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Interim Decisions- 4k1433`
MATTER' OF imat
In Visa Petition Proceedings
A-12990543 ,
Decided by Bicard October .19, and December Si, 1964
Petition of an adult naturalized United States citizen, who was adopted in
China during Infancy, is approved to accord her natural mother preference'
quota classification under section 203(a) (2), Immigration and Nationality
Act. as amended, notwithstanding the proviso to section 101(b) (1) (E) of the
Act, since petitioner—who entered this country not as an adopted child but
as the nonquota wife of a C. S. citizen and whose adoptive father is dead
and her adoptive mother, not having been heard from in many years, is
presumed dead—has received no ironligration benefit through her adoptive
status and as qt matter of either law or fact is in no position to clef)/ such
benefit through that status.
BEFORE THE BOARD
Petitioner, a native of China and a naturalized citizen of this
country, seeks second preference quota status for her natural mother.
The District Director has revoked the visa petition which petitioner
filed for that purpose.
A short time after petitioner's birth a family that lived near her
village in China adopted her because her mother was ill. The
Service approved the petition with knowledge of petitioner's adoptive
status. An immigration officer, who interviewed petitioner preliminarily to the revocation of the petition, said that the approval
was erroneous.
The District Director's decision rests upon his conclusion that the
Immigration end Nationality Act provides that the natural parents
of an adopted child shall (by virtue of such parentage) be accorded
no rights, privileges, or status under the Act. We tbinlr his statement inaccurately reflects the statutory provision. Our reasoning
agrees substantially with petitioner's brief in support of her appeal.
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Interim Decision #1433
The pertinent portion of the statute reads :
As used in titles I and II—The term "child" means an unmarried person ender twenty-one years of age who is-
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(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
natural parent of any such adopted child shall thereafter, by virtue of such
parentage, be accorded any right, privilege, or status under this Act
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Manifestly, the inclusion of an adopted child in the definition of the
term "child" seeks to provide some immigration benefit for the child
through\ his relationship to his adoptive parent or parents. The
immediate purpose is to enable an adopted child, who meets the section's conditions and who otherwise could not immigrate because of
quota restrictions, to accompany his adoptive parent or parents to
this country, or to join such parent or parents here. Reading the
section as a whole, instead of considering only the language of subparagraph (E), makes clear the section's intended scope.
In referring to "such adopted child" the proviso obviously means
an adopted.child who under the terms of the section is eligible for—
or has obtained—an immigration benefit. The effect which the District Director gives to the proviso overlooks the significance of the
word. "such." If, as his decision holds, the statute precludes the
natural parent of any adopted child from obtaining by reason of
blood relationship to that child any right, privilege, or status under
the Aot, the proviso should omit the word "such" and read:
Provided,, That no natural parent of any adopted child shall thereafter, by
virtue of each parentage, be steeorded any right, privilege, or etetnR under Me
Act.
Thus, both the section as a whole and the proviso refer to an adopted
child in relation to eligibilty through adoption for some immigration benefit, rather than either adopted children in general, or, •
specifically, children who have been adopted while under the age of
14, have thereafter been in the legal custody of, and resided with,
the adoptive parent or parents for two years or more, but who have
received no immigration benefit thereby.
Petitioner came to this country not as an adopted child but as the
wife of a United. States citizen. She is now 48 years old. Her
counsel says her adoptive father died in China about 1951 and her
'Section 101(b) (1) (E), Immigration and Nationality Act, added by Act of
September ii, 195T, 71 stat. 689, 8 D.S.O. 1101(5) (1) (E).
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Interim .Decision #1483
adoptive mother has not been heard. from in many years and is
presumed dead.
In Matter of B , cited by petitioner's counsel, we held that an
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adopted Child who as a matter of law could not obtain through the
adoption any immigration right, privilege, or status could. confer
second. preference quota status upon _her natural parents' Here,
petitioner did not obtain any immigration right, privilege, or status
through her adoption and as a matter of fact could not now obtain
any immigration benefit from that status. We see no appreciable
difference in the two situations.
We consider the Proviso in subparagraph (E) of the definition
of the term "child" for purposes of titles I and II of the Act is
inapplicable when an adopted child has received no immigration
banpfit from his adoptive status and as a matter of either law or
fact is in no position to claim such benefit. Therefore, we hold that
petitioner's adoption is immaterial here and does not affect 'beneficiary's eligibility for classification as a second preference quota immigrant based upon her alleged blood relationship to petitioner.! We
shall sustain the appeal
ORDER: It is ordered that the District Director's decision revoking the petition to classify status of alien relative for issuance
of immigration visa filed by petitioner for her natural mother_be
reversed and that the petition stand as approved.
=FORE THE BOARD
The Service moves for reconsideration of our order of October 19,
1904, which reversed the District Director's decision revoking approval of the visa petition filed in behalf of petitioner's mother.'
Counsel for the Service contends section 101(b) (1) (E) of the Immigration. and Nationality Act bars approval of the petition. The
District Director took the same , position in his decision. We adhere
to our previous ruling.
