TALBOT-PHIBBS

                                                 Interim Decision *1521




                        314Truu or TALBOT-P=188
                       In Deportation Proceedings ,
                                                       A-142967
                  Da    ed by Board November 5, 1965
 An alien, who, shortly after birth in 1948 in South Africa, was adopted in
   that country within the meaning of section .101(b) (1) (B), Immigration
   and Nationality Act, as amended, by nonresidents thereof, with whom she
   resided until she Ives 18 years of age, may, puieuant to and :within the
   meaning of section 202(a) (4) of the Act, be charged to the gnota of Great
   Britain, to which her adoptive father Is chargeable, for the purpose of
   adjustment of status wider section 245 of the Act.
 CHARGE:
 ' Order: Act of 1952—Section 241(a) (2) [8 [Lail 1251(a) (2)]—Nonimmi-•
                     ,  grant, remained longer.


   An order entered by the special inquiry officer on April 23,•965
 grants the respondent's' application for status as a permanent' resident alien under the protisions of section_ 245 of the Immigration
 and Nationality Act, as amended (8 U.S.O. 1255). , The deportation
 proceeding was .terminated and the Immigration Service took, no
 appeal. The Immigration Service on June 15, 1965 moved for a
reconsideration•of the special inquiry officer's order granting 'relief
under section 245 (supra). The special inquiry officer -in sn•order
• entered on August 4, 1965 affirmed his prior order of Apr11.23, 1965
 and certified the case to the Board of Immigration Appeals for
 final decision on a matter of law.
   The respondent is a native of South Africa and a citizen of 'Great
 Britain. She last entered the United States through the port of
 Honolulu, Hawaii, on or about February 5, 1964. She was admitted
 as a visitor for pleasure authorized to remain in the United States
 until August 4, 1964. Thereafter, the time for her departure was
 extended. to October 14, 1964. She has remained in 'the' United
 States subsequent to October 14, 1964 without permission And she
 concedes that she is,deportable as charged in the order to sho4. cause.
   The respondent -applied for status as a 'permanent resident alien
under section 245 of the Immigration and Nationality Act; . ns

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Interim Decision #1521
amended. She was born on July 28, 1948 at Cape Town, South
Africa, awl. shortly after her birth she was adopted by James Owen
Talbot-Phibbs, a native of Ireland, and his wife, Nancy Jean Talbot-Phibbs, a native of Australia. Her adoptive parents were in Northern Rhodesia on assignment by the British Government Colonial
Service at the time of her adoption. The respondent testified that
she was adopted when about three weeks of age and that she resided
with her parents until she was 18 years of age. Immediately after
her adoption she was taken to Northern Rhodesia by her adoptive
parents where they remained until 1952. Documentary evidence submitted by the respondent supports her testimony with regard to her
birth in South Africa and her adoption by the Talbot-Phibbs family.
 - By virtue of her adoption -while under the age of 14 years the
respondent Claims that she is chargeable to the British quota since
her adoptive father is a. British subject. The record establishes that
the respondent was inspected and admitted at the time of her entry
on February 5, 1964. She has been examined by an officer of the
• United States Public Health Service and found to be medically
admissible to the United States. She testified that she has never
been arrested or convicted of any-violation of law. An immigration
visa is immediately available to her provided she is chargeable to
the quota for Great Britain which is presently open in all categories.
  The issue of law before us concerns an interpretation of section
202(a) (4) 'of the Immigration and Nationality Act (8 U.S.C. 1152
(a) (4) ) 1 which provides in substance that an alien born in a...eountry
in which neither of his parenti was :born or was a resident at the
time of such alien's birth may be charged to the quota area of either
parent.   The special inquiry officer finds that under the provisions
of sections 101(b) (1) (E) 2 and 101(b) (2) of the Immigration and

  'Section 202(a) (4) of the -immigration and Nationality Act reads as follows: ".. . For the purposes of this Act, the annual quota to which an
immigrant is chargeable shall be determined by birth within a quota area,
except that—(4) an alien born within any quota area in which neither of
his parents was born and in which neither of his parents had a residence
at the time of such alien's birth may be charged to the quota area of either
parent; ..."
  'The Act of September 11, 1957 (71 Stat 639) added subdivision (E) to
section 101(b) (1). It reads as follows: "As used in titles I and II—
(1) Who term "child" means an unmarried person under twenty -one yearn of o
age who is—(E) a child adopted while under the age of fourteen years if
the child has thereafter been in the legal custody of, and has resided with,
the adopting parent or parents for at least two years: Provided, That no
natoral parent of any each adopted child shall thereafter, by virtue of aneh
pazikntage, be accorded any right, privilege, or status under this Act.

