Interim Decision #2146
MATTER OF YEE
In Visa Petition Proceedings
A-19428311
Decided by Board April 28, 1972
Petitioner's adoption of beneficary in mainland China subsequent to 1950 (in
1956) by written agreement of adoption which was examined and approved by
an agency of the Government of the People's Republic of China is a valid
adoption for Immigration purposes, since new evidence indicates that Article
13 of the Marriage. Law of the People's Republic of China relates to adoptive
relationships; that the courts of the People's Republic of China have recognized the existence of adoptive relationships; and that the procedure for
effecting adoption has been adequately spelled out in court decisions and
other legal writings. Wutte/ of Yee, 13 L & N. Dec. 620, overruled_]
ON BEHALF OF PETITIONER: ON BEHALPOF SERVICE:
Benjamin Gim, Esquire R. A. Vielhaber
217 Park Row Appellate Trial Attorney
New York, New York 10038 (Brief filed)
(Brief filed)
The lawful permanent resident alien petitioner applied for preference status for the beneficiary as his adopted son under section
202(02) of the Immigration and Nationality Act. The District
Director, on October 14, 1970, found that an adoption had been
established and approved the petition. However, his initial approval was revoked on September 30, 1971, on the basis of this
Board's decision in the case of another Chinese with the same
family name, Matter of Yee,'13 I. & N. Dec. 620 (BIA, 1970). From
the revocation the petitioner appeals. His appeal will be sustained.
The beneficiary was born in the People's Repuhlie of China on
August 22, 1955. The record indicates that he was adopted in
Canton on January 31, 1956. The file contains a copy of a document
signed by the natural parents entitled "Deed on Giving Own Son
Away to Other Persons for Adoption." A translation of it reads as
follows:
We, Moy Sam Nui and Chew Hon You, the undersigned, residing at No. 10,
Chou Yuet Lane, Canton City, Residence I.D. Card Nos. 2283737 and 1007540,
due to poverty and having too many children to take care of, have agreed to
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Interim Decision #2146
give our own baby child, Moy Hor Foo, to our friend, Yee Ken Kee, as his
adopted child. A mutual agreement has been filed with the Community Office
and the Police. This child's birth certificate, No. 5518, has also been given to
Mr. Yee Ken Kee and a new name has been given to the child. From this date
on, this child will be under the care of Mr. Yee, and we will have no rights
whatsoever to claim him back.
The adoption was registered with the local civil authorities on
January 31, 1956. The file contains a translation of an instrument
styled "A Guaranty on Children Adoption." It was signed by both
natural parents and was endorsed by The People's Committee,
North District of Canton. Although the adoption agreement only
mentioned the petitioner as the adoptive parent, the "Guaranty"
mentions both him and his spouse as the "receivers." •
Foreign law is a matter of fact which, like any other fact, must
be established by evidence. In Matter of Yee, supra, we found, on
the basis of the evidentiary material presented to us, that the Civil
Code of the Nationalist Republic had been suspended when the
Chinese Communist Government seized control of the niainland of
China in 1950. We also found that the People's Republic of China
had not enacted any adoption law and that there was no evidence
of any intention to revert to traditional Chinese custom and
practice with respect to adoption. The actual legal basis for our
decision in that case revolved around our construction of Article 13
of the Marriage Law of the People's RepubliC of China. We held (1)
that Article 13 related only to foster children and not to adopted
children, and (2) that even if it did relate to adopted children, it did
not outline a procedure for effecting adoptions.
Our decision in Matter of Ye's, supra, was founded upon an
opinion prepared by the Far Eastern Law Division of the Library
of Congress, which observed that the People's Republic of China
had not yet promulgated a statute governing adoption. The opinion quoted a 1952 Peking translation of Article 13 of the Marriage
Law which interpreted the Chinese characters "yang tzu to
mean "foster children."
Counsel maintains that a subsequent opinion from the Far
Eastern Law Division of the Library of Congress and other legal
materials not previously available tend to indicate that our holding in Matter of Yee, supra, was incorrect. He contends that (1)
Article 13 of the Marriage Law does relate to adoptive relationships, (2) the courts of the People's Republic of China have
recognized the existence of adoptive relationships, and (3) the
procedure for effecting adoptions has been adequately spelled out
in court decisions and other legal writings.
We have received a new memorandum from the Chief of the Far
Eastern Law Division of the Library of Congress,• dated January'
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19, 19'72, which apparently supersedes the opinion referred to
above. It concludes that the Chinese characters "yang tzu nfi"
appearing in Article 13 of the Marriage Law should properly be
translated as "adopted children," and not as "foster children." This
new opinion also contains translations of a number of court
decisions and legal writings emanating from the People's Republic
of China.1 This evidence supports the three contentions of counsel listed above. We agree that the new evidence now made
available to us requires a change in the conclusion we had reached
in Matter of Yee, supra.
In the present case a valid adoption was initially established to
the satisfaction of the District Director. There is no dispute as to
the facts surrounding the adoption. The approval of the District
Director was subsequently revoked on the basis of our decision in
Matter of Yee, supra. Inasmuch as we have receded from our
decision in that case, it no longer serves as a bar to the approval of
the present petition.
In the present case we find that (1) a written agreement of
adoption has been presented, and (2) the adoption was examined
and approved by an agency of the government of the People's
Republic of China. Accordingly, we find that the beneficiary
qualifies as an adopted child for purposes of section 101(bX1)(E).
He, therefore, is entitled to preference classification under section
203(aX2), having met all the other requirements. The approval of
the application for preference status was incorrectly revoked and
should be reinstated. The appeal will be sustained and the following order will be entered.
ORDER: It is 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 petition granting preference classification be and
the same is hereby reinstated as of the date of original approval.
Some of the new sources which are cited by the Library of Congress, and
which we have carefully considered in reaching our conclusion, are the following:
a. Marriage Law and Policy in the Chinese People's Republic by M. J. Meijer
(Hong Kong University Press, 1971).
b. An undated document entitled "Several Opinions Concerning Questions of
Adoption Relationships Expressed by the Supreme People's Court of the Central
People's Government."
c. An editorial entitled "Several Questions Concerning Adoption," appearing in
Chinese Law and Government: A Journal of Translations, Vol. II, No. 1 (Spring
1969).
d. An article entitled "General Discussion of the Marriage Law of the People's
Republic of China," by Ma Ch'i, Tung pei jen min to 1u3uhlt jen wen k'o hew& pao
(Academia Journal of the Humanistic Sciences of Northeastern People's University), No. 3 (1956).
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