RUSSELL

Interim Decision #1504




                        MATTER or RUSSELL,       et a2.

                      In Visa Petition Proceedings
                              A-13168161-2-3
    Decided by Deputy Associate Commissioner-September 7, 1965
Petition to   accord beneficiaries nonquota status as eligible orphans, as defined in section 101(b) (1) (F), Immigration and Nationality Act, as
• amended, is denied since the petitioner and his spouse, on the basis of the
   results of the guidance, supervision and. care accorded their 16-year-old
   daughter, who was a disciplinary problem at the Navy Dependents' School
   in the Philippines, have not established pursuant to section 203(b) of the
   Act, that they will properly care for the beneficiaries if they are admitted
   to the United States.


   These cases have been certified to the Deputy Associate Commissioner, Travel Control.
   The petitions were denied by the District Director, Manila, Philippine Islands, on June 21, 1965, on the ground that it has not been
Satisfactorily established that the petitioner and spouse will properly
care for the children if they are admitted to the United States (section 205(b) of the'Immigration and Nationality Act).
   The petitioner and his spouse, citizens of the United States, were
married on August 22, 1962. No children were born of this union
but the daughter, Karen, born in Los Angeleq, California, on May 12,
1949, the issue of a legally terminated marriage of the petitioner's
spouse, is said,to have been adopted by the petitioner. The Director
of the American Red Cross Unit at the United States Naval Base at
Subic Bay, Philippine Islands, acting as a representative of the International Social Service, has submitted a favorable home study
report. The California State. Department of Public Welfare at Los
Angeles has certified that the preadoption requirements of that State
have been met. Overseas investigation of the mental and physical
health of the beneficiaries reveals no illnesses. or defects aside from
an exposure of two of them to tuberculosis suffered by their natural
mother which has not been shoivn to have 'developed so far in the"
children.
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  The beneficiaries, two half-sisters and a half-brother, were born
respectively at Angeles, Pampanga, Philippine Islands, on October
28, 1958, December 6, 1962, and February 12, 1960, out of wedlock to
Victoria C. Bucao, a native and citizen of the Philippines, as a
result of relationships with three different members of the United
States Armed Forces stationed there. They were released to the
petitioner and his spouse for adoption and emigration by the natural
mother who, it has been established, is unable to care for and support them. The petitioner and .his spouse have presented a final
adoption decree relating to all three beneficiaries, issued March 30,
1965, by the Municipal Court of San Felipe, Province of Zambales,
Philippine Islands. The court is some distance removed from the
station of the petitioners and hometown of the beneficiaries.
  Article 335 of the Civil Code of the Philippines sets forth:
  Art. 335. The following cannot adopt:
  (1) Those who have legitimate, legitimated, acknowledged natural children,
or natural children by legal fiction; • • •
  (4) Non-resident aliens.

 The decree recites the petitioners to be residents of the Province of
 Zambales, Philippine Islailds, and to have no children. The District
 Director has pointed out that the petitioner and his spouse were
admitted to the Philippines in December 1962 pursuant to military
 orders of the United States Navy in which organization the petitioner has been enlisted since 1954. It was noted that the petitioner
 and spouse occupied United States Government quarters on the
 United States Naval Base at Subic Bay and under agreements of
long standing with the Government of the Philippines are accorded
certain tax exemptions and free of duty importation privileges not
ordinarily granted to residents of that country. Nor were members
of the United States Armed Forces subject to the criminal jurisdiction of Philippine courts at the time of the adoption. This has lead
to the conclusion on the parb'Npf the•District Director that the petitioner and his spouse are "non-resident' aliens", for the purpose of
Article 335 cited above. However, the record is silent as to whether
members of United States Armed Forces 'nay for adoption purposes
be con§idered by the courts of that country under any circumstances
as eligible.
  The- District Director also notes that the petitioner: and spouse
are the parents of the sixteen-year-Old child, Karen. The petitioners
have related that because of the imminence of their departure for
the United States on military orders, and because their attorney was
a friend of the judge, the decree -was issued and any apparent irregularities therein could have been the result of language difficulties

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. between themselves, their attorney, and the court. There is not contained in the record the petition of March 3, 1965, apparently presented to the court which resulted in the adoption decree of March
   30, 1965. Nor is it shown in the record if the daughter of his spouse
   has actually been adopted by the petitioner and whether such adoption, or lack of it, if before the court, could have come within an
   exception to Article 335 cited above. - Therefore, without further
   inquiry, it cannot be concluded that the decree of the court is or
   is not on all fours with the statute.
     .The petitioner and spouse, having been informed by the District
   director of possible invalidity of the Philippine adoption decree, are
   presently considering adoption •of the children in California. As
   heretofore stated, the California authorities have certified that they
   meet the preadoption requirements of that State.
      The spouse of the petitioner was revealed to have been arrested on
   April 11, 1960, by the Los Angeles, California, • police and charged
   with "assault with a deadly weapon". On May 13, 1960, she was convicted in the Los Angeles Municipal Couit on the reduced charge
   of "battery", and sentenced to thirty days in the city jail, suspended,
• placed on probation for one year, fined $26.25, and ordered to make
   restitution. The charges appear to have" come about following an
• altercation late one night with a person thought by her to be responsible for impounding her 'automobile and in which she struck the
  complainant about the head and wrist with her high-heeled shoe.
     United States Naval authoikies in the Philippines have reported
  that the sixteen year old daughter of the petitioner and his spouse
                  -    -


  was a disciplinary problem at the Navy Dependents' School, broke
  curfew, was foUnd by Naval police in company with adult members
  of the Marine Corps' in bars and night clubs, and required medical
  treatment at the Naval Hospital from January 20-24 and October
  22, 1964, because of her social behavior. It can be fairly concluded
  that this child did notIreceive the degree of parental supervision
  customarily to be expected. There is nothing on which to bask a
  belief that more could ok would be extended to the three beneficiaries
  in spite of assurances by the petitioner and his spouse that Karen is
  now a much. wiser, socially adjusted teen-ager.
     The Diltrict Director also noted that the affidavit of support executed April 19, 1965, by the petitioner set forth that he owned a \
  house unencumbered by mortgage. It was subsequently ascertained
  that the house is mortgaged. The petitioner urges only that "as for
  my real estate statement, there was a inisinterpertation (sic) of the
  fact." However, an examination of the affidavit in question makes
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it apparent that he could well have innocently not correctly interpreted the questions involved.
   Section 205 (b) of the Immigration and Nationality Act provides
in part as follows:
  ... No petition for nonquota immigrant status in behalf of a child as defined
In section 101(b)(1) (F) shall be approved by the Attorney General unless
the petitioner establishes to the satisfaction of the Attorney General that the
petitioner and spouse will care for such child properly if he is admitted to
the United States ...
  The desired adoption by the petitioner and his spouse and the
bringing of these waifs into their home in the United States is indeed
a praiseworthy intention. On the basis of the record presented here,
the petitioner and his spouse do have the best intentions for these
children. However, on. the evidence of the results of the guidance,
supervision and care of their teen-age child by the petitioner and
his spouse, it has not been established that the petitioner and his
spouse will properly care for the children. if they are admitted to
the United States. Therefore, the decision of the District Director
that the petitions be denied on that ground is affirmed.
  ORDER: It is ordered that the decision of the District Director
be affirmed.




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