DELA CRUZ

Interim Decision #2470




                             MATTER OF DELA. CRUZ

                           In Visa Petition Proceedings

                                      A-20985122
                                      A-20985126

                     Decided by Board February 11, 1976
(1) Jurisdiction of the person, as well as jurisdiction over the subject matter, is a prerequisite for a valid adoption. Counsel's contention that "proper service of process" or
  "consent or waiver" can be substituted for the necessary personal jurisdiction is rejected.
(2) Since beneficiaries have not resided in Hawaii, were not born there, and have not been
  in the legal custody of a Hawaiian child-placing agency, their adoption in Hawaii by
  petitioner does not appear to meet the requirements of the applicable Hawaiian statute
  (Chapter 573-1) and, therefore, is not valid for immigration purposes. Moreover, there
  is no evidence that there has been compliance with the two -year residence requirement
  of section 101(b)(1)(E) of the Immigration and Nationality Act, as amended, either prior
  to or subsequent to the alleged adoptions. Consequently, beneficiaries are ineligible for
  immediate relative classification as the adopted children of the citizen petitioner.
ON BEHALF OF PETITIONER: B. Martin Luna, Esquire
                         2103 Wells Street
                         Wailuku, Maui, Hawaii 96793


   The United States citizen petitioner applied for immediate relative
status for the beneficiaries as his adopted children under section 201(b)
of the Immigration and Nationality Act. In a decision dated February
 13, 1975, the district director denied the petitions on the ground that a
valid adoption had not taken place inasmuch as both beneficiaries "are
and have always been in the Philippines." The petitioner appealed. The
appeal will be dismissed.
   The beneficiaries, both male, were born in the Republic of the Philippines on March 14, 1960 and August 10, 1960, respectively. The application lists both their addresses as in the Philippines. Counsel does not
dispute that they never have been in the United States.
   As proof of the adoptive relationship, the petitioner has submitted
two decrees, issued by the Family Court, Second Circuit, State of
Hawaii, on October 30, 1972, purporting to be effective retroactively to
August 10, :1972. Neither decree makes mention of the physical location,
residence or domicile of the children. Neither is there any recital as to
the court's jurisdiction over their persons.
                                          580
                                                            Interim Decision #2470

   Section 101(b)(1)(E) of the Act defines "child" to include unmarried
persons under twenty-one years who have been adopted while under the
age of fourteen years and have thereafter been in the legal custody of,
and have resided with the adopting parent or parents for at least two
years.
   The pertinent Hawaiian statute, Chapter 573-1, reads, in part, as
follows:
                                                              ••
     Who may adopt; jurisdiction; venue. Any proper adult person, not married, or any
  person married to the legal father or mother of a minor child, or a husband and wife
  jointly, may petition a judge of the family court in which the child resides or was born or
  in which a child-placing organization . having legal custody . . . of the child is located, for leave to adopt a minor child. . . .
   The beneficiaries have not resided in Hawaii, were not born there,
and have not been in the legal custody of a Hawaiian child-placing
agency. Thus, it appears that the petition has not even 'met the requirements of the applicable Hawaiian statute.
   The district director was correct in his conclusion that jurisdiction of
the person, as well as jurisdiction over the subject matter, is a prerequisite for a valid adoption. We reject counsel's contention that
"proper service of process," or "consent or waiver" can be substituted
for the necessary personal jurisdiction.
   Moreover, there is no evidence that there has been compliance with
the two-year residence requirement of section 101(b)(1)(E), either prior
to or subsequent to the alleged adoption. Consequently, the petitioner
has failed to sustain his burden of establishing that the beneficiaries are
his adopted children for purposes of the immigration laws. The decision
of the district director was correct.
   The appeal accordingly will be dismissed.
   ORDER: The appeal is dismissed.




                                            581