CHANG

Interim Decision #2294




                               MATTER OF CHANG

                       In Visa Petition Proceedings
                                   A-20306974

                     Decided by Board June 12, 1974
Since beneficiary's alleged adoption in Burma by natives of China occurred
  subsequent to 1939, it was governed, not by Chinese customary law, but by
  Burmese Buddhist law, under which there are two forms of adoption: Kittima
  and Appatittha. Beneficiary's adoption, allegedly effected in 1950 without
  writing and without notifying the Burmese authorities, could not have been a
  Kittima adoption, which is similar to the concept of adoption in the United
  States. Assuming the adoption was an Appatittha adoption, the beneficiary is
  nevertheless ineligible for preference classification under section 203(a)(2) of
  the Immigration and Nationality Act, as amended, as an adopted son, since
  such adoption is insufficient to confer benefits for immigration purposes
  (11fattor of Kong, Interim Decision No. 2275).
ON BEHALF OF PF.7111.10N.ER:    Allen Jackson, Esquire
                                580 Washington Street
                                San Francisco, California 94111



  The lawful permanent resident petitioner applied for preference
status for the beneficiary as his adopted son under section
203(a)(2) of the Immigration and Nationality Act. In a decision
dated August 1, 1973, the District Director approved the visa
petition, after concluding that an adoption had taken place under
the law of Burma and that such adoption was sufficient for the
purposes of the Immigration and Nationality Act. The District
Director has certified his decision to us pursuant to 8 CFR 3.1(c).
We will reverse the decision of the District Director and deny the
visa petition.
  The petitioning father claims that he and his wife, both natives
of Chin; adopted the beneficiary in Burma in 1950 according to
Chinese customary law. The petitioner and his wife apparently
exchanged one of their own daughters for the beneficiary in order
that they might have a son to carry on the family line. After the
exchange, the beneficiary was raised as a son of the petitioner and
his wife. No adoption papers were exchanged, nor were the
authorities in Burma notified of the adoption.
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  The District Director obtained a memorandum of foreign law,
dated June 1, 1973, from the Far Eastern Law Division of the
Library of Congress. That memorandum sets forth section 13(1) of
the Burma Laws Act, Act XIII of 1898, which states:
       (1) Where in any suit or other proceeding in Burma it is necessary for the
     Court to decide any question regarding succession, inheritance, marriage or
     caste, or any religious usage or institution,
      (a) the Buddhist law in cases where the parties are Buddhists,
      (b) the Mohammedan law in cases where the parties are Mohammedans,
      and
    (c) the Hindu law in cases where the parties are Hindus
  shall form the rule of decision, except in so far as such law has by enactment
  been altered or abolished, or is opposed to any custom having the force of law.'

   Accordingly, the governing law in all cases where the parties
concerned are Burmese Buddhists is Burmese Buddhist law. Prior
to 1939, it was held that Chinese Buddhists in Burma were not
governed by the Burmese Buddhist law, but rather by the personal law of the Chinese, that is, Chinese customary law? However, in 1939 it was held that Burmese Buddhist law could not be
varied or overridden by exotic customs or usages. 3 Thereafter,
Burmese Buddhist law, not Chinese customary law, has governed
the rights of Chinese Buddhists domiciled in Burma.
   On the basis of the memorandum of Burmese law, the District
Director correctly concluded that the present case was not governed by Chinese customary law. He went on, however, to conclude that an Appatittha adoption had occurred under Burmese
Buddhist law and that this adoption was sufficient for the purposes of the Immigration and Nationality Act. We disagree with
this conclusion.
  We considered adoption under the Burmese Buddhist law in
Matter of Kong, Interim Decision 2275 (BIA 1974). We noted that
there are two forms of adoption under Burmese Buddhist law:
Kittima adoption, which is similar to the concept of adoption in the
United States, and Appatittha adoption, a casual relationship,
which does not create substantial rights and obligations between
parent and child.
  An instrument of adoption registered in accordance with Section
5 of the Registration of Kittima Adoptions Act is a prerequisite for
the legal validity of a Kittima adoption effected after April 1, 1941.
The present adoption was allegedly effected without writing and
without notifying the Burmese authorities. We agree with the

  1 The Burma Code,     Rangoon, Ministry of Justice, 1955, v. 1, p 9
 2   Tan Ma Since Zin v. Tan Ma Ngwe Zin, 10 Indian L.R. Rangoon Ser. 97 (1932).
     Tan Ma Shwe Zin v. Khoo Soo Choung, Rangoon L.R. 548 (1939).

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Interim Decision #2294
District Director's conclusion that there could be no Kittima
adoption in the present case.
   We held in Matter of Kong, supra, that an Appatittha adoption is
not an adoption for the purposes of the Immigration and Nationality Act. Therefore, even if we assume that the information submitted by the petitioner is sufficient to establish an Appatittha
adoption, the beneficiary is not entitled to preference status under
section 203(aX2) of the Act on the basis of such an adoption.
   The District Director cited Matter of Poon, Interim Decision No.
2153 (BIA 1972), and Matter of Rodriguez, Interim Decision No.
2195 (BIA 1973), as authority for his conclusion that an Appatittha
adoption is sufficient for immigration purposes. Those cases dealt
with adoption under Chinese law and custom in Hong Kong and
are inapplicable to the present situation. The District Director's
conclusion is inconsistent with our holding in Matter of Kong,
supra, and therefore it must be reversed.
   In visa petition proceedings, the petitioner has the burden of
establishing eligibility for the benefit conferred by the immigration laws. Matter of Brantigan, 11 L & N. Dec. 493 (BIA 1966). The
petitioner has not established that the beneficiary is his adopted
son for immigration purposes. Consequently, the visa petition
must be denied.
   ORDER: The decision of the District Director is reversed.
  Further order:The visa petition is denied.




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