YIU

Interim Decision #2061




                             MATTER OF YIU
                     In Visa Petition Proceedings
                               A-19182846
                Decided by Board November 19, 1970

Beneficiary, who was born in Hong Kong in 1940 (the daughter of a female
 servant who resided in petitioner's household), and whose care and custody were vested in petitioner in Hong Kong upon the death of beneficiary's mother in 1949, was not validly adopted by petitioner since the governing Chinese law and custom permits adoption only for purposes of
 family succession and is limited to males; further, adoption of strangers
 is allowed only when a person has exhausted all his kindred, and even
 then the adopted child must be of the same surname.
ON BEHALF OF PETITIONER:     Arlin W. Hargreaves, Esquire
                             Fallon, Hargreaves & Bixby
                             30 Hotaling Place
                             San Francisco, California 94111


    Petitioner appeals from a decision of the District Director denying this petition filed to accord the beneficiary status as the
adopted daughter of a United States citizen. For reasons to be
mentioned herein, we order this appeal dismissed.
    Petitioner, a native of Hong Kong, claims that in 1949 she
adopted the beneficiary, who was born in Hong Kong on February
[5, 1940. The beneficiary was the daughter of a female servant
yvho resided in petitioner's household and when the servant died
 n 1949, petitioner commenced carrying for the child. The record
liscloses that, following her mother's decease in 1949, the benefi-
:iary, under section 31 (2) of the Hong Kong Protection of
Nomen and Girls Ordinance, became a ward of the Secretary for
2hinese Affairs. Care and custody of the beneficiary were vested
 n the petitioner.
    In denying the visa petition, the District Director concluded
;hat this was not a valid adoption under Article 1079 of the
Thinese Civil Code inasmuch as the adoption was not in writing.
He further stated that "Chinese customary law and Article 1079
)1. the Chinese Civil Code require that an adopted person assume

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the surname of the adopter. None of these conditions have been
met."
  Petitioner argues on appeal that Article 1079 of the Chinese
Civil Code does not govern here since it is not the personal law of
Chinese domiciled in Hong Kong. She has presnted a memorandum on Chinese law and custom written by a barrister, Anthony
Dicks, dated February 14, 1967 concerning the adoption of one
Cyril Noel Bagalawis in Hong Kong. Therein the writer states
that Chinese law and custom prevail in Hong Kong to Chinese
domiciled there. We agree. The Chinese Civil Code which was in
force on the Chinese mainland from 1930 to 1950 cannot be considered the personal law of the petitioner or of the beneficiary,
for they were not born in China and were not domiciled in China.
Therefore, Chinese customary law as it applies in Hong Kong
governs here, Matter of Wong, Interim Decision No. 1982 (BIA,
1969)2
   In that connection we note that under Chinese customary law
the adoption of the beneficiary, a female, would be impossible.
Chinese customary law permits adoption only for purposes of succession to the family and is limited to males. 2 Additionally, the
adoption of strangers is prohibited and allowed only when a person has exhausted all his kindred. However, the adopted chld
must be of the same surname. 4 Since the beneficiary is a female
and a stranger to petitioner's household, it is clear that she cannot be considered to be validly adopted under Chinese law and
custom.
  ORDER It is ordered that the appeal be and the same is
hereby dismissed.




  1 Another reason, indicated in the record, for the application of Chinese
custom law to adoptions effected in Hong Kong sterns from the fact that, in
1999, no statute governing adoptions had been enacted by the Hong Kong
authorities. See Report of the Governor's Committee an Chinese Law and
Custom in Hong Kong, p. 49 (Hong Kong 1948).
  2 Id. at p. 200.
   I Report of the Governor's Committee on Chinese Law and Custom in
Hong Kong (Extract from Report on Child Adoption and Domestic Service
Among Chinese), p. 194 (Hong Kong 1948). See also Jamison, Chinese Family and Commercial Law, pp. 17-31 (China 1921).

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