TANG

 Interim Decision #2159




                             MATTER OF TANG

                       In Visa Petition Proceedings

                                 A-14083327

                     Decided by Board July 10, 1972
  Petitioner's alleged adoption by beneficiary in China in 1945 when she was
  approximately 14 years of age has not been established for immigration
  purposes since the provisions of Article 1079 of the Chinese Civil Code
  required that the adoption be in writing, the authenticity of the written
  instrument of adoption presented is at issue, and no credible evidence has
  been presented to support its authenticity. Even if a valid adoption agreement
  had been presented, there is no showing that petitioner, who,following the
  death of her father, continued residing, with her mother, in the same house in
  which she resided prior thereto, ever came under the parental control of the
  beneficiary; lux thee, doubt as to the bona fides of the adoption, raised by the
  fact beneficiary is the blood uncle of petitioner, has not been explained away.
ON BEHALF OF PETITIONER: Edward E. Merges, Esquire
                      4321 Seattle-First National Bank Bldg.
                      Seattle, Washington 98104



    The United States citizen petitioner applied for immediate
relative status for the beneficiary as her adoptive father under
section 201(b) of the Immigration and Nationality Act. The application was initially approved on November 28, 1966 but the approval
was subsequently revoked on August 12, 1970. The petitioner
appealed from that revocation. This Board, in an order dated April
20, 1971, remanded the case to the District Director in order to
secure expert testimony as to the authenticity of a Chinese adoption agreement submitted in support of the application. The District
Director was unable to find an expert and returned 'the file to this
Board. The appeal will be dismissed.
  The petitioner was born in China on October 10, 1931. According
to her affidavit dated June 9, 1969, she lived in China in a large
house with her parents, grandmother, brother and sister, her
father's brother (the beneficiary.) and her uncle's wife. Her father
died on September 7, 1945. Upon his deathbed he apparently asked
his brother to take the children and raise them as his own.
  The petitioner and her younger sister were purportedly adopted
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in mainland China by the beneficiary on September 10, 1945. The
petitioner was almost 14 years of age at the time. Article 1079 of
the Civil Code of the Nationalist Republic of China required that
an adoption be in writing, unless an "infancy adoption" had taken
place. The term "infancy adoption" relates to an adoption occurring before the child involved had attained the age of seven years.
Therefore, in the present ease an infancy adoption was not
possible, and the petitioner must prove her adoption by means of a
written agreement of adoption.
  The petitioner claims that there was a written agreement of
adoption in her ease. At first no document was presented. The
beneficiary, in a statement dated September 26, 1966, stated: "I do
not have the adoption agreement. It was left in the village." In her
affidavit the petitioner noted that she was informed by the Service
that a written adoption agreement would be necessary in her case.
She stated that she wrote to her adoptive parents, who purportedly sent to the home village in China and secured the writing
finally submitted.
  The petitioner continued to reside in the same' house after the
purported adoption. In September of 1948 she went to Hong Kong
with her mother, sister and brother. Her uncle, the beneficiary,
accompanied them, but returned to China after one month. The
petitioner was married in Hong Kong in October of 1948 and came
to the United States in 1950. The beneficiary remained in China
until 1952, at which time he moved to Hong Kong. Hence, the
petitioner resided in the same house as the beneficiary subsequent
to the claimed adoption only slightly more than three years.
  The District Director adopted the conclusion of the trial attorney, who found the written adoption agreement to be an after-thefact document, prepared and presented as a result of the Service's
request for written proof. Efforts to establish the age of the paper
upon which the adoption agreement was written have proven
unsuccessful. The file contains no corroborating evidence that an
agreement of adoption had been prepared in September of 1945
except for the affidavit of a cousin, Tang Yat Chow. Tang Yat
Chow in his affidavit claimed not only that a writing had been
executed in 1945 but also in 1954, when the petitioner's brother
was also purportedly adopted. That is incorrect, however, inasmuch as the beneficiary stated categorically that there was no
writing prepared in 1954 in the case of the petitioner's brother.
Consequently, after taking into account all the circumstances
present in this case, we must agree with the District Director who
concluded that no credible evidence had been presented to support
the authenticity of the written instrument of adoption.
  Even if a valid adoption agreement had been presented, we
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would still have to dismiss the prdsent appeal because the petitioner has not shown the existence of a valid subsisting adoption.
   For instance, there is no showing in the present case that the
petitioner ever came under the parental control of the beneficiary.
All she did was continue residing in the same house, with her
mother, that she had been residing in before her father's death.
See Matter of Chapralis, A-14922517, unreported (BIA, October 24,
1967), which is referred to 'hi Matter of Yuen, Interim Decision No.
2130 (BIA, 1972).
   In the Yuen case, we held that the fact that the putative
adoptive father was an uncle raised doubts as to the bona fides of
the adoption. We found in that case that the petitioner had failed
to explain away the doubt. The same reasoning should apply to
the present case, and we find that the petitioner has likewise
failed to explain away the doubt present on this score. Also,
the fact that the petitioner went to Hong Kong with her mother
three years after the claimed adoption, while the beneficiary
returned to mainland China after briefly accompanying them to
Hong Kong, raises the possibility that the adoption, if any, may
have been mutually terminated in accordance with Article 1080 of
the Nationalist Civil Code. We find that the petitioner has also
failed to offer sufficient evidence to explain away the doubt raised
as to the continuing effect of the adoption. See Matter of Lee,
Interim Decision No. 2098 (BIA, 1972).
   Based upon the foregoing, we conclude, then, that the District
Director was correct in holding the petitioner had not borne the
burden of establishing that the beneficiary is her parent as that
term is defined in section 101(b)(2) of the Act. Since the beneficiary
does not qualify as a parent for immigration purposes, he is not
eligible for preferred status as an immediate relative under section 201(b). The District Director accordingly was correct in revoking the initial approval of the application. The appeal will be
dismissed and the following order will be entered.
   ORDER: The appeal is dismissed.




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