Interim Decision #2060
MATTER OF YEE
In Visa Petition Proceedings
A-19169736
Decided by Board November 5, 1970
Petitioner's alleged adoption of beneficiary in China in 1952 when latter was
4 years of age has not been established for immigration purposes since no
adoption papers were presented nor adoption procedure or formalities followed, all previous Chinese laws and decrees regarding adoption were
abolished when the Chinese Communist Government seized control in 1950,
and further, Article 13 of the Communist Chinese Marriage Law pertaining to foster parents and foster children does not create a relationship
equivalent to adoption.
ON BEHALF OF PETITIONER: ON BEHALF OF SERVICE:
Joseph P. Fallon, Esquire Irving A. Appleman
30 Hotaling Place Appellate Trial Attorney
San Francisco, California 94111
Petitioner, a native of China and a permanent resident of the
United States, appeals the decision of the District Director denying this visa petition filed to accord the beneficiary classification
as the unmarried adopted son of a permanent resident alien. The
appeal will be dismissed.
In her visa petition, petitioner states that the beneficiary, also
a native and citizen of China, who was born on December 20,
1948 in Kwangtung Province, China, was adopted by her in 1952
with the consent of her husband, who was then residing in the
Philippines. The record reflects that when petitioner applied for
an immigrant visa in 1967 she indicated on her visa application
that she had a daughter and an adopted son, the beneficiary. Petitioner, in an interview, stated she adopted the beneficiary in
China when he was four years of age; that the beneficiary's natural parents came from a neighboring village; that no adoption
paper was executed and no milk money was paid.
The District Director noted, relying on an opinion from the
Secretary for Home Affairs of the Colony of Hong Kong, that the
Communist Chinese regime, in power at the time of the alleged
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adoption, had not promulgated any statute or regulation prescribing the formalities for adoptions. He concluded that in the absence of a legal statutory pronouncement regarding adoption on
the mainland of China since May 1, 1950, it was impossible to
fulfill the requirements for adoption as set forth in Matter of
Fong, 10 I. & N. Dec. 497 (1964).' Petitioner on appeal contends
that, although no specific procedure exists under Communist law
concerning adoptions, the institution of adoption has been preserved through Chinese customary law. We disagree. A memorandum from the Library of Congress, Far Eastern Law Division, of
record, indicates that when the Chinese Communist Government
seized the mainland of China in 1950, it decreed that :
All laws, decrees and judicial systems of Kuomintang reactionary government which oppress the people shall be abolished. Laws and decrees protecting the people shall be enacted and the people's judicial system shall be set
up. 2
The memorandum observes that after almost 19 years of existence, Communist China has failed to promulgate a civil code,
criminal code, or code of civil procedure and as a result, no code
of adoption, normally included within the civil code, has been enacted. There is no indication from the source material before us
that Communist China, in suspending the Civil Code, intended to
revert to Chinese custom and practice. In any event petitioner, in
discharging the burden imposed upon her under the immigration
law, would be required to establish that Chinese customary law
prevailed on the Chinese mainland at the time of the alleged
adoption. She has not met that burden.
Petitioner argues that, notwithstanding the suspension of the
Chinese Civil Code, the institution of adoption has been preserved.
She relies on Article 13 of the Communist Chinese Marriage Law
which provides :
Parents have the duty to rear and to educate their children; the children
I In Matter of Fong, this Board observed:
By statute, in most jurisdictions, but not at common law, a person may
adopt a child; and in such a case, unless there are statutory provisions to
the contrary, the rights, duties and obligations arising from the artificial relationship will be substantially the same as those arising from the natural
relation of parent and child. Where the artificial relation of parent and
child is created by adoption under the statute, the relationship will by the
express provisions of the statute, and even independently of such provisions,
give rise to substantially the same rights, duties, and liabilities as arise out
of the national relationship.
2 Chung yang jen min cheng fu fa ling hui pien, 1949-1950 [Collection of
Laws and Decrees of the Central People's Government, 1949-1950], Peking,
1952, p. 19.
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ye the duty to support and to assist their parents. Neither the parents
r the children shall maltreat or desert one another.
The foregoing provision also applies to Foster-parents and Foster-chilen. Infanticide by drowning and similar criminal acts are strictly prohibd.
?titioner urges us to accept the term "adoption" as within the
eaning of "foster parents" and "foster children." Assuming ariendo that the provision quoted above recognizes that the instition of adoption, standing alone, it does not serve to detail a
'ocedure regarding the manner in which adoptions may be efcted. The absence of any specific procedure bears upon the kind
proof required under our immigration laws to establish a valid
loption. Under 8 CFR 204.2(c) (7), to support a visa petition on
?half of an adopted child, a certified copy of the adoption decree
ust accompany the petition. The only evidence before us bearig on adoption is petitioner's own word that the child was
lopted by her. Whether this "adoption" was or is recognized by
le Chinese authorities on the mainland of China as creating
ghts and obligations between petitioner and the beneficiary anlogous to those between a natural parent and its child has not
een demonstrated.
Furthermore, while Article 13 of the Marriage Law refers to
foster children," we are not persuaded that "adopted children"
re included within that term. The term "foster" as it refers to
arent-child relationship has been defined to mean affording, reeiving or sharing nourishment or sustenance although not rented by blood or ties of nature or the like. In re Norman's Esate, 209 Minn. 19,
295 N.W. 63 (1940). The mere taking of a
hild into a family and treating it as a natural offspring without
omplying with formal procedures as prescribed by law is not an
doption. Succession of D'Asaro,
167 So. 2d 391 (1964) ; Stellmah
Henderdon Coop G.L.F. Service, 47 N.J. 163,
219 A. 2d 616
1966).
In Steelmah v. Henderdon
Coop, supra, the court discussed the
neaning of adoption in a proceeding to obtain workman's corniensation death benefits for a child who was allegedly adopted in
Quebec, Canada. The court in interpreting the New Jersey Adop-
3 Concerning adoptions effected under the Chinese Civil Code, this Board
tas required, in accordance with Article 1079 of that Code, a writing as
proof of adoption unless the person adopted has been brought up as a child
)f the adopter since infancy. The adoptive parents must have brought up
:he child intending to adopt it. The mere fact of bringing up the child is not
sufficient. Matter of Chan,
11 I. & N. Dec. 219 (BIA, 1965).
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Interim Decision #2060
tion Act as it applied to workman's compensation cases observed
at page 621:
Adoption was unknown to the common law although it was commonly
practiced and regulated under the Civil Law of both ancient Greece and
Rome. The first total regulation of the process was found in the Justinian
Code from which our modern legislation derives its principles. Under this
code, once the prescribed formalities were met, the adopted person was entitled to inherit from the adopted father both testate and intestate and there
was created the relation of paternity and filiation not before legally recognized. . . . Our Adoption Act [N.J.S.A. 9:3-17] seeks to accomplish these
same goals of succession, paternity and filiation by prescribing certain procedures to be met before the relationship of parent and child can be established.
…
The full meaning of the concept is conveyed by the term "adopted" alone,
for the mere taking of a child into a family and treating it as a natural
offspring without complying with formal procedures prescribed by law, is
not an adoption.
In our opinion Article 13 merely imposes on foster parents and
foster children certain obligations which parents and their children have, but it does not thereby create a relationship equivalent
to adoption. We conclude that the petitioner has not borne the
burden of establishing that a legal adoption within the meaning of section 101 (b) (1) (E) has been effected, and we dismiss
this appeal.
ORDER: It is ordered that the appeal be and the same is
hereby dismissed.
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