The Service's counsel's concern .with the statutory prohibition has
led him into the same error which the District Director committed—
interpreting the statute mechanically and unrealistically. What we
said in our previous order about the scope of section 101(b) (1) (E)'
applies with equal force to this motion. That statutory provision
simply has no applicability here.
'9 L & N. Dec. 46.
'We note, moreover, that this record ialls.to establish that petitioner was
legally adopted under Chinese law.
'The motion seeks - also reopening of the proceedings for the presentation of
farther evidence. We shall consider this aspect later.
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Interim Decision #1433
We believe the following hypothetical situations point up that
inapplicability. In each we assume the factual situation here, as set
forth in our previous order, except that we vary the' facts with
respect to the adoption. We also assunie , that the adoption in each
case is valid under Chinese law and that the adoptive parents are
deceased.
Case A. Petitioner was adopted when over the age of 14 years.'
Case B. Petitioner was adopted when under the age of 14 years but following the adoption resided with them for less than two years.
Case C. Petitioner, as here, was adopted when under the age of 14 years
and following the adoption was in the legal onatody a the adopting parents,
and resided with them for two years or more.
Apparently, the Service would approve petitions for petitioner's
natural mother in Cases A and B but deny such a petition in Case C.
In the circumstances we have assumed, however, we discern no special
magic in the fact that the situation in Case 0 happens to fit the
language which immediately precedes the proviso in section
101(b) (1) (B). That language was not designed for the situations
we envisage. It limits the situations in which an adopted child may
benefit under the immigration laws through, its relationship to its
adoptive parents. Congress particularized the adopted child who
might so benefit in order to forestall use of the provision simply as a
means of evading other provisions of the law. Thus, the language
which precedes the proviso loses its force when considered out of the
context of the adoptive relationship In our situations, that language has never been applied—and could not be applied—to accord
any status under the immigration laws. Therefore, the language
should have no more significance in one of the situations than in the
others.
In the proviso, Congress particularized the natural parent in the
same manner. The proviso does not preclude a petition by any
adopted. person for a natural parent. It precludes such a petition
only if the petitioner has obtained a benefit under the immigration
laws, or may obtain some benefit under those laws, by reason of his
adopted status. Such person must, of course, qualify under the
language preceding the proviso in order to be eligible for the benefit
We. consider, however, the language of the proviso also loses its
force where the adopted person, even though mechanically qualifying undert the definition, has never used, and never could use, his
qualifications for immigration purposes. Thus, looking at the statutory provision as a whole, petitioner's adoption under circumstances
Essentially, this was the situation in Matter of B—, 9 1. & N. Dee. 46.
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Interim Decision #1433
which meet the statutory requirements in the definition of an adopted
child is immaterial for the purposes here considered.
In addition to applying section 101(b) (1) (B), erroneously, the
Service's motion misconstrues the effect of our decision.' -We -believe
the Service's difficulty arises primarily -from misstatement of the
issue. The motion states the issue to be whether' a child, whO in all
respects comes within the definition of an adopted child in the immigration and Nationality Act, can have a visa petition approved for
her natural pare& on the ground that the child had not gaineda
benefit tinder the immigration laws by reason of the adoption. As
we have seen, petitioner "4:100a not "in all respects" come within the
definition of an adopted child in the Immigration and Nationality
Act. Actually she does not come within' itat all.
Assuming that petitioner was legally adopted, the circumstances of
her adoption merely coincide mechanically with the conditions imposed by the definition. Moreover, the criterion heh is not that the
adopted person has not at the time of petitioning already obtained
a benefit under the immigration laws. Our decision contemplates
that petitioner not only has not gained a benefit under the immigration laws through her adoption but could not 'now or ever obtain
such a benefit. Both conditions must be present.
We believe the foregoing statement disposes of the .Serrici's con-
'tendon that our holding permits an adopted child to haie greater
rights than a natural child in that the adopted child could petition
for two sets of parents and two sets of brothers and sisters. We need
not discuss the Service's suggestion that petitioner might be considered to make an election in favor of tho natural paront although
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the motion urges that an adopted person shonld not have an election.
There is no election-here. Beneficiary is the only mother 'petitioner
now has. The possibility that petitioner might someday be in a position to petition for her adoptive mother is so remote that it can. have
no part in any realistic aPpraisal Of the situation.
The motion suggests that our original decision should have been
based upon the failure of the record to show petitioner has been
legally adopted under Chinese law and urges that we remand the
case for further evidence on this point." The petition was initially
approved on October 15,1962. .Beneficiary is now Over 74 years old:
Although we noted in our original decision:that the record did not
properly develop petitioner's adoptive status, we were not disposed to
remand the ease to Overcome deficiencies we considered to be immaterial. If anything, we are less disposed to do so now.
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Interim Decision #1433
Finally, the Service declares that our order of October 19, 1964
departs from our other decisions relating to section 101(b) (1) (E).
