Interim Decision #2577
MATTER OF CHO
In Visa Petition Proceedings
A-31184541
Decided by Board April 19, 1977
(1) Beneficiary was born in Korea on June 21, 1960, and had lived there in the home of his
adoptive parents (petitioners) from 1968 to 1972. In 1972 the adoptive parents emigrated to the United States. In 1973, beneficiary was adopted by proxy when his name
was entered in the Korean Family Registry as the adopted child of the petitioner and his
wife.
(2) Even though the adoption was not formalized until after the adoptive parents had
emigrated to the United States, the adoption was valid under Korean law because the
registration provisions of section 878(1) of the Korean Civil Code had been complied
with, and because the documents had been examined by the Family Registrar and found
to comply with the provisions of section 881 of the Korean Civil Code.
{3) More fact that a preference classification is an incidental benefit of the adoption does
not raise a presumption the arinpfinn is invalid or entered into to evade the immigration
laws.
(4) This adoption meets the requirements of section 101(b)(1)(E) of the Immigration and
Nationality Act because the beneficiary had been validly adopted in Korea before the
age of 14 years, and be cause he had resided with the adoptive parents for a period of two
years preceding the adoption which satisfies the statutory requirement. See Matter of
M—, 8 I. & N. Dec. 118 (BIA 1958; A.G. 1959). The visa petition will be granted.
ON BEHALF OF PETITIONER: Pro se
B Y: Milhollan, Chairman; Wilson, Maniatis, and Appleman, Board Members
The lawful permanent resident petitioner applied for preference
status for the beneficiary as his adopted child under section 203(a)(2) of
the Immigration and Nationality Act. In a decision dated August 25,
1976, the District Director denied the petition on the ground that the
adoption, although perhaps technically valid under section 101(b) of the
Act, was nonetheless insufficient to support the accord of immigration
'benefits, since it "seemed" to have been entered into for the purpose of
evading the immigration laws. The petitioner appeals. The appeal will
to sustained.
The beneficiary, a native and citizen of Korea, was born on June 21,
1960. In 1968, at the age of eight years, she was taken into the home of
the petitioner and his wife. She lived with the petitioner and his wife as
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a member of the family unit until 1972, when the petitioner and his wife
immigrated to the United States, leaving the beneficiary and two
natural children in the care of relatives. In 1973, the beneficiary was
registered in the Korean Family Registry as the adopted child of the
petitioner and his wife. Our first inquiry on appeal must be whether
such a "proxy" adoption is valid under Korean law.
We have made reference to a memorandum of law from the Far
Eastern Law Division of the Library of Congress.' This memorandum
states that a "proxy" adoption, while not specifically described in the
Korean Civil Code of 1960, is clearly permissible under Korean law if the
specified notification and registration requirements are complied with.
Under section 878(1) of the Code, an adoption. is not deemed valid until
it has been registered in the Korean Family Register. In the case of the
adoption of a minor under the age of 15 years, the adoption must be
registered by the natural parents or guardian of the adopted child.
Section 881 of the Code states that a notification of adoption may be
accepted for registration in the Korean Family Register only after it
has been examined by the Family Registrar for compliance with all
relevant Korean law.
The petitioner has submitted a notification of adoption and a copy,
authenticated by the Family Registrar, of the Korean Family Register.
These two documents indicate that the beneficiary has been adopted by
the petitioner, that notification of the adoption was given by the natural
parent, and that this notification has been accepted by the Family
Registrar for registration in accordance with section 881 of the Code.
We find, therefore, that a valid adoptive relationship exists under
Korean law.
However, the Immigration and Nationality Act imposes additional
requirements which must be satisfied before an adoption, valid under
the laws of a foreign country, can support the grant of immigration
benefits. Under section 101(b), a "child" is defined, in relevant part, as
"an unmarried person under twenty-one years of age, who is—(E) a
child adopted while under the age of fourteen 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 . . . ."
Since the adoption concededly took place in 1973, the beneficiary has
been in the legal custody of her parents for at least two years subsequent to the adoption. In Matter of M—, 8I_ & N. Dec. 118 (BIA 1958;
A.G. 1959), the Attorney General held that the two-year cohabitation
requirement of section 101(b) is satisfied by a two-year period preceding
the adoption. Since the beneficiary lived with her parents for four years
' Memorandum from Dr. Sung Yuma Cho, Far Eastern Law Division, Law Library,
Library of Congress, received October 23, 1968.
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prior to their immigration to the United States, the two-year cohabitation requirement is thus satisfied. Similarly, the beneficiary was 13
years of age at the time of the adoption.
Despite the satisfaction of all the requirements of a valid adoption
under section 201(b), the District Director denied the petition. In so
doing, he relied upon the fact that the legal adoption took place after the
parents were in the United States. This "seen -tied] to indicate" to the
District Director "that the adoption was solely entered in the family
register to enable the beneficiary to emigrate." On appeal, the petitioner argues that the delay in the formal adoption was due to the
Korean legal requirement that the natural mother consent in writing to
the adoption. Despite repeated efforts, he argues, the natural mother
was not located until 1973. In a brief filed on appeal, the District
Director states that this new evidence would "in no way alter" his
original decision, which apparently was based solely on the fact that the
beneficiary was adopted "after the petitioner's entry."
We disagree that an adoption valid in every respect under section
101(b) may be disregarded by the District Director solely because it was
legally formalized after the petitioner's immigration to the United
States. The mere fact that a preference classification was an incidental
benefit to the adoption does not per se invalidate the adoption or raise a
presumption that the adoption is a sham, and entered into for the
purpose of evading the immigration laws of this country_ In designing
section 101(b)(1)(E), 'Congress inserted specific safeguards against ad
hoe adoptions for the purpose of evading the immigration laws. The age
limitation of 14 years and the two-year legal custody and cohabitation
requirements were inserted for this very purpose. See Matter of—,
supra. It is not for the District Director to impose stricter standards than
Congress. The District Director erred in denying the visa petition on the
sole ground that the adoption, admittedly valid in every respect under
section 101(b), was completed after the parents had entered the United
States. The petitioner's appeal will thus be sustained.
ORDER: The appeal is sustained, and the visa petition is granted.
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