Interim Decision #2147
MATTER OF NG
In Visa Petition Proceedings
A-20029181
Decided by Board April 28, 1972
The validity of the simple adoption of beneficiary under Chinese law and custom
(Tsing Code) in Hong Kong in 1954 is not vitiated by the fact beneficiary is a
female. The Tsing Code provided for two different kinds of adoptions: (1) a
"ritual adoption", an adoption of a male to act in the ritual capacity of an heir
to the ancestral cult associated with the agnatic lineage of the adopted father,
and (2) a "simple adoption", an adoption of a male or female to stand in the
relationship of son or daughter of the adoptive parent, but without acting in
the capacity of an heir to the ancestral cult or lineage. [Matter of Yiu, 13 I. &
N. Dee_ 624, overruled.]
ON BEHALF OF PETITIONER: ON BEHALF OF SERVICE:
Charles J. Wong, Esquire R. A. Vielhaber
250 Columbus Avenue, Room 200 Appellate Trial Attorney
San Francisco, California 94133 (Brief filed)
(Brief filed)
The lawful permanent resident petitioner applied for preference
status for the beneficiary as his Unmarried daughter under section
203(a)(2) of the Immigration and Nationality Act. The District
Director denied the petition in an order dated April 29, 1971, and
the petitioner appeals. The appeal will be sustained.
The beneficiary is an unmarried female, born July 1, 1949 in
Hong Kong, evidently of Chinese ancestry, who presently resides
in Hong Kong. The file contains an adoption agreement stating
that the beneficiary was adopted by the petitioner's wife on June
17, 1954. The petitioner, who was married to his spouse in Hong
Kong in 1938, stated in his petition that he had last resided
together with his wife in Hong Kong in 1948.
Section 203(aX2) provides for visa preference for qualified immigrants who are the unmarried sons or unmarried daughters of an
alien lawfully admitted for permanent residence. The beneficiary
is unmarried and the petitioner is an alien lawfully admitted for
permanent residence. There is no definition of "son" or "daughter"
in the Immigration and Natidnality Act, but "child" is defined in
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Interim Decision #2147
section 101(b)(1). Subsection (E) defines "child" to include a child
adopted while under the age of fourteen years if the child has
thereafter been in the legal custody of, and has resided with, the
adopting parent or parents for at least two years. We have
previously held that a child adopted in compliance with section
101(b)(1XE) of the Act qualified as a "son" or "daughter" for
purposes of receiving preference status, Matter of Yue, 12 I. & N.
Dec. 747 (BIA, 1968).
We note that the two-year legal custody and residence requirement may be satisfied when custody and residence have been with
only one of the adoptive parents, Matter of Y ni"--W , 9 I. & N.
— —
Dec. 176 (A.G., 1961). The file contains evidence that the petitioner's spouse has resided at her present address since at least
1961, and that the beneficiary resides at the same address. On the
basis of this we presume that the residence and custody requirement has been met. The adoption in the present case took place
before the beneficiary attained the age of fourteen years.
The District Director denied the petition because he was of the
opinion that the beneficiary could not be considered an adopted
child for purposes of section 101(b)(1XE) because she is a female.
He found that the validity of the adoption must be determined by
Chinese law and custom, or the Tsing.Code. The District Director
cited this Board's decision in Matter of Yiu, 13 I. & N. Dec. 624
(BIA, 1970), as authority for the proposition that the adoption of a
female is precluded under the Tsing Code. He accordingly denied
the petition.
It is well settled 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 1?—,
6 I. & N.
Dec. 760 (BIA, 1961). In Matter of Yue,
12 I. & N. Dec. 747 (BIA,
1968), we held that the law of adoption applicable to Chinese
domiciled in Hong Kong is Chinese law and custom.
Counsel has furnished us with an expert opinion prepared by
Anthony Richard Dicks, a Barrister-at-Law in Hong Kong, who is
also a Lecturer in Oriental Law at the University of London. Mr.
Dicks defines "Chinese law and custom" as relating to Hong Kong
to mean "the rules of law which were generally in force in the
Chinese Empire on, 5th April 1848 together with and subject to
such rules of custom as were at that date and/or have thereafter
been applied in China or any part thereof or in Hong Kong with
the force of law." Chinese law and custom was described as "the
common law of China" in a decision of the Supreme Court of Hong
Kong, Ho Tsz-Tsun v. Ho Au-Siti, 10 H.K.L.R. 69 (1915). According
to Mr. Dicks, this definition has been adhered to and applied by
the courts of Hong Kong as denoting the customary law of China
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Interim Decision #2147
"as partly evidenced by, but not necessarily as wholly defined by
or confined to, the provisions of the statutory law of the late
Ch'ing (Tsing) imperial dynasty as they were in force on 5th April
1843." We accept the expert opinion of Mr. Dicks on this point.
