CHIN

 Interim Decision #2151




                               MATTER OF CHIN

                        In Visa Petition Proceedings
                                    A-19425410

                      Decided by Board May 25, 1972
As many Chinese adoption cases are not grounded upon a formal adoption
 decree, the validity of such claimed adoptions must be determined bye careful
 weighing of the evidentiary materiaL Certified copies of affidavits, photographs, evidence of support, letters, and other documents presented bearing
 on validity should be made a part of the record. Photographs should be
 positively identified and verified under oath. Affidavits submitted should state
 (1) the nature of the affiant's relationship, if any, to the parties; (2) the basis of
 afflant's knowledge, and (3) contain a statement of the facts affiant knows
 regarding the adoption, rather than mere conclusory statements as to the
 existence of an adoption. Information in an affidavit should not be disregarded simply because it appears to be hearsay; in administrative proceedings
  that fact merely affects the weight to be afforded it. In addition, there is an
  exception to the hearsay rule relative to statements as to pedigree and family
  history made by relatives or members of the same, community. Affidavits
  executed by counsel would have little, if any, probative value.
ON BEHALF OF PETITIONER:                            ON BEHALF OF SERVICE:
 Benjamin Gim, Esquire                                R. A. Vielhaber
 21'7 Park Row                                        David L. Milhollan
 New York, New York 10038                             Appellate Trial Attorneys
 (Brief filed)                                        (grief tiled)



  The United States citizen petitioner applied for preference
status for the beneficiary as his adopted married son under section
203(a)(4) of the Immigration and Nationality Act. The District
Director, evidently finding that an adoption had been established,
approved the petition on October 14, 1970. However, his initial
approval was revoked on June 21, 1971 on the basis of this Board's
decision in Matter of Yiu, 13 L & N. Dec. 624 (BIA, 1970). The
petitioner appeals from the revocation. The appeal will be sustained, but the case will be remanded.
  The beneficiary is a married male who was born in China on
January 9, 1928. He was purportedly adopted on March 15, 1931.
Counsel urges that the validity of the adoption be gauged by the
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provisions of the Civil Code of the Republic of China. We do not
accept this point of view, inasmuch as the provisions of the Civil
Code dealing with adoption were not put into effect until May 5,
1931. The validity of the adoption in the present case, therefore,
must be determined with reference to the adoption law in effect
prior to the Civil Code of Nationalist China. The relevant provisions were found in the Ching Code, which was the subject of our
decision in Matter of Yiu, supra.
  At the time he made his decision to revoke, the District Director
was not incorrect in citing the Yiu case as authority. However,
since we rendered our decision in the Yiu case, we have had
occasion to reconsider the principles enunciated therein. As a
result, in Matter of Ng, Interim Decision No. 2147 (BIA, April 28,
1972), we receded from our ruling in Yiu. That case, therefore, no
longer serves as a bar to the approval of the present petition.
  In Matter of Kwok, Interim Decision No 2145 (BIA, April 25,
1972), we rejected the Service's argument that Chinese adoptions
even though valid under the law of the place where the adoption
status was created nevertheless do not constitute "adoptions" for
immigration purposes if not created as a result of a "juridical act."
Shortly thereafter we receded from two precedent decisions that
had served as legal obstacles to the acceptance of many Chinese
adoptions. In Matter of Ng, supra, we receded from our decision in
Matter of Yiu, supra, and returned to our earlier position as
expressed in Matter of Yue, 12 I. &. N. Dec. 747 (BIA, 1968). In the
Yue case we had recognized the validity of both (1) the adoption of
females and (2) the adoption of males even though not related by
birth, not of the same clan and not with the same surname. In
Matter of Yee, Interim Decision No. 2146 (BIA, April 28, 1972), we
receded from our earlier decision in a case involving a Chinese
with the same family name, Matter of Yee, 

 (BIA,
1970). The first Yee case had ruled out the possibility of recognizing an adoption occurring in the People's Republic of China as
valid for immigration purposes.
  Even though the legal impediments to the recognition of
Chinese adoptions have been removed, each petition based upon
an adoptive relationship still must be considered from a factual
point of view. In visa petition proceedings the burden of proof to
establish eligibility for the benefit sought under the immigration
laws rests with the petitioner, Matter of Brantigan, 

 (BIA, 1966). An application for preference classification must
be accompanied by evidence of the family relationship, 8 CFR
204.2(0(4
  In any case where an adoption is claimed to have taken place it
goes without saying that the identity of the parties must be
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established. The adoption paper which has been submitted refers
to the adoptive father as Mr. Chin Leung Suey of Ou Bing Village,
Konghoi. The petitioner's name is not Chin Leung Suey, but Kee
Yick Chin. An affidavit of the petitioner's wife executed on July 10,
 1970, indicates that, at the time of the claimed adoption of the
beneficiary, the petitioner did not reside in China at all, but was
residing permanently in the United States. The name of the
petitioner's wife, who, in her affidavit of July 10, 1970, stated that
she had adopted the beneficiary with the consent of the petitioner,
likewise is not mentioned in the adoption paper. The case will have
to be remanded in order to enable the District Director to verify
that the petitioner and the adoptive father are indeed the same
person.
   Inasmuch as many Chinese adoption cases are not grounded
 upon a formal decree of adoption, it is necessary to determine the
validity of the claimed adption by means of a careful weighing of
the evidentiary material submitted. Certified copies of affidavits,
photographs, evidence of support, letters and other documents
bearing upon the issue of the validity of the adoption exhibited by
the petitioner should be made part of the record. Affidavits
submitted should (1) state the nature of the affiant's relationship,
if any, to the parties, (2) set forth the basis of the affiant's
knowledge, and (3) contain a statement of the facts the affiant
knows regarding the adoption, rather than mere conelnsory statements as to the existence of  an
                              adoption. Information contained in
an affidavit should not be disregarded simply because it appears to
be hearsay. In administrative proceedings that fact merely affects
the weight to be afforded such evidence. In addition, there is an
exception to the hearsay rule on behalf of statements as to
pedigree and family history made by (1) relatives or (2) members of
the same community. Along the same line, affidavits executed by
counsel would have little, if any, probative value. Photographs
should be positively identified and verified under oath.
  The affidavits and photographs contained in the file before us
appear to be unobjectionable. We shall remand this matter to the
District Director, however, so that petitioner will be afforded an
opportunity to explain the discrepancies noted above and to
establish that there was, in fact, a valid adoption of the beneficiary, and so that a new order can then be entered by the District
Director.
  ORDER: The case is remanded to the District Director for
further proceedings consistent with the foregoing decision.




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