CHAN

                                                    Interim Decision #181a




                              MATTER OF CRAN
                       In Visa Petition Proceedings
                                  A-17106137
                  Decided by Board November 00, 1967
A valid adoption under Article 1073 of the Chinese Civil Code can occur even
 though the adoptive parent is not at least 20 years older than the adopted child:
 since such an adoption is only voidable and not automatically void. Bence,
 where petitioner and beneficiary have lived together since petitioner's adoption of beneficiary in China in 1947 (when the latter was 4 years of age) until
 the petitioner departed for the United States in 1966, the adoption is a valid
 subsisting adoption in the absence of evidence that the adoption relationship•
 has been terminated, notwithstanding petitioner is only approximately 10 yearsolder than the beneficiary. Matter of Soo Hoe, Int. Dec. No. 1461, modified.]


    The case comes forward on appeal from the order of the District
 Director, Portland, Oregon District, dated September 28, 1967 holding that the Chinese law on adoptions contained in the Chinese Civil
 Code of 1930, Article 1073, provides that an adopter must be at least
 20 years older than the person to be adopted; inasmuch as the petitioneris approximately 16 years older than the beneficiary and is unable to
meet this requirement of law, the petitioner has failed to establish
 eligibility for the benefit sought under the immigration laws for thereason that no valid parent-child relationship exists in this ease.
    The petitioner, a native and citizen of China, a lawful permanent
resident of the United States, female, born October 24, 1926, seeks.
preference quota status on behalf of the beneficiary as her adopted son.
The beneficiary is a native and citizen of China, born October 16, 1942..
    The petition is supported by a copy of an adoption agreement between the petitioner and the natural father of the beneficiary which
establishes that the adoption occurred on CR 35-12-14 (January 5,.
1947) when the beneficiary was about four years old. A memorandum:.
in the file dated July 12, 1967 contains details of an interview with
the petitioner and the conclusion that nothing was established duringthe course of the interview that would tend to cast doubt on the veracity -
of the petitioner's claimed relationship to the beneficiary.
   It is noted that the petitioner was approximately 16 years older than:

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 Interim Decision #1810
 the beneficiary at the time of the adoption. The denial of the visa
 petition is predicated upon Article 1073 of the Chinese Civil Code of
 1930 which provides that the adopter must be at least 20 years older
 than the person to be adopted. Although there is no indication in the
decision of the District Director, he may have placed reliance upon the
 headnote in Matter of Soo-Hoo, Int. Dec. 1461 (April 22, 1965) which
states that the beneficiary's adoption in China by the petitioner in 1938
 when the former was 12 years old and the latter was 27 years old does
not constitute a valid adoption in accordance with Article 1073 of the
Chinese Civil Code which provides that the adopter must be at least
20 years older than the person to be adopted.
    Close examination of Matter of Soo-Hoo, discloses that the headnote is erroneous. Matter of Boo Hoo involved an adoption of the bene-
                                      -


 ficiary in 1938 when the beneficiary was 12 years old and the petitioner
 alleged that there had been a written adoption document (which was
required for a valid adoption) which he claimed to have lost. No
details were furnished as to the nature of the written document. The
only corroboration of such an adoption was hearsay evidence by the
 petitioner's husband that his wife wrote him that she had a document
 concerning an adoption signed by the beneficiary's blood mother. The
affiants merely testified to the existence of an adoption relationship
which might have commenced without a writing. No competent secondary evidence was furnished of the existence of a written adoption
 agreement. It was concluded that the petitioner had not borne the
burden of establishing eligibility on behalf of the beneficiary as her
adopted son and that there had not been established a valid adoption
pursuant to Chinese law. Reference in passing was made to the provisions of Article 1073 of the Chinese Civil Code but no comment was
made thereon. The decision would have been the same even if Article
1073 had been complied with, because of the failure of the petitioner
to bear the burden of establishing written proof of adoption as required
under the Chinese Civil Code.
    Inquiry was directed to the Library of Congress regarding the effect
of Article 1078 of the Chinese Civil Code. Information furnished on
November 14, 1967 by Dr. Tao-Tai Hsia, Chief of the Far Eastern Law
Division is as follows:
Article 1078 of the Nationalist Chinese Civil Code states that the adopter must
be at least 20 years older than the person to be adopted. According to the following documents (1) Judicial Yuan interpretation chief& No. 3120, Republic of
China year 35 (1048) and (2) Supreme Court Decision shone No. 886, Republic of
China year 32 (1943), if the adopted child is not 20 years younger than the
adaptor, the adoption is not automatically void. Such adoption is only voidable.
 It may be nullified by the court upon the petition of the person who has the rights
to make such a petition.

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                                              Interim Decision #1810
  Inasmuch as the evidence submitted by the petitioner establishes
a valid adoption, that the petitioner and the beneficiary have been
living together since the adoption in January 1047 until the petitionerdeparted for the United States in August 1966, and there is no indication that the adoption relationship has ever been terminated, it must
be regarded as a valid subsisting adoption. Accordingly the visa petition will be approved.
  ORDER: It is ordered that the visa petition be approved for
preference quota status on behalf of the beneficiary.




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