The motion attaches significance to our resting our decision in Matter
of B — upon the age of the child at the tirao of adoption rather than
the child's nonacquisition of any benefits wider the immigration laws
through the adoption.3 We see no such significance. The situation
merely presented an obvious basis for decision apart from any question of benefits arising from the adoption. Moreover, the case was
before us on certification to consider the District Director's decision
approving the petition. Apparently, the District Director reached
his decision because of petitioner's age when adopted.
The motion also cites Matter of Martinelli, unpublished.* There,
we first approved a petition by, a mother for her natural daughter,
who had been adopted in Italy at the age of 17.. We noted that beneficiary was over 14 years of age when adopted but preferred to rest
our decision upon the failure of any immigration status or benefit to
result from the adoption. The Service moved for reconsideration of
our order. On reconsideration we found to be appropriate adoption
of the doctrine of Matter of B , which hid been decided subsequent
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to our original order in Martinelli and just a few days before the
Service's motion. Therefore, we concluded that the petition should
be approved on the basis of petitioner's daughter's age at the time of
adoption. Our final action in Martinelli, did not necessarily repudiate the previous basis for our decision. As in Matter of B—, we
simply used another, and perhaps then more convenient, basis for
decision.
In the present motion, counsel for the Service attributes to Matter
of the rule- that the determining factor is whether the child
comes within the statutory definition of an adopted child. Although
we do not find this specific language in either B— or Martinelli, we
believe it may be a fair -statement of the rule, but only if properly
understood. For example, as we have emphasized, we consider petitioner here does not "come within" the statutory definition' of an
adopted child.
In Matter of K—, discussed also in the Service's motion, we held
that, because of the provisions of section 101(b) (1) (E), in adoption
at the age of two years precluded the -natural parent of the adopted
child from asserting any right, privilege or status with respect to the
child." The natural mother, a permanent resident of this country,
*Supra°.
4 A 11490302. decided October 19, 1960.
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. L 8; N. Dee. 116.
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Interim Decision #1438
had Bled. the -visa petition. The 'opinion is brief and contains no
facts about the adoptive paients. Ncithini indicates whether we considered the possibility of 'disregarding the adoption on any basis.
Some of the language in the opinion is quite broad and must be read
in the light of our statements in other matters involving the definition of an. adopted child for immigration purposes—including our
opinion here. We do not consider Matter of K to be inconsistent
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with our present holding. The circumstances in which that opinion
was rendered do not sufficiently appear to determine -whether there is
any conflict.
Matter of 8 , in which petitioner had been adopted at 18 years of
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age and was petitioning for his natural parents, must also be read in
the light Of our ruling here" The statement from Matter of 8-
quoted in the Service's motion—to tho effect that the adoption
changed, for immigration purposes, petitioner's preadoption relationship to his natural parents applies in many, if not most situations,
but not in all.
None of the decisions which we have discussed squarely meet the
question of the applicability of section 101(b) (1) (E) where the
adoptive parents are deceased, or presumed deceased. In Matter of
B the adoptive parents, who were petitioner's aunt and uncle were
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living in Arizona. Martinelli's adoptive parents—again an aunt and
uncle—were living in Italy. Matter of K does not reveal whether
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the adoptive parents were alive or dead. The adoptive parents in
Matter of 8 were living in New York City.
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Although we answered the Service's motion when we pointed out
the inapplicability here of the statutory definition of an adopted
child, we have dismissed it at some length in an attempt to (Nun/Tome
much apparent confusion concerning the effect of the definition.
Upon cursory reading, the provision appears to support the Service's
position. The District Director—as well, apparently, as the consular
officer .who returned the approved petition to the Service for consideration under the definition—labored under the same misapprehension as the Service's counsel here. We have not previously had
occasion to consider the precise situation now before us. As a result,
some of the language of our prior opinions has not served to dispel
confusion of thought in this area.
We affirm nur order of October 19, 1964. Matter of B , supra,
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laid down the rule that an adopted child who could not benefit by the
adoption under the immigration laws because not within the definition of an adopted child under section 101(b) (1) (E) was not dis-
& N. Dec. 58Y.
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Interim Decision #1433 '
qualified by the proviso to that sub-section from receiving the benefit
from his natural parents. Our present decision holds that the prohibition contained in the proviso also has no application where an
adopted child has received no benefit under the immigration laws
through the adoptive parent or parents and cannot in the future
receive such a benefit, as in the instant case where the adoptive parents are dead (the death of one is proved; the death of the other is
presumed). Hence, there is no reason for not approving the petition
for the natural mother of the petitioner. We deny the motion.
ORDER: It is ordered that the Service's motion be, and hereby is,
denied.
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11 I. & N. Dec. 55
LUM
Decided July 1, 1964
Board of Immigration Appeals · decided 1964-07-01
Cited by 1 later decisions — most recently July 1969
Key passage — most relied on by later courts
“a child adopted while under the age of 14 years if the child has thereafter been in the legal custody of, and has resided with the adoptive parent or parents for at least two years: Provided, that no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.”
quoted by 1 later decision, including KIRBY
Good law ✅— No negative treatment on recordhow we know
Decided 1964-07-01
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