Interim Decision #1488
MATTER Or CHAR
In ViSEI, Petition Proceedings .
A.--13924709
Decided by Board chow - 16, 1965 .
Since acts of human kindness referable to an undertaking to rear and educate
a helpless child do not alone prove an agreement to adopt nor is standing
in boo parentis the equivalent of adoption, the mere 'fact that the petitioning grandfather may have stood in taco parentis to the beneficiary grandson,
following the death of the latter's father in China when the benefielary was
only 17 months of age, is insufficient 'to effect adoption in accordance with
the applicable provisions of the Chinese Civil Code since in order to be reoognized as an adoption it is necessary that the adoptive parents have brought
up the child intending to adopt it..
The case comes forward on appeal from the -order of the District
Director, New .York District, dated March 17, 1965 for the reason
that the beneficiary, an alleged adopted child, does not qualify under
the definition of "child" within the provisions of section 101(b) (1)
(B) of the Immigration and Nationality Act and that satisfactorY
evidence has not been presented that.he was legally adopted. The
notice of denial further sets forth that the evidence establishes the
true son and his wife lived In the same household with his wife and
other son from the time of their marriage until 1938 when the beneficiary, his grandson, was born; after the death of the beneficiary's
father in 1939, the petitioner's daughter-in-law and grandson continued to live in the same household until the death of the petitioner's wife in 1942; thereafter his daughter-in-law, his grandson and
his other son continued to live in the same household until this other
son came to the United States in 1961 and the daughter-in-law And
her son, the beneficiary, are presently living togethef in the same
household. There is no evidence that the petitioner ever contemplated the adoption of his grandson either before his seventh birthday or at any time thereafter.
The visa petition was filed by King Chin, a native born . citizen of
the ;United States, 68 years old, seeking preference quota status on
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Interim Decision *1480
behalf of the beneficiary, a native and citizen of China, 27 years
old, male. The beneficiary is alleged to be the adopted son of the
petitioner.
In support of the visa petition there has been submitted a statutory
declaration executed December 14, 1964 at Hong Kong by Ng Choi
Hang setting forth that she is the blood mother of the beneficiary
who was born on. April 6, 1938 and that his father was Chin Bing
Yu who died on September 5, 1939 when the beneficiary was only 17
months of age. Her husband was the blood son of the petitioner.
The beneficiary is, therefore, the grandson of the petitioner. After
her marriage Ng Choi Hang resided with her husband in the ancestral home of her father-in-law, the petitioner, together with her
mother-in-law, Dong Toy Kee, the petitioner's wife, who died in
1942. Since the death of her husband, the affiant and her son have
been continuously supported by the petitioner and since her hug-
-band's death, the beneficiary, from the time of his father's death
until the death of his grandmother, resided with his grandmother
who was his custodian and acted as his adoptive mother until the
time of her death. From the time of her husband's death her son
has been regarded as the adopted son of his paternal grandparents.
There has also been submitted an affidavit by Gwon Bor Chin, 37
years old, the blood son of the petitioner and the brother of Bing
Yu Chin, the blood father of the beneficiary. The affiant states that
lie is informed, believes and understands that the beneficiary is his
adoptive brdther under the laws of the Republic of China. The date
and basis of such information, belief and understanding is not set
forth. The immigration record of the affiant is not included and it'
is not known whether it is stated therein that the beneficiary was
his brother.
• A sworn statement was taken from the petitioner before an immigration officer on March 3, 1965. He testified he was married on CR
9-12-20 to Dong Toy Kee and that they had two sons: Chin
Bing, born OR 10-9-10 who died in 1941; and Chin Goon Bor, born
CR 16-9-3, now in the United States, having been admitted in February 1961 as the son. of a citizen. The petitioner stated that his
deceased son married Ng Toy Hong about CR 25th or 26th year and
they had one son, Chin Ming Hang, the beneficiary. He testified
that while his son Chin Bing You was alive, he lived together with
his wife and son, Chin Ming Hang, and the petitioner's wife until
she passed away in 1942, and his second son, Chin. Goon Bor. He
learned about the birth of his grandson in CR 27 or 28 and he
learned about the death of his older son about a week after the event.
When asked to explain the circumstances under which his grandson
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Interim Debision #1480
was adopted by his wife, the petitioner stated there was no particular
procedure in adopting his grandson as his son, it is understood that
he is the petitioner's grandson and after his father's death he has
been sending money to support him all of the time; it is different
from- any case of adoption. When asked why it was necessary for
him to adopt the grandson when his mother was still alive and living
in the same household he stated that all that he wanted to do was to
bring him to the United States so that he can take care of him since
he has no father and he does not care whether you call him his
adopted son or anything else. He stated there was no need to go
_through any adoption proceeding since the benefieiary is his true
blood grandson and he wanted to bring biro. to the United States.
