Interiin Decision #2682
MATTER OF WONG
In Visa Petition Proceedings
A-21323067
A-21323068
Decided by Board December 6, 1978
(1) Under the provisions of Article 15 of the Marriage Law of the People's Republic of
China, all children born in China are legitimate from birth. See Chin Lau v. Kiley, 563
F.2d 542 (2 Cir. 1977). Matter of Lo, 14 I. Cr N. 379 (BIA 1973), overruled.
(2) Notwithstanding the legislative legitimation of all children born in the People's Republic of China, a parent-child relationship must be proved for visa petition purposes by
suitable evidence, including a birth certificate where available.
(3) Birth records are available for persons born in the People's Republic of China and
should be presented in the case of a visa petition submitted by a father on behalf of his
child born out of wedlock, in the absence of proof of unsuccessful efforts to obtain
documents.
ON BEHALF OF PETITIONER: ON BEHALF OF SERVICE:
Joseph S. Hertogs, Esquire George 1ndelicato
Jackson Sc Hertogs Appellate Trial Attorney
589 Washington Street
San Francisco, California 94111
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
The lawful permanent resident petitioner has appealed from the September 2, 1977, decision of the District Director denying the visa petitions filed on behalf of his alleged son and daughter under section
2193(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(2). 1
Thercodswilbman.
The petitioner is a 41 year old native and citizen of the People's
- -
Republic of China who was admitted to the United States on June 12,
1969, as a lawful permanent resident. The beneficiary, Do Sang Wong,
the petitioner's alleged son, is a 21-year-old native and citizen of the
We note that the Notice of Appeal was filed in this case on September 19, 1977,
although the record file was not received by the Board until almost 12 months later. No
orzplanation for this delay appears in the record. It is the responsibility of the District
Director, as the administrative officer having jurisdiction over the proceedings, to
Promptly forward the record to the Board when an appeal is filed.
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Interim Decision #2682
People's Republic of China. The, beneficiary, 01 Nar Wong, the petitioner's alleged daughter, is a 23-year-old native and citizen of the
People's Republic of China_ In his decision denying the visa petitions,
the District Director found that the beneficiaries were born out of
wedlock to the petitioner and Ng Sun Chui, who were married on
February 6, 1976, when the beneficiaries were 19 and 21 years of age,
respectively. The District Director concluded that the beneficiaries
were illegitimate at birth, and were not legitimated before the age of 18
years as required by section 101(b)(1)(C) of the Act, ? U.S.C_
1101(b)(1)(C). On appeal, the petitioner claims that, under the law of the
People's Republic of China, all children are legitimate at birth and the
decision of the District Director is erroneous as a matter of law.
In Matter of Lau, unreported, file A20 122 881 (BIA October 23,
1974), the petitioner, a native and citizen of the People's Republic of
China, appealed from the denial of a visa petition filed on behalf of his
son under section 203(a)(2) of the Act. The child was alleged to be the
issue of the petitioner's relationship with one Chin Dung You to whom,
it was conceded, the petitioner was never married. We there reaffirmed
our decision in Matter of Leo , 14 I. & N. Dec. 279 (BIA 1972), that, under
Article 15 of the Marriage Law of the People's Republic of China, the
petitioner had to "legally establish" paternity to .confer immigration
benefits upon the beneficiary as his legitimate child.
On appeal to the United States District Court for the Southern
District of New York, our decision in Matter of Lau was reversed, and
the case was remanded for further proceedings. Chin Lau v. Kiley,
410
F. Supp. 221 (S.D.N.Y. W76). The District Court, in-an.opinion written
by Judge MacMahon, found that Article 15 of the Marriage Law does
not require a legal procedure for establishing legitimacy
In our view, . . . Article 15 retains a paternity suit, which will be used, as in this
country, only when the putative father denies the relationship. The Board erred,
Therefore, in finding that such a procedure is necessary to determine the legitimacy of a
child born out of wedlock.
410 F. Supp. at 224. However, Judge MacMahon specifically declined to
find that Article 15 made all children legitimate for immigration purposes. He established, instead, a test of "family relationship":
It is, therefore, obvious that preferences are not to be granted unless it is shown that
a family relationship existed. Normally this is done by showing that the beneficiary is a
legitimate or legitimated child. However, in the present context; where those terms are
meaningless, it is disingenuous to insist on such a showing. Rather, it is sufficient if a
petitioner is able to prove the existence of the requisite family relationship as a matter
of fact.
