Interim Decision *1846
MAI lac or BOGIIDADI
In Visa Petition Proceedings
A-13191300
Decided by Board March 27,1968
Visa petition to accord beneficiary preference classification under section 203 (a )
(5) of the Inuaigration and Nationality Act, as amended, an the brother of the
U.S. citizen petitioner, on the basis of his alleged adoption by petitioner's father
at the time of the latter's marriage to beneficiary's mother in Egypt in 1942,
is denied for lack of a valid adoption since religious law applied to personal
status matters in Egypt and adoption Wan recognized neither under Egyptian
(Islamic) law nor under Rabbinical (3ticlide) law.
ON BEHALF or PEI:MOWER : ON BEHALP OF Sravloz :
Laurence IL Pearson, Esquire I. A. Vielbaber
1501 Broadway, Slate 1904 Appellate Trial Attorney
New York, New York 10030
(Brief filed)
The case comes forward on appeal from the order of the District
Director, New York District, dated October 3, 196'T denying the visa
petition for the reason that the petitioner is not related by blood to
the beneficiary, each having been born of different parents; and that
the petitioner has failed to submit any documentary evidence to substantiate the claim that the beneficiary- was legally adopted under the
laws of his place of birth and/or his alleged stepfather's domicile; the
beneficiary does not meet the definition of a "child," as set forth in
section 101(b) (1) (D) (sic) of the Immigration and Nationality Act
and therefore cannot qualify as a "brother" of the petitioner. The conclusion that the visa petition should be denied is correct, however, we
do not necessarily adopt the basic set forth by the District Director for
such denial.
The petitioner, David Ganunal, was born in Alexandria, Egypt on
March 15, 1923 to Maatouk Gemmel and his wife, Semha. He became
a naturalized citizen of the United States on January 22, 1952. The
petitioner's mother, Semha, died on May 2, 1942 in Cairo, Egypt. The
beneficiary, born June 10, 1936 in Alexandria, Egypt, is the legitimate
child of Mayer and Esther Boghdadi. The beneficiary's parents were
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Interim Decision 4*1846
divorced on December 5, 1939 and Maatouk Gamma], the petitioner's
father, and Esther Boghdadi, the beneficiary's mother, were married
in Cairo, Egypt on August 20, 1942. All the parties named herein are
of the Jewish faith. Evidence of the marriage and divorce of Esther
and the subsequent marriage of Maatouk and Esther on August 20,
1942 are supported by documents from the Grand Rabbinate of the
Jewish community in Cairo and Alexandria, Egypt.
It is claimed that the beneficiary is the adopted brother of the petitioner by virtue of the fact that prior to the marriage of Maatouk and
Esther a marriage contract was signed which provided for the adoption of the beneficiary, the-bride's son by her first marriage, by Maatouk. No evidence is obtainable regarding such a marriage contract, nor
is such an adoption mentioned in the marriage certificate of Maatouk
and Esther. Affidavits have been submitted by sons and daughters of
the first marriage of Maatouk attesting to the fact that their father
married Esther, he also adopted the beneficiary, and that the beneficiary grew up with his family and was treated by Maatouk as a son
equal to his natural children. The birth certificate of the beneficiary
cannot be located.
Section 101(4(1) (E) of the Immigration and Nationality Act, as
amended, defines the term "child" to include a child adopted while under the age of 14 years. In Matter of Fong, 10 I. & N. Dec. 497, we
held. -that an 'adopted brother was eligible for preference quota status
if he qualified as an adopted child; that there was no distinction between an adopted child or adopted brother and sister, and ,between a
natural child or brother and sister provided that the child met the
requirements of section 101(b) (1) (E) of the Immigration and Nationality Act and that there existed a law under which an adoptive
status could be created.
