KONG

Interim Decision #2360




                                MATTER OF KONG
                          In Visa Petition Proceedings

                                     A-20282149

                       Decided by Board March 21; 1975

Under Burmese law a Kittima adoption to be valid must be registered pursuant to the
 Registration Act. A registered instrument may operate from the date of its execution if
 such date is prior to the date of registration (Section 47 of the Registration of Kittima
 adoptions Act). AnAppatittha (informal) adoption is not sufficient to confer immigration
 status under section 203(a)(2) of the Immigration and Nationality Act.
ON BEHALF OF PETITIONER:         Joe M. Chan, Esquire
                                 San Francisco Neighborhood Legal
                                    Assistance Foundation
                                 250 Columbus Avenue, Suite 200
                                 San Francisco, California 94133


  The petitioner has moved for reconsideration and reversal of our
decision dated March 25, 1974, in which we dismissed her appeal from
the district director's denial of her petition to classify the beneficiary as
her adopted son under section 203(a)(2) of the Immigration and Nationality Act.' Counsel has submitted additional material pertaining to
Burmese law, and we have received another memorandum of Burmese
law from the Far Eastern Law Division of the Library of Congress. The
motion to reconsider will be denied.
   Initially, counsel challenges our determination that an Appatittha
(informal) adoption under Burmese law is not sufficient to confer immigration status upon the beneficiary. We have reviewed the contentions
advanced on appeal, as well as the materials in the record pertaining to
Burmese law. We are satisfied that our decision not to accept an Appatittha adoption as sufficient for the purpose of the Immigration and
Nationality Act was correct. We have since reaffirmed that decision in
Matter of Chang, 

 (BIA 1974).
   Counsel maintains that a Kittima adoption effected under the Burmese law does not give the adopted child the full rights of a natural born
legitimate child in Burma. While this contention may be true, we do not
see how it aids the present beneficiary.
   Counsel also argues that registration is not a prerequisite to the
   That decision is Matter of Kong, 14 I. & N. Dee. 649 (BIA 1974).

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validity of a Kittima adoption. However, section 5 of the Registration of
Kittima Adoptions Act states: •
  No dispute as to the right of any person to inherit as or through a Kittima son or
  daughter shall be entertained by any Court unless the fact of the adoption, if it was
  effected after the 1st April 1911, is evidenced by an instrument:—
     (i) executed by the person making the adoption and (a) by the person who is adopted if
    not less than 18 years of age at the time of such execution aforesaid, or (b) if less than
    that age, then by the person or persons, if any, whose consent to the adoption is
    required by the Burmese Buddhist Law, and
    (ii) attested by at least two witnesses, and
    (iii) registered in Book 4 of the books referred to in sub section (1) of
                                                               -                      51 of the
     Registration Act.
In Lim Chin Neo v. Lim Geok Soo, f19561 Burma L.R. 248, 251, 261, the
court held that a claim for inheritance as a Kittima child was barred
unless the adoption was evidenced by a registered deed of adoption
conforming to the requirements of section 5 of the Registration of Kittima
Adoptions Act. We shall not accept less proof of aKittima adoption than a
Burmese court would require when the question arises in an inheritance
suit.
   Finally, counsel argues that the registered deed of adoption operates
from the date of an earlierAppatittha adoption of the beneficiary. There
is no provision of Burmese law that would allow an earlier informal
                                           ,


adoption to operate retroactively as a Kittima adoption. Section 47 of
the Registration Act of Burma evidently permits a registered instrument to operate from the date of its execution if such date is prior to the
date of its registration. However, this does not help the present beneficiary, because his deed of adoption was both executed and registered after his fourteenth birthday.
   We are satisfied that our prior decision was correct. The motion to
reconsider will be denied.
   ORDER; The motion to reconsider is denied.

Theodore P. Jakaboski, Alternate Board Member, dissenting:

     respectfully dissent.
   The majority opinion relies overly much on the provisions of Section 5
of the Registration of Kittima Adoptions Act, which went into effect in
1941. That section merely stipulates that courts will not entertain disputes over inheritance rights arising out of a purported Kittima adoption unless the adoption be evidenced by an instrument (1) executed by
the adopter, (2) witnessed, and (3) registered in a volume referred to in
the Registration Act of 1909.
   There is no compelling reason to hold that Section 5 controls with
validity of a Kittima adoption for purposes of the administration of the
immigration laws of the United Slates.
   The memorandum of law from the Library of Congress of January
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Interim Decision #2360
1975 relied upon by the majority itself acknowledged that prior to 1941
"it was held that where a formal ceremony of Kittima adoption could be
shown to have taken place in the presence of credible witnesses, summoned in order to secure publicity and notoriety to the factum of
adoption, pro if of adoption was complete." The petitioner claims that
there was a Ifittima ceremony in 1960, although there was no registration until 1970, when the child was over the 14-year old cut-off date
provided for in the immigration laws. It seems to me that the late
registration is a piece of evidence that should be considered as bearing
upon whether there indeed was an adoption ceremony in 1960. This
situation may be similar to that in Matter of ittz.e, 

(BIA 1968), wherein a customary adoption was subsequently registered
under the Hong Kong Adoption Ordinance, and the later registration
was too late for immigration purposes.
   The majority opinion rests upon the underlying premise that recognition of foreign adoptions is dependent upon the existence of full inheritance rights :11 favor of the person adopted. However, there is not
express requirement to this effect in the immigration laws. Moreover,
this approach conflicts with this Board's earlier ruling in Matter of
Ng,

 (BIA 1972), wherein the Board recognized
adoptions of females according to Chinese customary law in Hong Kong,
even though adopted girls did not enjoy full rights of inheritance. It is
difficult to distinguish the issues in the present ease from those in the Ng
case.
   It seems to me that the ends of justice and sound administration of the
immigration laws, as well as the purposes behind these laws, would be
better served if the resolution of an administrative appeal were to
depend more upon the factual realties of the familial situation than upon
the interposition of legalistic bars derived from an unrelated area of the
law such as inheritance.
   That is, what evidence is there that the Burmese authorities who
enacted Section 5 of the Registration of Kittima Adoptions Act wished
to invalidate unregistered Kittira adoptions? The simple answer is that
there is not such evidence. Obviously, the provisions of Section 5 were
promulgated in order to nudge the general populace into registering
their unregistered Kittima adoptions, so as to make the work of the
courts easier n inheritance cases.
   I see no policy that is served by extending these considerations into
something that bars our recognition of what evidently the ordinary
Burmese would consider to be a valid adoption - of the higher type.
   A number of factual questions have not been aired. Therefore, I
believe this case should be remanded to the district director for additional proceedings.

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