KWOK

                                                    Interim Decision #2145




                               MATTER OF KWOK

                        In Visa Petition' Proceedings
                                   A-19406572

                      Decided by Board April 25, 1972
(1) The validity of the infancy adoption of beneficiary in mainland China in 1936
  is not vitiated by the fact beneficiary is a female, since Article 1072 of the Civil
  Code of the Republic of China specifically provided for the adoption of either
  males or females. [Matter of Yin, 13 I. & N. Dee. 624, distinguished.]
(2) The contention that an adoption must be accomplished by a juridical act
  before it can be recognized as valid for immigration purposes, is rejected.
  Matter of Fong, 

; Matter of Chin, 

; Matter
  of Jae, 12 L & N. Dec. 296; Matter of Chan, 

; among other
  prior precedent decisions which recognized Chinese adoptions, even though
  created without benefit of a juridical act, are reaffirmed.
(3) The long-standing rule that the validity of an adoption for immigration
  purposes is governed by the law of the place where the adoption occurred
  (Matter of      5 L & N_ Dee. as, 6 I. & N. Doe. 760), io reaffirmed.

ON BEHALF OF PETITIONER:                           ON BEHALF OF SERVICE:
  Benjamin Gim, Esquire                              R. A. Vielhaber
  217 Park Row                                       Appellate Trial Attorney
  New York, New York 10038

  The United States citizen petitioner applied for preference
status for the beneficiary as his adopted daughter under section
203(a)(1) of the Immigration and Nationality Act. The facts are not
in dispute. The District Director, on January 14, 1971 found that
an adoption had occurred under the laws of China and approved
the petition. However, his initial approval was revoked on July 22,
1971 on the basis of this Board's decision in Matter of Yiu, 

 (B IA, 1970). The District Director construed Matter of
Yin to rule out a valid adoption in the present case because the
beneficiary is a female. The petitioner appeals from the revocation.
His appeal will be sustained.
  The record indicates that the beneficiary was adopted in China
in May of 1936. The beneficiary was ten months old at the time of
adoption. The petitioner's husband, who is now deceased, evidently
gave his consent to the adoption_ The beneficiary resided with the
petitioner from 1936 until 1955. Although no written adoption
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agreement was presented, the District Director was correct in his
initial determination that an "infancy" adoption was proved in
this case. See Matter of Ace, 12 L & N. Dec. 296 (B IA, 1967).
  Petitioner's counsel protested the proposed revocation on the
ground that it was incorrect to apply Matter of Wu, supra, to the
present case. Counsel's contention was entirely correct. As he
pointed out, the Yiu decision was concerned with a 1949 Hong
Kong adoption and was decided on the basis of Chinese customary
law as it was applied in Hong Kong. Our opinion in Matter of Yiu,
supra, expressly held that the provisions of the Civil Code of the
Republic of China did not apply. The present case, on the other
hand, involves a Chinese adoption that took place on the mainland
of China in 1936. Consequently, the Civil Code of the Nationalist
Republic will be controlling. We note that the portion of the Civil
Code dealing with adoption, Book IV (Family), was promulgated on
December 26, 1930 and came into force on May 5, 1931.
  As counsel indicated, the Civil Code of the Republic of China did
not prohibit the adoption of females. Article 1072 specifically
provided for the adoption of either males or females. See Matter of
Chan, 11 I. & N, Dec. 219 (BIA, 1965).
  Ordinarily we would simply sustain the appeal and reinstate the
approval of petitioner's petition. However, the Service has raised
an additional issue which must be disposed of before the present
appeal may be resolved.
  The issue is a crucial one with potential impact, not only upon
all Chinese adoptions, but also upon adoption cases from many
other countries. The Service would have us recede from a long line
of decisions in which we recognized adoptions in China as valid for
purposes of section 101(bX1)(E) of the Immigration and Nationality
Act. The contention is that Chinese adoptions, even though valid
under the laws of China, nevertheless do not constitute "adoptions" for immigration purposes because, it is argued, an acceptable adoption may be created only as a result of a "juridical act." In
essence, the Service would have us recede from the long- standing
rule that the validity of an adoption upon which an immigration
status is grounded is governed by the law of the place where the
adoption status was created, Matter of R—, 

 (BIA,
1955).
  Historically, the courts have recognized Chinese adoptions as
valid for purposes of the immigration laws. One court, in Ex Parte
Fong Yin?, et al., 

 (S.D.N.Y., 1905), held as follows:
   The evidence shows that the practice of adopting children in China is very
 common, that it takes place substantially without legal formalities, but that
 the rights and obligations of children adopted and recognized as such are
 similar to those of natural children. Under these circumstances I can see no

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  difference between the legal status of adopted children and of natural
  children.
 This holding was specifically endorsed in Johnson v. Shue Hong,
 

 (1 Cir., 1924).
   The general rule in favor of recognizing adopted children as
 children was changed by the Immigration Act of 1924. That
 statute ordered that adoptions occurring after January 1, 1924
 would no longer be recognized for immigration purposes. In
 Tillinghast v. Chin Mon, 

 (C.A. 1, 1928), cert. dismissed
 

 (1929), the court stated that the 1924 Act took into
 account the construction of the prior act found in Johnson v. Shue