The instant case was submitted to the Library of Congress for information whether under the circumstances outlined above, there occurred a legal adoption either under Egyptian law or under Rabbinical or Judaic law. The memorandum from the Library of Congress is
attached and made a part hereof. Egypt, like most Middle Eastern
countries, still follows the traditional system of applying religious law
to personal status matters. Until January 1, 1956 Muslim, Christian,
and Jewish communities in Egypt maintained their . own religious
courts. Law No. 462, which became effective on January 1, 1956,
abolished the religious courts and transferred their jurisdiction to the
secular courts. In a dispute between two members of a non-Muslim
community which cannot be settled according to the principles of
their religious law, the principles of Islamic law will lie applied in
rendering judgment. •
821-654-69--14 667
Interim Decision #1846
A thorough search of the Rabbinical law concerning adoption reveals that no legal principles exist under Rabbinical law for the institution of adoption. The Jewish community in Egypt prior to Law
No. 462 of January 1, 1956 would have had to refer all adoption matters to secular courts, which would apply the principles of Islamic
law. However, in studying the principles of Islamic law, it is found
that adoption also is nut recognized by Islamic law and that no claim
of adoption can establish rights or obligations.
Since the memorandum from the Library of Congress is to the effect
that the concept of adoption was not recognized under Egyptian or
Rabbinical law, the petitioner has not borne the burden of establishing
preference quota, status on behalf of the beneficiary as his adoptive
brother. The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
AD orrker UNDER TILE RELIGIOUS LAWS OF' THE JEWISH COMMUNITY
nt EGYPT
Egypt, like most Middle Eastern countries, still follows the traditional system of applying religious law to personal status matters.
Until January 1, 1956, Muslim, Christian, and Jewish communities in
Egypt maintained their own religious courts. Law No. 462, which became effective on January 1, 1956, abolished the religious courts and
transferred their jurisdiction to the secular courts. As a result, application of Muslim, Christian, and Jewish religious laws is now entrusted
to the civil courts. In a dispute betweentwo members of a non-Muslim
community which cannot be settled according to the principles of their
religious law, the principles of Islamic law will be applied in rendering
judgment.
A thorough search of the Rabbinical law concerning adoption
reveals that no legal principles exist under Jewish law for such an
institution. The Jewish community in Egypt prior to Law No. 462 of
January 1,1956 would have had to refer all adoption matters to secular
courts, which would apply the principles of Islamic law. However,
in studying the principles of Islamic law, we find that adoption also is
not recognized by Islamic law and that no claim of adoption can establish rights or obligations.
Articles 911-918 of the Egyptian Civil and Commercial Procedure
Law of 1949 as amended up to 1962 provide for the legalization of
adoption -without distinction between citizens and aliens.'
'The Ropptian Compilation of Lama (in Arabic, Al-Moteau'ah al-Miarlyah LilTashrto zaa al cfor/W), Vol. 4, Alexandria, Egypt, 1962, p. 100, under Mnrafa'at.
-
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Article 911.
If the national law of the person wishing the adoption and the national law
of the person to be adopted permit adoption, the interested parties must come
before the president of the Court of First Instance of the domicile of one of the
parties to record their declarations, after establishing that the conditions and
requirements demanded by their national laws have been .complied with for the
admissibility and validity of the adoption.
Article 912.
If 'the person wishing the adoption were the tutor, curator, or the legal administrator of the person to be adopted, no declarations shall be recorded until he
resign his position and appoint another person to take over his duties. He must
also submit an account of his administration of the minor's property, which has
to be approved by the appropriate court.
Article 913.
At the request of the interested parties, a Judgment for the certification of the
documents conts thing the declarations of adoption is issued by the court.
Article 914.
The judgment for certification must contain 'the names and surnames of the
parties concerned and the new name and surname of the person adopted.
Article 915.
Normally a judgment for certification of adoption can be appealed only; however, the Public Prosecutor may attack an appeal against a judgment for
certification.
Article 916.
A summary of judgment for certification of adoption must be published three
times during a period or ninety days in two daily newspapers designated by the
court.
Article 917.
During the ninety-day period following pronouncement of judgment, upon the
request of the interested parties, excerpts from the judgment shall be inscribed
in the margin of the birth register of the adopted's birthplace and in the margin
of his birth certificate. If the adopted were foreign born, the full text of the
judgment must be registered in a register specially provided for this purpose at
the office of the clerk of the Cairo tribunal.
Article .915.
The court which rendered the judgment for certification of adoption shall have
the competence to try any action brought for nullification, certification, or revo-
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Interim Decision #1846
cation of adoption. The court shall base its decision on the national laws of the
two parties, following in its judgment the provisions of the preceding two articles.
Prepared by
Dr. &hair E. Jwaideh, Chief
Near Eastern and African Law Division
Law Library—Library of Congress
March, 1968
670
