Interim Decision *1916
MATTER OF CHONG
In Visa Petition Proceedings
A-17119216
Decided by Batted November 7, 1968
Beneficiary, who was born to the united States citizen petitioner's husband
and a concubine during the present marriage of petitioner and her husband, who was brought into the household of petitioner and her husband
when 2 years of age and reared as one of their own children, and whose
birth was registered in the Korean Family Register (even though registered by the husband/father as his child and that of his wife, the petitioner), is deemed adopted under the Korean Civil Code of 1960; hence,
beneficiary, having been adopted when under 14 years of age, is an
adopted child within the meaning of the Immigration and Nationality Act,
as amended.
ON BEHALF OF Porrnorges: Pro se
The case comes forward on appeal from the order of the
Officer-in-Charge, Tokyo, Japan, dated July 10, 1968 denying the
visa petition for the reason that the facts presented disclose that
the petitioner is not the mother of the beneficiary, but the beneficiary was born to her husband and a concubine during their present marriage. The facts further disclosed that the beneficiary has
never been legitimated or adopted by the petitioner. It was concluded that the beneficiary was not a child as defined in section
101(b) (1) of the Act.
The petitioner, a native of Honolulu, Hawaii and a citizen of
the United States by birth, 41 years old, female, seeks immediate
relative status on behalf of the beneficiary as her stepson or
adopted son. The beneficiary is a native and citizen of Korea, 16
years old.
The evidence establishes that the petitioner and her husband,
Ki Pang Yun, a native and citizen of Korea, were married on
July 28, 1947 as reported in the Korean Census Family Register.
Seven children were born of this marriage. The beneficiary was
born on January 8, 1952 in Korea to the petitioner's husband and
a concubine, Chong Pun Yi, who died on April 8, 1954. Upon the
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Interim Decision #1916
death of the natural mother, the petitioner's husband brought the
child into their home and reported his birth in the Family Register on October 4, 1961. The Family Register shows that the beneficiary is registered as the child of Yun Ki Bong, father, and that
his mother is shown as Ok Kyung Hee, whereas the true mother
was the concubine, Chong Pun Yi. The petitioner and her husband received the beneficiary into the household and raised him
as one of their own children. The petitioner seeks to have the
beneficiary immigrate with the other members of the family.
Inquiry was directed to the Library of Congress to ascertain
whether the beneficiary had any status under Korean law, either
as a legitimate or as an adopted ehild,i or as a stepchild.
Under Article 855, paragraph 2, of the Korean Civil Code
(Law No. 471, Feb. 22, 1958; effective January 1, 1960) a
[recognized] child born out of wedlock shall acquire the status of
a legitimate child by reason of the marriage of its father and
mother as from the time of the marriage. Therefore, under Korean law, the beneficiary is neither a legitimate nor a legitimated
child.
Additional information regarding adoption as well as legitimation has been supplied by the Library of Congress? The pertinent
portion of this article is attached hereto and made a part hereof.
Under the old Korean law, prior to the new Civil Code of 1960,
it was not permissible for an individual to adopt his or her child
born out of wedlock_ Such an adoption was held to be contrary to
Korean customary law by the High Court, the court of last resort, during the Japanese occupation.
Under the new Civil Code of 1960, there are no express provisions covering this subject. In the absence of any specific provisions, it may be construed that such an adoption is not
prohibited. Regarding this question, Mr. Mun Chong-song, an authority on Korean law, refers to Article 877 of the Civil Code
which concerns the prohibition of the adoption of a lineal ascendant or older person, and states that a person may adopt persons
to whom he or she actually stands in parental relationship: i.e., a
stepchild, a recognized child or a child born out of wedlock, exSection 101(b) (1) (E) of the Immigration and Nationality Act, defines
the term "child" to include a child ;Adopted while under the ago 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.
2 Prepared by Dr. Sung Yoon Cho, Far Eastern Law Division, Law Library, Library of Congress.
46
Interim Decision *1916
cepting his or her legitimate children. If a husband and wife wish
to adopt his or her child born out of wedlock in order to give the
child the status of a child born during the marriage, a joint adoption [mentioned in Article 876] by the husband and wife is necessary.
Neither the Civil Code nor the Family Registration Law deals
with the question of whether and under what circumstances the
registration of the child by an individual as his child and that of
his wife constitutes such an adoption. In the absence of specific
provisions, the following statement made by Professor Kim regarding notification of an adoption in general is perhaps pertinent: An adoption becomes effective by giving notification thereof
in accordance with the form prescribed by the Family Registration Law -(signed by both parties and two witnesses). Without
the procedural requirement of the registration, there would be no
legally valid adoption, even though the parties have agreed to effect an adoption or they have lived together as parent and child.
The intention of adoption should be shown on the part of the two
parties when the registration is completed and filed. With respect
to the case where the father gives false notification to the Family
Registrar, stating his natural child born out of wedlock is his
child and that of his wife, Professor Chong Kwang-hyon is of the
opinion that in a strict sense, such notification is not valid although its validity may not be seriously questioned. However, it
should be given the effect of recognition because the intention of
the father to recognize the child is manifested through the said
notification. This is called "quasi-recognition" and "conversion of
a void act" set forth in Article 138 of the Civil Code.
According to the information furnished by the Library of Congress, the beneficiary was registered on October 4, 1961 in the
Korean Family Register and the new 1960 Law is applicable to
the case. Under the new Civil Code of 1960 there are no express
provisions concerning whether it is permissible for an individual
to adopt his or her child born out of wedlock. In the absence of
any specific provisions, it may be construed that such an adoption
is not prohibited, according to Korean authorities. The adoption
must be a joint adoption by the husband and wife, such as occurred in this case. Where the father gives false notification to
the Family Registrar stating his child born out of wedlock was
his child and that of his wife, its validity may not be seriously
questioned and it should be given the effect of recognition because
the intention of the father to recognize the child is manifested
47
Interim Decision # 1916
through the said notification. Accordingly, it would appear that
under the facts of this case, there has been effected an adoption
such as would be sufficient to give the beneficiary the status of an
adopted child for immigration purposes, inasmuch as the beneficiarY was adopted while under the age of 14 years as required by
the immigration laws. The visa petition will be approved.
