KWIK

                                                  Interim Decision #1927




                              MATTES OF ICWIK

                       In Visa Petition Proceedings
                                 A-14822095
                   Decided by Board December 8, 1968
 Since under the law of Indonesia a legal adoption of a Chinese child can be
   acconiplished only if the adopting parent (a) appear before a notary public and execute a notarized adoption certificate, an Identification Certificate from the Mayor of Glodok, District of Djakarta, stating beneficiary
   was adopted when approximately 3 years of age by petitioner's parents,
   which Certificate, in the opinion of the U.S. Embassy at Djakarta, Indonesia, is an affidavit from a district official and does not conform with the
   standards set by law, does not constitute valid proof of a legal adoption in
   Indonesia for the purpose of conferring preference status on beneficiary.
 ON BEHALF OF   Prrrnornza:                       ON BEHALF OF SERVICE:
  John J. Barry, Esquire                            Irving A. Appleman
  One Hunter Street                                 Appellate Trial Attorney
  Long Island City, N.Y. 11101

    The case comes forward on appeal from the order of the District Director, New York District, dated May 13, 1968 denying
the visa petition for the reason that the documents submitted
 with the visa petition indicated that 'there was no formal adoption as required by Indonesian law; the documents submitted also
 reflect that the petitioner is the uncle of the beneficiary and the
immigration laws do not provide for preference to be granted to
nephews.
    The petitioner, a native of Indonesia, a naturalized citizen of
the United States, 41 years old, male, seeks preference quota status on behalf of the beneficiary as his brother. The beneficiary is
a native and citizen of Indonesia, 25 years old.
   In support of the visa petition there has been submitted a deposition by Bong Jin"TjOng executed March 3, 1967 at Djakarta,
Indonesia, to the effect that the deponent has known the parties
for 25 years; that the deponent knows the parents of the petitioner, Tan Lian Tjay, formerly known as Tan Piang Ho, and
Tjoa Lay Nio; that five children were born of this marriage: three
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 Interim Decision #1927
    sons and two daughters; that Tan Hian Nio, the third child had a
    baby out of wedlock, who is Tan Jo Han, formerly known as Kwik
    Jo Han, born in Djakarta, Indonesia on May 23, 1943; that the
   natural mother, Tan Hian Nio, died at Djakarta on May 7, 1945
   and that the beneficiary was adopted and reared by his grandparents as their own child; that the natural father, Kwik Tjhing
   Tho, died in 1946; that from the date of the death of the child's
   mother to the present day, the petitioner and the beneficiary have
   always been regarded as brothers by virtue of the fact the the
   beneficiary was adopted by Tan Liang Tjay and Tjoa Lay Nio.
   There also has been submitted a diploma dated April 15, 1960
   showing that Kwik, Jo Han, born on May 23, 1943 in Djakarta,
   Indonesia, is the son of Mr./Mrs. Tan Liang Tjay. There also has
   been submitted a birth certificate of Piang Ho, born December 11,
   1926 at Djakarta, Indonesia, the son of the husband and wife:
   Tan, Liang Tjay and Tjoa, Lay Nio. An Identification Certificate
   from the Mayor of Glodok, District of Djakarta, shows Kwik Jo
   Han, male child of the husband and wife, Kwik Tjing Tho and
   Tan Hian Nio, both deceased in 1945, was adopted at the age of
   approximately three years by the husband and wife, Tan Liang
   Tjay and Tjoa Lay Nio.
      The Identification Certificate was submitted to the Embassy of
   the United States at Djakarta, Indonesia, and on March 15 ,1968,
  the Embassy stated that Indonesia has separate laws applicable
  to its ethnic Chinese population: "Indonesian Civil and Commercial Laws for Chinese Persons." These laws are compiled in
  Chapter 2, pp. 169- 174, of "The Wetboeken, Wetten en Verordeningen van Indonesia." Chapter 2, Article 10 provides that a legal
  adoption of a Chinese child can be accomplished only if the adopting parents) appear before a notary public and execute a notarized adoption certificate. The Embassy expressed the opinion that
 the document at hand is an affidavit from a district offical and
  does not conform with the standards set by law; the evidence is,
 therefore, invalid as proof of a legal (formal) Indonesian adoption.
     The burden is upon the petitioner in visa petition proceedings
 to establish eligibility for the benefit he seeks under the immigration laws on behalf of the beneficiary. At oral argument counsel
'protested that the facts presented to the American Consul did not
 show that these were full-blooded Chinese who have dual citizenship and that the law in effect as that time was the law of Java,
 Netherlands East Indies. However, if counsel wishes to contradict
 the evidence submitted by the Service as received from the Amer-

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ican Embassy, he may question the Embassy further or submit
other evidence in support of the relationship. The appeal will be
dismissed without prejudice to a motion to reopen, properly supported.
  ORDER: It is ordered that the appeal be and the same is hereby
dismissed.




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