From the evidence available in this confused record, we believe that
the best evidence consists of the sworn statements of the petitioner
whose testimony appeals to us as being both forthright and honest.
The petitioner has contradicted the affidavit of his niece and the subsequent affidavit of the beneficiary does not appear to be persuasive.
We will make a finding that the beneficiary was born on July 4, 1927;
that the beneficiary was adopted by the petitioner's mother after the
death of his first son in November 1983 probably in 1934; that the
petitioner did not learn about the adoption until he heard from a
cousin probably in 1935; that he did not meet the beneficiary until he
went to China in 1935 when the beneficiary was eight years old and
remembered starting him off to school; and that the beneficiary did
not reside with the petitioner and with his second wife until 1935 when
he was eight years of age.
The burden of proof of establishing eligibility for the benefit sought
under the immigration laws rests upon the petitioner. Matter of
Y—K—W—, 9 I. & N. Dec. 176 deals only with the matter of the twoyear legal custody and residence requirement contained in section 101
(b) (1) (E) of the Immigration and Nationality Act as amended and
holds that such custody and residence may be with the adoptive
mother, assuming that a valid infancy adoption has taken place.
However, in the instant case, the petitioner has not borne the burden
of establishing that a valid infancy adoption has taken place. We
believe that the evidence establishes that the petitioner did not know
of the existence of the beneficiary until he was over seven years of
age and did not personally meet the beneficiary until he was eight years
of age. There is no evidence that the adoption was effected in writing
as required by Article 1079 of the Chinese Civil Code and the petitioner has not borne the burden of establishing that the beneficiary was
brought up since infancy, meaning wider seven years of age, as a child
of the adopter. The visa petition will be denied.
ORDER: It is ordered that the order of the District Director dated
January 16, 1961 granting the -visa petition be reversed and that the
'visa petition be and the same is hereby denied.
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