We agree with counsel that part of the confusion regarding
Chinese adoption stems from the use of the words "formal" and
"informal" to refer to the two kinds of adoption possible under the
Tsing Code. In Matter of Chin, 12 I. & N. Dee. 240 (BIA, 1967), we
endorsed the view that the Tsing (or Ching) Code provided for two
kinds of adoption, each with different legal implications: (1) adoption of a male child for the purpose of instituting him as an heir for
perpetuation of the ancestral cult, and (2) the adoption of a child,
whether male or female, without intending to institute it as an
heir. In Matter of Yue, supra, we referred to these two kinds of
adoption as (1) a formal adoption, and (2) an informal adoption.
We agree that it would be better to distinguish between "ritual
adoptions" and "simple adoption." Counsel would describe the first.
as "an adoption by a childless married man or his widow of a male
to act in the ritual capacity of an heir to the ancestral cult
associated with the agnatic lineage of the adopted father," and the
other as "the adoption of a male or female to stand in the
relationship of son or daughter of the adoptive parent, but without
acting in the capacity of an heir to the ancestral cult or lineage."
This definition agrees with the classification used by the noted
Dutch authority on Chinese law, Professor M. H. Van Der Valk, in
his text, An Outline of Modern, Chinese Family Law (Peking, 1939),
at page 134. Van Der Valk refers to the simple or "informal"
adoption simply as "an adoption."
This Board has on several occasions recognized the second kind
of adoption as valid for immigration purposes, Matter of Dung
Chan, VP3-I-123920 (BIA, unreported, April 30, 1962); Matter of
Chin, 12 I. & N. Dec. 240, supra. The cases of Matter of Yue, 12 I. &
N. Dee. '747 (BIA, 196k); and Matter of Lung Chart, VP2-I-123920
(BIA, unreported, April 30, 1962), both involved simple adoptions of
a female in Hong Kong. In both cases we approved the petition.
The provisions of the Tsing Code dealing with adoption were
construed by the Supreme Court of the Republic of China in 1918
to permit the adoption of a female child. See the reference to
Appeal Case No. 195 found in Matter of Yue, supra, at page 748.
Our decision in Matter of Yiu, supra, was in conflict with these
decisions recognizing simple adoptions. In Yiu, we held that
"Chinese customary law jin Hong Kong] permits adoption only for
purposes of succession to the family and is limited to males." The
authority cited in support of our holding was the. Report of the
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Governor's Committee on Chinese Law and Custom in Hong .17cmg,
p. 200 (Hong Kong, 1948).
Petitioner's counsel asks that we reconsider and overrule our
precedent decision in Matter of Yiu, supra, on the basis of new
material not previously available to us. He points out that the
authorities cited in the Yin decision actually do not preclude the
adoption of females under the Tsing Code.
For instance, Appendix 9 of the Report of the Governor's Committee on Chinese Law and Custom in Hong :long was cited in
footnote 2 to support the proposition that only the formal institution of a male child as an heir was permitted in Hong Kong. The
expert opinions furnished by counsel support his position that the
writer of the appendix was not expressing the official view of the
Governor's Committee, but was merely stating his own personal
opinion. Further, it appears that his remarks were confined to the
subject of the formal institution of an heir.
An extract from a statement by Judge Russell of the Supreme
Court of Hong Kong, appearing in the report of the Governor's
Committee, was cited in footnote 3 in Yin. Counsel calls to our
attention the fact that the report of the Governor's Committee did
not contain the full text of Justice Russell's Report on Child
Adoption and Domestic Service Among Chinese. In fact, on page
two of the report, discussing the legal effect of the simple adoption
of females in Hong Kong, Justice Russell wrote the following:
They have equal rights with natural-born daughters. They are provided
with a dowry when married, but, like natural-born daughters, they have no
other claim on the inheritance.
Based upon the foregoing, we conclude that counsel is correct in
his contention that our decision in Matter of Yin, supra, was in
error. We accordingly overrule that decision on the basis of the
new material before us that was unavailable when we decided Yin.
Once our prior holding in the Yiu, case is overruled, the legal
basis for the District Director's denial of the present petition is
gone. We reaffirm our earlier holding in Matter of Yne, wpm,
which recognized the possibility of the simple adoption of a female
in Hong Kong. We shall proceed to resolve the present appeal on
the basis of the legal principles set forth in Matter of Yue, supra,
which antedated our decision in Yiu.
The evidence in the record establishes that a valid simple
adoption of a female child took place in Hong Kong in 1949. The
Service does not claim that there is no bona fide family unit. We
hold that such an adoption meets the requirements of section
101(bX1)(E) of the Act. We.accordingly overrule the District Director and hold that the beneficiary is entitled to preference status
under the provisions of section 203(a)(2) of the Immigration and
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Nationality Act as the child of the petitioner. The following order
shall be entered.
ORDER: It is ordered that the appeal be and the same is hereby
sustained.
It is further ordered that the petition for preference classification filed by the petitioner pursuant to section 203(a)(2) of the
Immigration and Nationality Act be and the same is hereby
approved.
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