Interim Decision #2158
MATTER OF KWAN
In Visa Petition Proceedings
A-17113672
Decided by Board July 13, 1972
As the validity of many claimed Chinese adoptions must be determined
without benefit of a recorded formal adoption decree, resort must be had to
other forms of probative evidence. Affidavits, photographs, letters, evidence of
support, of residence, and other relevant documents should be submitted.
Photographs should be positively identified and verified under oath. Petitioner
should make clear what prior familial realtionship, if any, existed between the
parties to the claimed adoption. Petitioner should submit (or satisfactorily
explain the absence of) affidavits executed by (1) both adoptive parents, (2)
witnesses to the adoption ceremony, and (3) relatives and neighbors. Affidavits submitted should (1) state the nature of the affiant's relationship, if any,
to the parties; (2) set forth the basis of affiant'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 the 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. Additionally, 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.
ON BEHALF OF PETITIONER: Pro se
The United States citizen petitioner applied for preference
status for the beneficiary as her adopted daughter under section
203(aX1) of the Immigration and Nationality Act. The District
Director approved the petition on January 2, 1971. However, his
initial approval was revoked on August 9, 1971, on the basis of this
Board's decision in Matter of Yiu, Interim Decision No. 2061 (BIA,
1970). The petitioner appeals from the revocation. The appeal will
be sustained, but the case will be remanded.
The beneficiary is a female who was born in China on December
5, 1946. The file contains a written agreement of adoption dated
August 20, 1949, as well as other supporting affidavits.
The District Director's revocation of his initial approval was
prompted by a letter from the United States consulate in Hong
Kong calling the District Director's attention to this Board's
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Interim Decision #2158
decision in the Yiu case, which was rendered on November 19,
1970. The letter requested reconsideration and possible revocation
on the basis of the Yiu decision.
The District Director's reliance upon the Yiu decision as authority for revoking his initial approval of the petitioner's application
was misplaced. Inasmuch as the adoption in question evidently
took place in 1949, it would be governed by the adoption provisions
of the Civil Code of the Nationalist Republic of China. These
provisions went into effect on May 5, 1931 and remained in effect
until the Communist takeover in 1950. The law applicable to the
Yiu case, on the other hand, was the Ching Code, which ceased to
have effect in mainland China upon being superseded by the 1931
adoption law.
In any event, the Yiu case no longer serves as a precedent
decision. Subsequent to the District Director's decision to revoke
the initial approval of the petitioner's application, this Board had
occasion to reconsider the principles enunciated in the Yiu case.
As a result, in our recent precedent decision in Matter of Ng,
Interim Decision No. 2147 (BIA, April 28, 1972), we expressly
overruled our earlier holding in the Yiu case.
In addition, 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."
Even though the legal impediments to the recognition of
Chinese adoptions in general, and the adoption of females in
particular, have been removed, each petition based upon an adoptive relationship still must be considered from the 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, 11 I.& N. Dec. 493 (BIA,
1966). An application for preference classification must be accompanied by evidence of family relationship, 8 CFR 204.2(cX1).
Inasmuch as most Chinese adoption cases must be decided
without benefit of a recorded formal decree of adoption, it is
permissible to resort to other forms of probative evidence in order
to reach a decision as to the validity of the adoption.
For instance, it would be proper for the petitioner to submit
affidavits executed by (1) both adoptive parents, (2) witnesses to
the adoption ceremony, and (3) relatives and neighbors. The
absence of such affidavits is a factor the petitioner must satisfactorily explain. Affidavits submitted should (1) state the nature of
the affiant's relationship, if any, to the parties, (2) set forth the
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Interim Decision #2158
oasis of the affiant's knowledge, and (3) contain a statement of the
'ads the affiant knows regarding the adoption, rather than mere
:onclusory statements as to the existence of the adoption. Information contained in an affidavit should not be disregarded simply
)ecause it appears to be hearsay. In administrative proceedings
hat fact merely affects the weight to be afforded such evidence,
lot its admissibility. It should also be noted that there is an
exception to the hearsay rule on behalf of statements as to pedigree
ind family history made by (1) relatives or (2) members of the same
:ommunity.
