YOUNG

Interim Decision #2154




                           MATTER OF YOUNG

                      In Visa Petition Proceedings

                                   A-18505403

                    Decided by Board June 15, 1972
The holdings in Matter of Ng, Interim Decision No. 2147, and Matter of Poon,
  Interim Decision No. 2153, are extended to recognize as valid for immigration
  purposes the adoption in mainland China in 1926 or 1927 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:
 Gerald L. McVey                                 R. A. Vielhaber
 30 Hotaling Place                               Appellate Trial Attorney
 San Francisco, California 94111                 (Brief filed)
 (Brief filed)

  The United States citizen petitioner applied for preference
status for the beneficiary as his married adopted son under section
203(a)(4) of the Immigration and Nationality Act. The District
Director denied the petition in an order dated April 7, 1971. The
District Director based his denial upon this Board's precedent
decision in Matter of Yiu, 13 L & N. Dec. 624 (BIA, 1970). The
petitioner appeals from the denial. The matter will be remanded
for further proceedings.
  The beneficiary is a married male, who was born in mainland
China in 1924. He was purportedly adopted in either 1926 or 1927
by petitioner's spouse, with petitioner's consent.
  The law governing the validity of an adoption in mainland China
in 1926 or 1927 was the Ching Code, along with Chinese customary
law. The provisions of the Ching Code remained in effect following
the establishment of the Nationalist Republic of China in 1911.
The portions of the Ching Code dealing with adoption continued in
force until May 5, 1931, when they were replaced by an adoption
law enacted by the Nationalist Government.
  At the time he made his decision in this case, the District
Director was not incorrect in making reference to our decision in
the Yiu case. Although the Yiu case dealt with an adoption in
Hong Kong, the same principles are present, inasmuch as the
Ching Code and Chinese customary law also govern the validity of
Chinese adoptions in Hong Kong.
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                                           Interim Decision #2154
  In Matter of Yiu, supra, which was concerned with the validity
of the adoption of a female, 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."
  The District Director denied the petitioner's application because
the petitioner had not established that the purported adoption met
the criteria set forth in the Yiu case.
  As we stated in Matter of Chin, 

 (B IA, 1967),
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 come from the same
kindred, but that these restrictions did not apply to adoptions of
the second type.
  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, Interim Decision No.
2147 (BIA, April 28, 1972), we receded from our holding in the Yiu
 case and recognized the adoption of a female in Hong Kong. In
Matter of Poon, Interim Decision No. 2153 (BIA, June 12, 1972), we ,
 extended our holding in Ng to recognize the validity in Hong Kong
of an adoption of a male child, even though not related by blood,
not of the same clan, and not of the same surname.
   The issue in the present case is whether we should apply the
same reasoning used in Matter of Poon, supra, to a similar
adoption occurring in mainland China prior to May 5, 1931. We
believe that we should extend our ruling in -the Ng and Poon cases
to cover the present case. Our holdings in those two cases are
accordingly extended. We also reaffirm our earlier decision in the
Chin case, supra, in which we recognized the validity of the simple
adoption of a male of a different family under the Ching Code.
   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 for further proceedings. The following order will, therefore,
be entered.
   ORDER: The matter is remanded for further proceedings not
inconsistent with the foregoing.


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