LEE

                                                 Interim Decision *1673"




                             MATTER OF LEE

                     In Visa Petition Proceedings
                               A-14710087
                 Decided by Board December 9, 1966

The existence of a bona fide family unit alone is insufficient to satisfy the
 statutory requirements for adoption in accordance with section 101(b) (1)
  (E) of the Immigration. and Nationality Act, as amended; nor does an
 actual residence of the adoptive child with the adoptive parent for about
 1 year and 9 months satisfy the two years' residence requirement for an
 adoption in conformity with that section. •


   The case comes forward on appeal from the decision of the District Director, Los Angeles District, dated September 19, 1966 denying the visa petition for the reason that the petitioner has failed to
establish that the required relationship of parent and child exists
between her and the :beneficiary.
  The petitioner, a native of China, a, citizen of the United States
by naturalization on August .19, 1964, 54 years old, female, seeks
immediate relative status on behalf of the beneficiary as her adopted
son. The beneficiary was born April 1947 in Ying Ping, Kwang
Tung, China and is stated to be divorced. .
  A sworn statement was taken from the petitioner on August 24, ,
1966. She testified the beneficiary was adopted by her in Tong On .
Lay village, Tong Foo Tang Heung, run Ping, K.T., China on
April 22,194'T (C11-86-3-2) when he was only a few weeks old. He ,
resided with her until September 10, 1948 when she left her village
to live in Hong Kong. Thereafter, the beneficiary resided with the
petitioner's mother in her native village from September 10, 1948
until January 9, 1966. The petitioner visited her mother and the
beneficiary three or four times during the period September 10, 1948
to January 20, 1949 while she lived in Hong Kong. She departed
from China en route to the United States on January 20, 1949 and
arrived on the SS "President Wilson" at San Francisco, California'
on March 21 or March 28, 1949. She last saw the beneficiary for 11.
or 12 days in January 1966 when she -visited Hong Kong.
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 Interim-Decision• #1678
     Summarizing the testimony of the petitioner, the beneficiary was
   adOpted when a few weeks old on April 22, 1947, resided with her
   in the native village until September 10, 1948 when she left for
   Hong Kong; she saw the beneficiary on three or four occasions until
   her departure to the United States on January 20, 1949. Granting
   the most favorable computation of the period of residence of the •
   paidnt with the adopted child as existing between April 22, 1947
  until January 20, 1949, when the petitioner departed to the United
   States, the total period of residence is approximately one year and
  nine months. -
     Originally as enacted, section 101 (b)(1) of the Immigration and
  Nationality Act included in the term "child" (A) a legitimate child,
   (B) a stepchild and (C) a legitimated child. Subsection (B) of
  section 101(b) (1)" of the Immigration and Nationality Act was
  added by the Act of September 11, 1957 (71 Stet. 639) to 'include
  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
  adopting parent or parents for at least two years. The amendment
  was designated to prevent hardship in cases where the child was
  chargeable to a heavily oversubscribed quota and would not other-
. wise be able to accompany his adoptive parents. Adequate safe-guardd
 were included in the legislation to prevent abuse. Senate Report No.
  1057 (85th Congress, 1st, Session) 4. The legislative history fails
 to spell out what specific abuse was sought to be prevented. How-.
 ever, an administrative sponsored predecessor bill, S. 10006, was the
 subject of an analysis by the Attorney General before the Subcom  -•


 raittee on Immigration• of 'the Senate Judicial Committee on. July
 30, 1957. It was pointed out that the administration bill would extend the definition of "child" tn. include adopted children -under
           eiraum8tam,ces; that it was desirable that eonsideratiOn be
'given to an amendment 'whereby a child, adopted while under the age
 of 12 years and who had lived with his adoptive parents for at least
 two years prior to the visa application might be considered a "child"
 under the immigration laws. It was pointed out that a proposal of
 this type would prevent ablie through ad hoc adoptions made only
 for the purpose of circumventing the immigration laws.
    The amendatory legislation of the Act of September 11, 1957,
 which extended the meaning of the term child to include an adopted
 child (and also an illegitimate child through its natural mother)
 was designed as remedial legislation to ameliorate the harshness and
in-equity of certain situations -where there existed bona Me larailY
units. Safeguards were written into the 'law to prevent abuses -such
as adoptions entered into for the purpose of evading the immigration
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                                                Interim Decision #1673
. laws; and the amendatory legislation require that the child be adopted while under the age of 14 years and to have been in the legal
 custody of and have resided with the adopting parent or parents
 for at least two years. This latter requirement of residence with the
 adopting parent or parents for at least two years does not exclude
 computation of residence occurring prior to the formal adoption
 decree.I The two year legal custody and residence requirement imposed upon an adopted child under the 1957 amendment to section
 101(b) (1) of the Act is satisfied when custody and residence have
 been with only one of the adopting parents, who may be the noncitizen parent, rather than with both.z
    Thus, while the legal custody and residence requirements of section 101(b) (1) (E) have been liberally interpreted in'recognition of
the fact that the amendment constitutes remedial legislation, certain
requirements are still retained. Thus, the child. must. be adopted
under the age of 14 years to constitute a valid adoption under the
immigration laws. The statute requires two years' legal custody
subsequent to the adoption. The two-year residence requirement is
one of the conditions of a valid immigration adoption, and :while we
have interpreted. this requirement to includeld who resided
with the adopting parents for the two-year period prior to the formal adoption, and also with but one of the adopting parents, the
statutory requirement of two years' residence is a mandatory part
of section 101(b) (1) (E) of the Act.
  In the instant case, under the moat generous computation,. the
 adoptive child resided with the adoptive parent for about one year
 and nine .months. The term "residence" is defined in section 101(a)
 (33)to mean the principal actual dwelling place in fact,. without
regard to intent. The period of residence here does not satisfy the
requirement of two years' residence with the adoptive parent. We
take notice of the brief filed: by counsel. However, we hold that the
bona fide family unit is not the only requirement of section 101(b)
 (1) of the Immigration and Nationality Act but there must be an
adoption in conformity with the requirements of section 101(b) (1)
 (E). The two-year residence requirement has ,not been met in the
instant case. The appeal will be dismissed. •
   ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
        •



 1  Matter of lf , 8 L ScN.Dee.:118 (A.G., 1959)..
             —

   'Matter of. Y-1C—Ti--,.9 & N. Dee: 176 (AA,' 1961), overruling Matter
of              8 L & 'N. Dee. 151: Ng Pun Yin v. Reperdy, 187'r. Sapp. 51
(S.D. N.Y. 1960). •                                    '


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