Id. On appeal to the United States Court of Appeals for the Second
Circuit, the Court of Appeals affirmed the decision of the District Court
in a decision by Judge Waterman. Chin Lau v: Kiley,
563 F.2d 542 (2
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Interim Decision #2682
Cir. 1977). However, Judge Waterman went farther than did Judge
IVIacMahon and found that all children born in the People's Republic of
China were legitimate:
It is clear to us that the first paragraph of this Article [15] makes all children born in
China "legitimate." We are not persuaded by the government's argument that the
second paragraph of Article 15, dealing with paternity, makes the establishment of
paternity by means of some legal procedure a prerequisite to a child's legitimacy. Put
quite simply, the second paragraph says only that a man may not be charged with the
cost of maintaining and educating a child until it is proved that the man is the natural
father of the child. This, we believe, is quite distinct from the first paragraph of the
Article which is a legislative grant of legitimacy to all children born in the People's
Republic of China. 563 F.2d at 550.
The Service has informed us at oral argument in the present case that
they believe the decision of the Court of Appeals for the Second Circuit
in Chin Lau v. Kiley is applicable to the facts herein. We find the
reasoning of Judge Waterxnan's decision persuasive, and we find that
the decision correctly interprets the applicable Chinese law. We withdraw, therefore, from the contrary position expressed by this Bo and in
Natter of Lau and Matter of Lo, supra. We ennelnrie that, under the
provisions of Article 15 of the Marriage Law of the People's Republic of
China, all children born in China are legitimate from birth. Accordingly,
the District Director's contrary conclusion in this case is erroneous, and
will be reversed.
However, the issue of proving the parent-child relationship still remains for our decision. In this regard, the records before us for review
contain the following:
(1) a record of a sworn statement, dated November 11, 1976, by Lin Tat. Wong
concerning his relationship with Ng Sun Tsui and the beneficiaries;
(2) the results of a blood test performed on the petitioner on November 11, 1976;
(3) photographs of the petitioner with his wife and the beneficiaries, allegedly taken
between 1955 and 1976;
(4) the visa petition filed on behalf of the present petitioner in 1967, in which he names
the beneficiaries herein as his illegitimate children;
(5) a statutory declaration completed by the petitioner in 1968 in Hong Kong, in which
he names the beneficiaries herein as his children; and
(6) the marriage certificate of the petitioner and Ng Sun Tsui, dated February 6, 1976.
'We note that a visa petition submitted by a father on behalf of his child
ranist be accompanied by the birth certificate of the child. 8 C_ F. R-
04.2(c)(3). It appears that birth records are available from the People's
Republic of China, see vol.. 9, Foreign Affairs Manual, Appendix B,
"China, People's Republic Of," although they may be, at times, difficult
t 4c, obtain. Id. However, the Service may require proof of unsuccessful
ftfforts to obtain documents claimed to be unavailable, as well as the
S-ubmission of additional evidence, including blood tests. See 8 C. F.R-
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Interim Decision #2682
103.2(b)(1); see generally, Matter of Lau, Interim Decision 2558 (BIA
1976); Matter of Ng, 12 I. & N. Dec. 27 (BIA 1966).
The petitioner has also filed visa petitions on behalf of his wife and a
third child, Yee Nar Wong. It appears that both of these petitions have
been approved by the District Director. 2 However, these records are
not before us, and we cannot speculate as to the type or quantum of
evidence contained in those records that led to the approval of the visa
petition filed on behalf of Yee Nar Wong. Counsel for the petitioner
indicates in his brief on appeal that a thorough investigation was conducted concerning the petitioner's relationship to these beneficiaries at
the time of the issuance of a second-preference visa to the petitioner in
1969. However, not all of the evidence claimed by the petitioner to have
been submitted in connection with that proceeding has been made part
of the record before us. Specifically, the petitioner Maims to have submitted statements of both he and his father, letters, and facts concerning his trips to China.
We conclude that the record should be remanded to the District
Director for further proceedings consistent with the foregoing opinion.
On remand, the petitioner should be given an opportunity to submit any
additional evidence he may have in support of these petitions 3 or to ,
explain why no further evidence is available. The District Director
should then render a new decision and serve it upon the interested
parties in accordance with Matter of Li Ganoza, Interim Decision 2475
(BIA 1976) and Matter of To,
14 I. & N. Dec. 679 (BIA 1974),
ORDER: The record is remanded.
FURTHER ORDER: In the event of a decision which is adverse to
the petitioner, the record should be certified to the Board for review.
2 Yee Nar Wong was under the age of 18 years when the petitioner married his present
wife. Apparently, the District Director found that she was the petitioner's legitimated
child.
' The petitioner's wife, if admitted as a lawful permanent resident, may file a visa
petition on behalf of the beneficiaries If evidence to support her relationship to them h
more readily available to her than to her husband. Any questions in this regard should be
addressed to the Immigration and Naturalization Service.
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