 Thus, from 1924 onward, adoptions were given no
recognition for immigration purposes until the 1957 amendment to
the Act of 1952 which created section 101(b)(1XE). The rule set
forth in Ex Parts Fong Yim et al., supra, and endorsed in Johnson
v. Shue 

 then, is back in operation by virtue of the
 1957 amendment to the 1952 Act.
   The Service's position ignores many judicial and administrative
precedents recognizing Chinese adoptions as valid for immigration
purposes. The Service bases its argument almost entirely on a
definition of the word "adoption" appearing in Matter of Chan,
supra, which equates adoption with a "juridical act." In that case
two definitions of adoption were set forth. The first, taken from
Bouvier's Law Dictionary (3d revision), is as follows: "Adoption is a
juridical act creating between two persons certain relations,
purely civil, of paternity and filiation." The second, taken from 2
Corpus Juris Secun,du?n, 367, reads as follows: "Adoption, in legal
contemplation, is the act by which parties thereto establish the
relationship of parent and child between persons [not] so related...."
   It is well-settled that under the Chinese Civil Code an adoption
did not require the permission or approval of a court or other
governmental agency. The same was true of adoptions under the
Ching Code. Hence, no "juridical act" was required under Chinese
law. As regards the present case, Article 1079 of the Civil Code
merely required that "Adoption must be effected in writing, unless
the person to be adopted has been brought up as a ■ Child of the
adopter since infancy." The word "infancy," as used in this connection, has been defined by the Supreme Court-of China to relate to
a child who is under the age of seven years.
   This Board has published a number of precedent decisions
concerning adoptions which took place under the Civil Code of the
Republic of China. In no case was it found that a Chinese adoption
was invalid because there was no juridical act of adoption. In the
following cases we recognized the Chinese adoptions as valid for
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purposes of section 101(b)(1XE), despite the absence of any juridical
act: Matter of Fong, 

 (BIA, 1964); Matter of Chin,

 (BIA, 1967); Matter of Jue, supra, and Matter of
Chan, 

 (BIA, 1967). A child adopted according to
the Civil Code was found to qualify as a "child" for purposes of the
Act of December 28, 1945, in the following reported cases: In the
Matter of W—M—S—and W—O—W—, 

 (BIA, 1948
and A.(L, 1948) and In the Matter of .W—M--G—, 3 I. & N. Dec, 608
(BIA, 1949). See also Matte of Yue, 12 I. &.N. Dec. 747 (BIA, 1968)
for a case arising under the Ching Code.
  Inasmuch as the Service's objection rests upon the technical
ground that one of the definitions of "adoption" contained in
Matter of Chan, supra, seemingly requires a juridical act, we
should examine that definition to ascertain- its derivation and
proper legal effect. We note that Bouvier's Law Dictionary (3d
revision) may hardly be classed as a contemporary source of law,
being first written in 1838 and last revised in 1914. The definition
of adoption equating adoption to a juridical act is not the primary
definition of adoption set forth in Bouvier's Law Dictionary. The
first definition listed is the following: "The act by which a person
takes the child of another into his family and treats him as his
own." The definition found in that work that equates adoption to a
juridical act is credited to "6 Demolombe, § 1," a reference to a
commentary on the Code Napoleon. Hence, the definition of
adoption upon which the Service relies has no validity in connection with non-civil law countries such as China.
   In addition, Matter of Chan, 

 (BIA, 1965), in
which the restrictive definition appears, was decided on other
grounds. In Chan we held that no adoption had been established
because the facts merely disclosed a loco parentis relationship,
with no adoption intended. The statement that an adoption contemplated a juridical act was pure dictum not essential to the
resolution of the case.
   Since Congress did not provide us with a definition of "adoption," we should apply the terrain its plain and ordinary meaning.
Webster's New International Dictionary, 2d edition, defines adoption as "Voluntary acceptance of a child of other parents to be the
same as one's own child." Absent a more particular formulation
from Congress, we shall employ this definition. We note that it is
in general accord with (1) the definition of adoption found in
Corpus Juris Secundum, supra, and (2) the first definition of
adoption found in Bouvier's Law Dictionary.
  We reject.the argument that an adoption must be accomplished
by a juridical act before it can be recognized as valid under section
101(b)(1XE) of the Act. We reaffirm our prior precedent decisions
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which recognized Chinese adoptions, even though created without
benefit of a juridical act. We also reaffirm our long-standing rule
that the validity of an adoption for immigration purposes is
governed by the law of the place where the adoption occurred.
  In the present case a valid infancy adoption under Article 1079
of the Civil Code was intitially established to the satisfaction of the
District Director. The approval of the petition was subsequently
revoked, but, as we have seen, for improper reasons. The beneficiary, then, qualifies as a "child" for purposes of section
101(b)(1)(E). The approval of preference status should be reinstated. The appeal will be sustained and the following order will be
entered.
     ORDER: It is hereby ordered that the District Director's
revocation of the approval of the petition granting preference
classification to the beneficiary be and the same is hereby set
aside, and the approval of the beneficiary's preference classification be and the same is hereby reinstated as of the date of original
approval.




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