In the present case the petitioner has based her entire claim
zpon a written adoption agreement and the affidavits of herself,
;he beneficiary and two fellow villagers. These affidavits fail to
nention the basis of knowledge of the latter two persons or their
•elationship to thb parties. All four affidavits fail to recite the
'actual details surrounding the claimed adoption. Hence, we are
mable to consider them sufficient corroboration for the written
agreement of adoption.
It is well known that the Chinese possess particularly strong
'wilily ties and sentiments. Hence, we believe that it would be
seasonable to expect in most cases where a genuine adoption has
,aken place that the persons involved would have taken numerous
'vainly photographs over the years. This might not be true, of
,nurse, in the case of persons living in remote areas with limited
recess to photographic facilities or equipment. Such pictures
;hould be positively identified, verified under oath and submitted
with the application. In the present case none have been submited, despite the fact that the adoption purportedly took place back
n 1949_ The unavailability of such pictures is a factor that should
ie explained to the satisfaction of the District Director.
Frequently, as in the present case, it is claimed that an adoption
,00k place while the adoptive father was not present. It was held,
n Matter of Y—K—W—, 9 I. & N. Dec. 176 (A.G., 1961), that the tworear legal custody and residence requirement contained in section
.01(bX1XE) of the Immigration and Nationality Act may be satisled when custody and residence have been with only one of the
adoptive parents. However, there must be sufficient evidence in
he record from which the District Director could conclude that
he custody and residence requirements have been met on the
mrt of at least one of the parents. In the present case all that
ve are able to glean from an examination of the file is the fact
hat the petitioner's spouse left China in 1933 and went to the
'hilippines, where he presently resides. There is no information as
o when the petitioner and the beneficiary left China and made
heir way to Hong Kong. No evidence as to the residences of the
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Interim Decision #2158
parties has been presented. We must conclude, therefore, that the
present record is insufficient to show compliance with the residence and custody requirements of section 101(b)(1XE).
In cases such as the present one, involving adoptions claimed to
have occurred in mainland China under the Nationalists, the
adoption provisions of the Civil Code of the Republic of China must
be taken into account.
Two sections of the Civil Code may be relevant to this case. First,
Article 1074 of the Code required that when a married person
adopted a child, he secured the consent of his spouse. See Matter of
Jue, 12 I. & N. Dec. 296 (B IA, 1967). Second, Article 1080 provided
for termination of an adoption by mutual consent. See Matter of
Lee, Interim Decision No. 2098 (BIA, 1972).
In the present case, the file before us contains no solid probative
evidence that the petitioner's spouse consented to an adoption.
Indeed, it is noteworthy that there is nothing at all from him, even
though he is presumably alive in the Philippines. The absence of
an affidavit from him has not been satisfactorily explained. We
also note the absence of any letters from him, or evidence that he
contributed to the support of the beneficiary. As a result, we are
not prepared to find that the petitioner has demonstrated compliance with the requirements of Article 1074 of the Civil Code, and
we cannot rule out the possibility that the adoption was terminated by mutual consent pursuant to Article 1080 of the Civil
Code.
In any Chinese adoption case the petitioner should make clear
what prior familial realtionship, if any, existed between the parties
to the claimed adoption. In Matter of Yuen, Interim Decision No.
2120 (BIA, 1972), we said that such factors as an uncle-nephew
relationship, or that the alleged adopted child continued to remain
with his natural parents instead of coming under the parental
control of the alleged adoptive parent cast doubt upon the bona
fides of the adoption. When such factors are present, the doubt
raised must be explained away by means of sufficient evidence.
In the present case it was not disclosed until the notice of appeal
was filed that the petitioner is the aunt of the beneficiary. That
fact was never before the District Director for his consideration.
The doubt raised as to the bona fides of the adoption has not been
eliminated.
In sum, a number of questions have been raised which have not
been fully explored or satisfactorily explained. We feel that further
development of the issues present in this case is essential before
any determination can be made by us. Even though we shall
sustain the appeal on the ground that the revocation was not
correct for the reason given, we are unable to reinstate the
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Interim Decision #2158
approval of the petition initially granted by the District 'Director.
The case will be remanded and the following order will accordingly
be entered.
ORDER: The appeal is sustained, but the case is remanded to
the District Director for further proceedings consistent with the
foregoing opinion.
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