POON

                                                  Interim Decision #2153




                             MATTER OF POON '
                       In Visa Petition Proceedings
                                    A-10106076

                     Decided by Board June 12,'1972
The holding in Matter of Ng, Interim Decision No. 2147, is extended to recognize
  as valid for immigration purposes the adoption under Chinese law and custom
  in Hong Kong in 1953 of a male child, even though not related by blood, not of
  the same clan, and not of the same surname. [Matter of Chin, 

, reaffirmed.]
ON BEHALF OF PETITIONER:                         ON BEHALF OF SERVICE:
 Joseph S. Hertogs, Esquire                       R. A. Vielhaber
  580 Washington Street                           Appellate Trial Attorney
  San Francisco, California 94111
  (Brief filed)


  The United States citizen petitioner applied for preference
status for the beneficiary as her adopted brother under section
203(a)(5) of the Immigration and Nationality Act. The District
Director denied the petition on January 15, 1970. The petitioner
appeals from that denial. The matter will be remanded for further
proceedings.
  The beneficiary is a male alien of Chinese ancestry who was
born in Hong Kong in 1949. The file contains a written agreement
of adoption dated October 30, 1953 according to which Cheung Yee
Muey "of the Poon family," apparently the petitioner's mother,
adopted the beneficiary. The petitioner's father allegedly died in
1945.
  The District Director based his denial upon. his conclusion that
(1) the applicable law of adoption was the Ching Code, and (2) the
Ching Code requires that "a male adopted child be related by blood
to the adopter or at least come from the same clan or have the
same surname." He cited the absence of any written evidence that
these requirements had been met and denied the application.
  It is settled that the law of adoption applicable to Chinese
domiciled in Hong Kong, in addition to recent enactments by the
Hong Kong authorities, has been Chinese law and custom, Matter
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Interim Decision #2153
 of Yue, 

 (BIA, 1968). In our recent precedent
 decision in Matter of Ng, Interim Decision No. 2147 (BIA, April 28,
 1972), we endorsed a definition of the term "Chinese law and
 custom" which defined it as "the rules of law which were generally
 in force in the Chinese Empire on 5th April 1843 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." As we noted in the Ng case, the courts
 of Hong Kong have defined Chinese law and custom "as partly
 evidenced by, but not necessarily as wholly defined by or confined
to [the Ching Code]." See Matter of Chin, 

 (BIA,
 1967).
   The District Director's decision anticipated our subsequent precedent decision in Matter of Yiu, 

 (BIA, 1970). In
that decision, which was actually concerned with the validity of
the adoption of a female in Hong Kong under Chinese law and
custom, we noted that (1) "Chinese customary law permits adoption only for purposes of succession to the family [cult] and is
limited to males," (2) "the adoption of strangers is prohibited and
allowed only when a person has exhausted all his kindred," and (3)
"the adopted child must be of the same surname."
   As we stated in Matter of Chin, supra, the Ching Code provided
for two kinds of adoption (1) adoption of a male child for the
purpose of instituting him as an heir for perpetuation of the
ancestral cult, and (2) adoption of a child, whether male or female,
without intending to institute it as an heir. In the Chin case we
noted that the Ching Code provided a number of restrictions with
respect to the first type of adoption, namely, that the child must be
male and must come from the same kindred, but that these
restrictions did not apply to the second type of adoption.
   Subsequent to the District Director's decision in the present
case, we had occasion to reconsider the principles enunciated in
the Yiu decision. As a result, in Matter, of Ng, supra, we receded
from our holding in the Yiu, case and recognized the adoption of, a
female in Hong Kong under the Ching Code and Chinese custom
as a valid adoption of the second type.
   The issue in the present case is whether we should apply the
same reasoning used in Matter of Ng, oupra, to the adoption in
Hong Kong of a male child, even though not related by blood, not
of the same clan, and not of the same surname. We believe the
question should be answered in the affirmative and we accordingly
extend our ruling in the Ng case to cover the present case. We also
reaffirm our earlier holding in Matter of Chin, supra, which
recognized the possibility of the simple adoption of a male of a
different family under the Ching Code.

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  In the present case the District Director never reached the
factual issue of the validity of the adoption. In the absence of any
findings in that regard we have no choice but to remand the
matter to the District Director for further proceedings. The following order will be entered.
  ORDER: The case is remanded for further proceedings consistent with the foregoing.




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