1.11VeL1111. ircArs,
MATTER OF LEE
In Visa Petition Proceedings
A-21086636
Decided by Board May22, 1978
(1) Validity of adoption for immigration purposes requires, inquiry into law of jurisdiction
where adoption occurs.
(2) Validity of adoption in Taiwan in 1960 determined by the Civil Code of the Republic of
China.
(3) While there is no provision in the Civil Code pertaining to categories of adoptable
relatives, a general principle of Chinese customary law in the ease of a legal adoption
(the institution of an heir) was that the adopting party be of the generation immediately
above the adoptee; and in the absence of a showing to the contrary this rule is deemed
applicable to adoptions for the cairn of charity as well.
(4) Visa petition properly denied where the petitioner failed to establish that his alleged
adoption of his granddaughter was valid under the Jaw of Taiwan in 1960,
ON BEHALF OF PDTMONER: Pro se
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
The petitioner has appealed from a decision of the District Director,
dated February 10, 1977, denying a visa petition filed on behalf of his
alleged adopted daughter under section 203(a)(2) of the Immigration and
Nationality Aet, 8 U.S.C. 1152(a)(2). The appeal will be dismissed.
The District Director denied the petition for the reason that since the
petitioner is the grandfather of the beneficiary (for whom he has
assumed guardianship and maintenance functions), there is no immigration status to which the beneficiary is entitled based upon that relationship.
The petitioner maintains on appeal that he a_ dolted the beneficiary as
his own child when she was two years old because her mother had
remarried and her father had died. He has submitted affidavits from two
persons who were present at his home on May 5, 1960, when he announced that he had adopted the beneficiary. He has also submitted a
document from a notary public in Taiwan certifying that the beneficiary's mother and grandfather mutually agreed that the grandfather
would take over the functions of guardianship and maintenance for the
beneficiary.
511
LA AbC1 AL11 LGllil1VLL 77- ..
The petitioner claims that since he has functioned as parent to the
beneficiary for 17 years, she is entitled to immigration benefits as his
adopted child. In determining whether an adoption will be recognized
for immigration purposes, our first inquiry is whether the adoption is
valid under the law of the juris diction where it occurred. Matter of
Kwok, 14 I. & N. Dec. 127 (BIA 1972); Matter of Lau,
10 I. & N. Dec.
597 (BIA 1964). In this case, the Civil Code of the Republic of China
provides the applicable law in effect in Taiwan in 1960.
The Board has previously held that an adoption of a grandchild by a
grandparent which allegedly took place in China in 1927 conferred no
immigration benefits because such an adoption was contrary to Chinese
law. See Matter of Wong Setoo, 12 I.& N. Dec. 484 (BIA 1967). Our
-
holding was based upon a memorandum from the Far Eastern Law
Division of the Library of Congress, dated July 26, 1967, which advised
the Board that, although there was no statutory provision in the Civil
Code of the Republic of China pertaining to categories of adoptable
persons, there was judicial authority to the effect that adoptions between certain persons related by blood would not be permitted under
the Civil Code.
Matter of Wong Setoo, supra, would appear to resolve the issue pre-
-
sented here. However, an examination of that case and the accompanying memorandum indicated that the judicial interpretation cited therein
specifically precludes adoptions between certain collateral relatives
rather than lineal relatives as is the case with the grandparentgrandchild relationship.
In an attempt to resolve this question, we requested the assistance of
the Library of Congress. In a memorandum dated June 3, 1977, the
head of the Far Eastern Law Division stated that there appears to be a
general principle of Chinese customary law that the rank (generational
order) of the parties to an adoption should be the same as that which
exists between a parent and a c.bild. The author states that Chinese
tradition recognized two types or a doption: legal adoption (the institution of a male heir) and adoption for the sake of charity. In the case of
legal adoption, the adopting party had to be of the generation immediately above the person to be adopted. Thus, a grandparent would
not be able to effect a legal adoption of a grandson. Whether this rule
also applied in the case of adoptions for the sake of charity is unclear,
according to the memorandum. The author goes on to say, at page 28:
(Me are of the opinion that the question of whether a grandfather could have adopted
his granddaughter under the law of the Republic of China can best be resolved by a
decision of a Chinese court. Although oar sources tend to suggest that such an adoption
would not have been allowed because it would have disturbed the order of the generations, there is no source which clearly and indisputably permits such a conclusion. The
further question of whether such an attempted adoption would be void or merely
voidable could be answered only In the light of a knowledge of the basis the Chinese
512
Imterim Decision #2649
court used for its decision in answering the question of whether the law permitted such
an adoption.
We have held that an adoption must conform to the applicable law of
the jurisdiction where it allegedly occurred as well as to the statutory
requirements of section 101(b)(1)(E) of the Act, U.S.C. 1101 (b)(1)(E).
See Matter of Dhillon, Interim Decision 2620 (BIA 1977); Matter of
Annang, 14 I. & N. Dec. 502 (BIA 1973).
In view of the foregoing, we agree with the District Director that the
petitioner has not established that the beneficiary qualifies as his
"adopted" child since he has failed to show that such an adoption would
be valid under the Civil Code of the Republic of China as it existed in
1960. The existence of a bona fide family unit between the petitioner and
the beneficiary does not entitle the beneficiary to second-preference
status if she does not meet one of the statutory definitions of "child" set
out in section 101(b)(1) of the Act, 8 U.S.C. 1101(b)(I). See Matter of
Lee,
11 I. & N. Dec. 911 (BIA 1966). That the parties are related by
blood as grandparent and grandchild does not confer any status recognized by our immigration laws. We are not awzre of any authority for
the proposition that the assumption of guardianship , and maintenance
functions towards a minor child is the equivalent 'of an adoption or
comparable legal procedure which creates a pparent-child relationship
within the meaning of section 101(b)(1). Compare Matter of Lee, Interim
Decision 2606 (BIA 1977).
Although we are dismissing the appeal, it is without prejudice to the
filing of a new petition in the event that the petitioner acquires evidence
that the alleged adoption would be valid under the law in force in
Taiwan in 1960.
ORDER: The appeal is dismissed.
513