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                                                    Interim Decision #152/ '
Nationality Act' the respondent and her adoptive father James
Owen Ta}bot-Phibbs, a British subject, may be considered to have
the relationship of parent and child to each other and. therefore may
be charged to the quota of Greet Britain pursuant to and within the
meaning of section 202(a) (4) of the Immigration:and, Nationality
Act (supra).
   It is the Service position that section 202(a) (4) is not brad
enough to encompass an adopted child and its benefits must be limited to a legitimate child of natural parents. It is urged that to
encompass an adopted child such as the respondent, section 202 (a)
(4) would have to be oonstrued as though it read "in which neither
of his parents had a. residence at the time of such alien's birth or
adoption." (Emphasis supplied:) The Service maintains that the
regulations of the Department of State* which implement section
202(a) (4) support this position.
   The amendment of section 101(b) of the Act of September 11,
1957 is remedial legislation and should be liberally construed. The
term "parent" is defined in relation to the term "child" in section
101(b) (1) and (2) of the Immigration and Nationality Act. The
significant word in the definition of "parent" is "relationship" and
this is found' in a phrase which reads "where the relationship exists
by reason of any of the circumstances set forth in (1) above." (Em- •
phasis supplied.) The word "circumstances" found in the above
quoted phrase relates to the categories of relationship set forth in
section 101(b) (1) (supra). The categories of relationship were
expanded by the Act of September 11, 1957 to include "an illegitimate child" for whom benefits are sought by virtde of a relationship
  • Section 101(b) (2) was not amended by the Art tit Reideroher 11, 1557_
 It reads as follows: As used in titles I and II—(2) The terms "parent",
"father", or "Mother" mean a parent, father, or mother only where the relittionship exists by reason of any of the circumstances set forth in (1) above.
   '22 CPR 42.54 (revised January 10, 1988, 28 red. Reg. 275) read as follows: •
Exception for alien born. in quota area of which neither of his parents was      a
resident. An alien who is not a Chinese person and who is not otherffise
attributable by as much as one-half of his ancestry to a people or peoples
indigenous to the Asia-Pacific triangle, who was born in a quota area in which
neither of his parents was born and in which neither of his parents had a
residence at the time of his birth, may be charged to the quota of either
parent as provided in section 202(a) (4) of the Act. Thb parents of such an
alien shall not be considered as having acquired a residence within the meaning of section 202(a) (4), if at tea time of such alien's birth. within tlia quota
area they were merely visiting temporarily or were stationed there under
orders or instructions of an employer, principal or superior authority foreign
to such quota area in connection with the business or profession of the era- -
player; principal or superior authority (Emphasis supplied.) (Sec_ 262, 66
Stet. 177: 8 U.S.C. 1152).

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 Interim Decision #1521
 to its mother and a "child adopted while under the age of fourteen
 yiars” provided the child has been in the legal custody of and has
 resided with the adopting parents for at least two years.
   The Department of State followed this interpretation of section
 101(b) (1) and (2) in a case involving an illiterate mother of a 29-
year-old United States citizen. It was held that the mother was a
"parent" and entitled to the exemption from illiteracy provided by
section 212(b) on the ground that the language used in section 101.
 (b) (2) which reads "oirownstanoes set forth in (1) above" refers to
circumstances leading to a child-parent relationship as specified
under subparagraphs (A), (B), (C), (D), (E) ; namely, a legitimate birth, a stepchild relationship, a legitimated child, an illegitimate child. in relationship to its mother, or an adopted child. The
State Department held that the phrase "unmarried person under
twenty - one years of age" did not limit a child -parent relationship
Where the relationship is the determining factor for the accrual of
benefits to the alien. Under this view the word "circumstances"
relates to '"a child adopted while under the age of fourteen years"
provided the child has been in the legal custody of and has resided
with the adopting parents for at least two years.. We find nothing
in either section 202(a) (4) or section 101(b) which distinguishes the
respondent's case from that of the illiterate mother who was given
an exemption under section 212(b) of the Immigration and_Nationality Act.
   The language of the statute is clear. Section 202(a) (4) is found
in Title II of the Immigration and Nationality Act. Section 101(b)
specifically states in its preamble that "The term 'child' . . . as used
in titles I and II (of the Act) mean . . ." a child adopted under
the circumstances which prevail in respondent's case. • We find no
basis for the trial attorney's suggestion that the wording of section
202(a) (4) of the Act should be construed as though it read "in
which neither of his parents had a residence at the time of such
alien's birth or adpotion." (Emphasis, supplied.)
  We. find the respondent chargeable to the British quota and will
affirm the decision and order of the special inquiry officer granting
her application for status as a perminent resident alien and terminating this proceeding.
    ORDER: The order entered by the special inquiry officer on
 August 4, 1965 granting the alien's application for status as a permanent resident alien under section 245 of the Immigration and
 Nationality Act, as amended, and terminating this proceeding is
'hereby affirmed.


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