When asked whether his wife had ever written to him as to whether
she would adopt the grandson legally or whether he had over -written
his wife in China asking her to adopt his grandson legally he replied
he did not understand the necessity of talking about those things
because there is no doubt that the child is his grandson. The petitioner agreed with the statutory declaration executed by his daughter-in-law that his son probably died on September 5, 1939 as indicated by her and that, his wife died in 1942. The petitioner stated
that since he last returned from .China in 1928 he has kept all
receipts for remittances he-has sent his family in China and the
attorney indicated that this evidence is in the files of the American
Consulate at Hong Song. .
The petitioner has filed an affidavit, which is in essence a brief, as
well as a separate brief filed by counsel. The affidavit sets forth the
conception of Chinese family life in the rural areas of China and
claims that a de facto adoption within the concept of Article 1079 of
the Chinese Civil Coder exists in the present case. In his brief counsel cites a number of cases to show that the trend of administrative
and judicial decisions with regard to "children" is a, liberal one and
that the legislation is remedial in nature, enacted to preserve and
keep together bona fide family relationships, realizing that to do
otherwise would cause undue hardship. He urges that the word
"adopt" be given its ordinary simple dictionary definition.
Article 1079 of the Chinese Civil Code specifies that an adoption
must be effected. in writing, unless the person to be adopted. has been
brought up as a child of the adopter since infancy. Also peitinent
are the provisions of Article 1072 which provide that where a person
adopts a child. of another as his own child, the adopter is called the
adoptive father or adoptive mother and the person adopted is called
adopted son or adopted daughter; Article 1074 which provides that
where a married person adopts a child.; he must do so jointly with
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Interim Decision #1480
his spouse; and Article 1078 which provides that an adopted child
assumes the surname of the adopter. In order to be recognized as an
adoption, it is necessary that the adoptive parents have brought up
the child intending to adopt it. The mere feet of bringing up the
child is not sufficient.'
The term "child" is defined in section 101(b) (1) to mean a legitimate child, a stepchild, a legitimated child, an illegitimate child in
relation to its mother, an adopted child, and an eligible orphan. The
terms are all defined and connote a legal status or relationship and
are words of art as distinguished from words in ordinary usage.
Adoption is a juridical act creating between two persons certain relations, purely civil, of paternity and affiliation? Adoption in
legal contemplation is the act by which the parties thereto establish
the relationship of parent and child between persons- so related
by nature.' Acts of human kindness referable to an undertaking to
rear and educate a helpless child do not prove an agreement to
adopt; nor is loco parentis the equivalent of adoption. 4
The petitioner has the burden of establishing the existence of the
relationship upon which is predicated the benefit he seeks under the
immigration laws on behalf of the beneficiary. The beneficiary in
the instant case is the petitioner's grandson, whose father is the petitioner's deceased son. The beneficiary's mother continued to reside
in the same household together with another son until this other son
came to the United -States in 1961 and the beneficiary and his mother
are presently living together in the same household. The petitioner
in-his sworn statement of March 3, 1965 did not state that his grandson had been adopted by his wife, the beneficiary's grandmother or
that he ever consented to such adoption or that there was ever an
adoption procedure. He stated there was no need to go through an
adoption proceeding because the beneficiary is his true blood grandson and that after his father's death he had been sending money to
support him all the time and- it is different from any case of
adoption.
As far as the evidence establishes, there was never an actual intent
to adopt the child but the grandfather merely contributed to the support of the beneficiary who resided with and at all times was within
the custody of his own mother. The evidence fails to establish an
intent to adopt as distinguished from merely supporting the child.
11f. H. Van Der Valk, An Ontiine of Modern Wanda, Faintly Data (1939),
185 citing Dec. 1933-4828; Thom 1107; Satt-fa-Ifiung-yao
. 'Bouvier's IMO Dictionary (3rd Revision).
B2 Corpus 'aria Elecandurn 367.
'Garcia v. Beene et al., 242 S.W. 2d 230 (CA. Texas, 1951).
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Interim Decision. #1480
It has not been esta a lished that the requirements of the Chinese
Civil Code relating to adoption have been complied with by the production of evidence relating thereto. When the term "child" was
defined as meaning an adopted child, it envisioned a legal status or
concept of adoption which has not been established in this case. The
mere fact that the petitioner may stand in loco parentis to the beneficiary is not the equivalent of adoption. We have examined the
case cited by counsel relating to equitable adoption but do not find it
relevanto Upon consideration of the entire record, we conclude that
the petitioner has not borne the burden of establishing that the beneficiary is his adopted child and, therefore, the beneficiary is not eligible for preference quota status as the adopted son of the petitioner.
• ORDER: It is ordered that the appeal be and the same is hereby
, dismissed.
`Davis v. Celebrezze, 239 F. Supp. 608.
423
