GERONIMO

Interim Decision #2456




                             MATTER OF GERONIMO

                          In Visa Petition Proceedings

                                      A-20453877
                      Decided by Board December 1, 1975
An adopted child who has not been adopted in accordance with the requirements of section
 101(b)(1)(E) of the Immigration and Nationality Act, as amended, cannot be classified as
 a "stepchild" under section 101(b)(1)(B) of the Act, as amended, even if the adoptive
 parent marries a United States citizen before the child reaches the age of 18. Hence,
 since the beneficiary in the instant case was adopted in the Philippines by the United
 States citizen petitioner's wife less than two years ago, the legal custody requirement of
 section 101(b)(1)(E) of the Act has not been fulfilled. Consequently, beneficiary cannot
 be classified as petitioner's "stepchild" under section 101(b)(1)(B) of the Act and is
 ineligible for immediate relative status under section 201(b) of the Act.
ON BEHALF CF PETITIONER:          Pro se


   The United States citizen petitioner applied for immediate relative
status for the beneficiary as his stepchild under section 201(b) of the
Immigration and Nationality Act. That petition was initially approved.
However, it. a decision dated September 9, 1975, after proper notice to
the petitioner, the district director revoked approval of the petition. The
petitioner has appealed from that decision. The appeal will be dismissed.
  . The beneficiary is a native and a citizen of the Philippines who was born
on July 4, 1962. Although no adoption decree is contained in the file, it
appears from the consular report in the record that the beneficiary was
legally adopted by the petitioner's wife in the Philippines on July 29, 1974.
   The term "child" is defined in section 101(b)(1)(B) of the Act to include
an unman-lei child under the age of 21 who is a stepchild, whether or not
born out of wedlock, provided the child had not reached the age of 18
years at the time the marriage creating the status of stepchild occurred..
  The term "child" is also defined in section 101(b)(1)(E) of the Act as
including a child adopted while under the age of 14 years, if the child has
thereafter been in the legal custody of, and has resided with, the adopting
parent or parents for at least two years.
   In Matter of A—, 

 (BIA 1959), we recognized that a
child adopted in accordance with the requirements of section
101(b)(1)(E) of the Act could be classified as a "stepchild" under section
101(b)(1)(B) of the Act if the adoptive parent married a United States
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citizen while the child was under the age of 18. Conversely, a child who
has not been adopted in accordance with section 101(b)(1)(E) cannot be
classified as a "stepchild" under section 101(b)(1)(B) even if the adoptive
parent marries a United States citizen before the child reaches the age of
18. Cf. Matter of Butterly, 

 (BIA 1973).
   Section 101(b)(1)(E) of the Act requires the child to have been in the
legal custody of the adopting parent for at least two years after the
adoption. Since the beneficiary was adopted by the petitioner's wife less
than two years ago, the legal custody requirement of section 101(b)(1)(E)
has not been fulfilled. Consequently, the beneficiary cannot be classified
as the petitioner's "stepchild" under section 101(b)(1)(B) of the Act, and
he does not qualify for immediate relative status under section 201(b) of
the Act.
  We realize that there are many sympathetic factors in this case.
However, we have no power to make an exception in the law for this
beneficiary. When the beneficiary has been in the legal custody of the
adoptive mother for two years, the petitioner can file a new petition in his
behalf. Under the circumstances, we have no choice but to dismiss the
appeal.
   ORDER: The appeal is dismissed.




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