CHUNG

Interim Decision #2312




                                MATTER OF CHUNG

                           In Visa Petition Proceedings

                                      A-20017899

                       Decided by Board August 19, 1974
Beneficiary, born in Korea in 1957, and orphaned at a young age, was taken into the family
  of the petitioner's husband. Petitioner's registration of beneficiary's birth in the Korean
  Family Register in 1968 as the natural child of petitioner and her husband, without any
 formal adoption proceedings, did not create a valid adoptive relationship under Korean
  law. Accordingly, beneficiary cannot qualify as an adopted daughter of the lawful
  permanent resident petitioner and is ineligible for preference classification under section 203(a)(2) of the Immigration and Nationality Act, as amended. [Matter of Chong, 

, overruled, to the extent inconsistent with this decision.]
   The petitioner is an alien lawfully admitted for permanent residence
who sought preference status for the beneficiary as an unmarried
adopted daughter under section 203(a)(2) of the Immigration and Nationality Act. In a decision dated February 19, 1971, the. district
director approved the petition, but certified the case to us for review.
The decision of the District Director will be reversed.
   The petitioner, the petitioner's husband, and the beneficiary are natives and citizens of the Republic of Korea. The record indicates that the
beneficiary was born in July of 1957, was orphaned at a young age, and
was taken into the family of the petitioner's husband. Several years
after her marriage into the family in which the beneficiary resided, the
petitioner registered the beneficiary under Korean law as the natural
child of her 'Insbancl and herself. The petitioner and her husband,
however, did not attempt formally to adopt the beneficiary, evidently
because of their belief that a female child could not be adopted under
Korean law.
  The question presented in this case is whether the registration of the
beneficiary as the natural child of both the petitioner and the petitioner's
husband created a valid adoptive relationship in Korea. In Matter of
Chong, 13 L Sc N. Dec. 45 (BIA 1968), we were presented with a similar
question. In Chong, the petitioner's husband had fathered a child who
was born out of wedlock. After the mother of the child died, the
petitioner and her husband registered the child as their natural child.
We determined that this registration was sufficient to constitute' an
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adoption under Korean law. Our decision in Chong, however, appears
questionable in the light of new information which we have received
from the Far Eastern Law Division of the Library of Congress. 1
   This petitioner registered the beneficiary's birth in 1968. However, as
indicated in the attached memorandum of foreign law, the Supreme
Court of Korea held in 1967 that notification or registration of the birth
of a child cannot replace registration of adoption. Accordingly, since the
record does not indicate that any formal adoption proceedings were
undertaken in Korea, the beneficiary does not qualify, as the adopted
daughter of the petitioner. The decision of the district director was
incorrect.
   Although Matter of Chong, supra, is distinguishable on its facts from
this case, the underlying legal analysis cannot be distinguished. Accordingly, Matter of Chong is overruled to the extent that it is inconsistent
with this opinion.
   ORDER: The decision of the district director is reversed and the
approval of the visa petition is withdrawn.
                                       ADDENDUM
          ADOPTION OF AN ORPHAN IN A PRIVATE HOME UNDER
                     THE LAW OF THE REPUBLIC OF KOREA
   In a case involving the adoption of an infant whose birth had not been
registered by its natural parents, the Supreme Court of the Republic of
Korea held in 1947 that "if the adoptive father gives notification of the
birth stating that the (adoptive) child is his legitimate child and that of
his wife, it is reasonably construed that the adoptive relation arises
therefrom, provided that other substantive requirements of adoption
are met." 1 In a similar case, the Supreme Court held in 1967, however,
that "the notification of adoption . . . cannot be replaced by the notification of birth which states that the child of another (adoptive child) is a
legitimate child of the adopting parents . . . and that the status of
adopted child would not result from such notification of birth." 2
   Agreeing with the 1947 decision, Professor Kim elaborated on the
subject in a 1969 publication as follows:
    In Korea there are many cases in which the foster parents give notification of birth,
  stating that the child is thcir own child, although they wish to effect an adoption. This is
  motivated by two considerations: their love toward a child who was brought to their

   ' The full text of the pertinent memorandum of foreign law is attached as an addendum
to this opinion.
   ' Supreme Court decision, November 25, 1947; P'anre cleonguan [Collection of Cases)
(Seoul: Ch'Ongrimgak, 1966), p. 186.
   2 This 1967 decision was reported in the 1971 edition of the above Collection of Cases
which was received by the Library of Congress in 1972. See p. 186-186.1.

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  home at an infant age and their desire to regard him as their legitimate child in a family
  register. Due sympathy and certain remedy should be accorded to such foster parents'
  feelings. Althc ugh the relationship of legitimated child would not result from such
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  registration, it should be construed that the child acquires the status of adopted child
  thereby.'
   Nowhere did Korean statutes, the Supreme Court decisions or Professor Kim's statement mention the adoption of an orphan' in such a
manner. However, Professor Chung Kwang-hyon, the foremost authority on Korean family law, was of the opinion thd Professor Kim's
statement should be broadly interpreted to include faster parents' adoption of an orphan whose birth had not been registered- 4 According to
Professor Chung, if the foster parents give notification of birth, stating
that the orphan child is their own child, it should be reasonably construed that st.ch child acquires the status of adopted child in view of the
public policy of protecting an orphan's well-being. For this reason; he
disagreed with the 1967 decision.




  3 Kim Chu-su, Chnsok ch'inzok sangsokp6p [Aiticle by Article Commentary oh the
Law of Relative.; and Succession] (Seoul: Popmunsa, 1969), p. 409. Professor lam failed to
mention the 1967 decision in his book_
     Dr. Chung h retired and pow lives in the United States. He expressed his opinion in a
letter addressed to me on May 11, 1973, and in the subseqnent meeting on May 13, 1973.
Prepared by
Sung Yoon Cho
Senior Legal Specialist
Far Eastern Law Division
Law Library, Library of Congress
Waohinglun, pc 20540
July 1974

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