ORDER : It is ordered that the visa petition be approved for
immediate relative status.
ADDENDUM
III. Adoption of a Child Born out of Wedlock by its Parent.
Under the old Korean law, it was not permissible for an individual to adopt his or her child born out of wedlock .3 Such an
adoption was held to be contrary to Korean customary law by the
High Court, the court of last resort, during the Japanese
occupation .3
Under the new Civil Code of 1960, there are no express provisions covering this subject. In the absence of any specific provisions, it may be construed that such an adoption is not
prohibited'
Regarding this question, Mr. Mun Chong-song, however, refers
to Article 877 of the Civil Code and interprets it as follows :
Under this provision (concerning the prohibition of the adoption of a lineal ascendant or older person) ... a person may adopt a nephew or niece,
the child of a first cousin, a younger brother or sister . . . or even persons
tdwards whom he or she actually stands in parental relationship, i.e., a
step-child; a recognized child or a child born out of wedlock, excepting his or
her legitimate children —.4
Professor Kim Chu-su elaborates this subject further stating
that "if husband and wife wish to adopt his or her child born out
of wedlock in order to give the child the status of a child born
during the marriage, a joint adoption by the husband and wife
[mentioned in Article 8763 is necessary."
Kim Chu-su, Sin Cleinzok sangookpgp [New Law of Relatives and Succession], Seoul, Plipmunsa, 1964, p. 204.
2 Judgment of October 4, 1931. See Kakichi Nagumo, Genk8 Chosen shinzoku
s6zoku,h6 ruishi [Present Korean Law of Relatives and Succession], Seoul,
Osakayag0 Shoten, 1936, p. 213.
2 Kim, Chu su, Sin Cleinzok aczogeokpOp, p. 212.
-
4Mun Chong-song, Sin Mimpop t'ongnan [Commentary on the New Civil
Code], Seoul, PfipchOngsa, 1960, p. 630.
5 Kim, Chu-su, "Ipyang singo," [Notification of Adoption], Sapip haengjang,
Vol. 5, No. 8 (1964), p. 80.
48
Interim Decision #1916
However, he distinguishes the adoption of the husband's child
born out of wedlock from that of the wife's child born out of
wedlock :
In the former case, an adoption seems to be difficult because an objection
on the part of the future legitimate mother (the lawful wife of the father
of a natural child) who will become the adoptive mother is anticipated.
However, if the future legitimate mother agrees to effect such an adoption
or she is no longer alive, the said adoption would be effected without too
much difficulty. In the latter case, no objection to an adoption is likely to
occur, because the natural mother who also becomes the adoptive mother has
no conflicting interests. The child's mother who is a party to an adoption
can agree to effect an adoption In the capacity of the adoptive mother and
also can consent to it as the natural mother in behalf of a minor child .13
Neither the Civil Code nor the Family Registration Law deals
with the question of whether and under what circumstances the
registration of the child by an individual as his child and that of
his wife constitutes such an adoption. In the absence of specific
provisions, the following statement made by Professor Kim regarding notification of an adoption in general is perhaps pertinent:
An adoption becomes effective by giving notification thereof in accordance
with the form prescribed by the Family Registration Law (signed by both
parties and two witnesses). Without the procedural requirement of the registration, there would be no legally valid adoption even though the parties
have agreed to effect an adoption or they have lived together as the parent
and child. The intention of adoption should be shown on the part of the two
parties when the registration is completed and filed. If one of the parties
withdraws the intention after signing the registration, the Family Registrar
has the duty to reject such registration [Article 881]. However, the Family
Registrar is only empowered to review the documents presented before
him, not to check the existence of actual intentions of both parties to an
aduption.7
With respect to the case where the father gives false notification to the Family Registrar stating his natural child born out of
wedlock as his child and that of his wife, Professor Chong
Kwang-hyon is of the opinion that:
In Korea there are many cases in which the father gives false notification
to the Family Registrar stating his child born out of wedlock as his child
and that of his wife. In a strict sense, such notification is not valid although
its validity may not be seriously questioned. However, it should be given the
effect of recognition because the intention of the father to recognize the
child is manifested through the said notification. This is called "quasi-recog-
Ibid. With regard to the latter instance, see also Ch'oesin hojec silinu
cleongnan [New Manual of Family Registration], Seoul, Han'guk Sapop
Haengj6ng Halthee, 1964, pp. 860-961.
7 Kim Chu-su, "Ipyang singo," p. 79.
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Interim Decision #1916
nition" and "conversion of a void act" set forth in Article 138 of the Civil
Code
Prepared by: Dr. Sung Yoon Cho
Far Eastern Law Division
Law Library
Library of Congress
a Chong Kwang-hyon, Sincleinzok sangsokpop yoron [New Law of Relatives
and Succession], Seoul, Isong Munhwasa, 1958, p. 207. See also Kwon
Kankoku shinzolcu sOzoku ho' [Korean Law of Relatives and Succession],
Tokyo, Kabundft, 1961, p.• 113: and Pomnyurhak salon, [Legal Dictionary],
Seoul, Popmunsa, 1964, pp. 721—'122.
50
13 I. & N. Dec. 45
CHONG
Decided July 1, 1968
Board of Immigration Appeals · decided 1968-07-01
Decided 1968-07-01