Interim Decision #2686 *
MATTER OP HAZARD
In Visa Petition Proceedings
A-20878992
Decided by Board January J.7,1979
Decided by Board May 28> 1979
(1) Prior to 1974, the law on adoption in Haiti was governed by the Presidential Decreeof
1966, which authorized adoption of any child less than 16 years of age. Matter of
Mazard, Interim Decision 2686 (BIA January 17, 1979) overruled; Matter ofAladin,
Interim Decision 2425 (BIA 1975) overruled.
(2) Adoptions occurring in Haiti on or after April4,1974,are governed by the Presidential
Decree of April 4, 1974, which authorizes adoption of any child of less than 16 years
of age.
(3) Section 101(b)(1)(E) of the Immigration and Nationality Actincludes,in the definition
of the term "child," 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 2 years,
(4) The two-year requirement of section 101(b)(1)(E) with respect to residence may
include periods of residence accumulated prior to formal adoption. Matter of M—, 8 L &
N. Dec, 118 (BIA 1958;A.G. 1959), However, the two-year legal custody requirement
can only be satisfied by custody subsequent to the adoption. Matter of Lee,111. & N,
Dec. 911 (BIA 1966).
(5) "Where the beneficiary was allegedly adopted in Haiti in 1973 at the age of 12
years, the adoption is governed by the provisions of the Presidential Decree of1966,and
the petitioner is not precluded from establishing that the beneficiary was lawfully
adopted under Haitian law. The record is remanded for additional evidence that the
adoption document submitted by the petitioner in support of the visa petition constitutes a final decree of adoption and also that he meets the residence and legal custody
requirements of section 101(b)(1)(E).
ON BEHALF OF PETITIONER:Pro se
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
BEFORE THE BOARD
(January 17, 1979)
The United States citizen petitioner applied on July 29, 1977, for
immediate relative status for the beneficiary as his adopted child under
section 201(b) of the Immigration and Nationality Act, 8U.S.C.1151(b).
This petition was denied by the District Director on September 2,1977,
•Replaces #2686 decision of January 17,1979.
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on the ground that the adoption was in contravention of the lawsof Haiti
and therefore not recognizable for immigrationpurposes. Anappeal was
filed from that decision. Oh November29,1977, weremanded the record
for further proceedings. On July 5, 1978, the Acting District Director
reaffirmed the District Director's decision of September 2, 1977, and
certified his decision to us for review. The petitioner requests reversal
and the granting of the petition.
The beneficiary is a 17-year-old native and citizen of Haiti. Her date of
birth is September11, 1961. In support of the petition, the petitioner
presented evidence that he adopted the beneficiary in Haiti on May 15,
1973.
The petitioner contends that the Presidential Decree of April4,1974,
governs this adoption and not the decree of 1966 discussed in our
decision in Matter ofAladin, Interim Decision 2425 (BIA1975). Which
decree is applicable is determinative in this case since the decree of
April 4,1974, allows adoptions for the benefit of any child less than 16
years of age while the decree of 1966 authorizes adoptions only for the
benefit of any children less than 6 years ofage. Thebeneficiary wasless
than 12 years of age on May 15,1973.
On remand the District Director obtained a translation of the Haitian
adoption decree of 1974. The District Director also obtained a
memorandum fromthe Library of Congress concerning retroactivity of
the 1974 decree. Our review of both documents satisfies us that the
claimed adoption of May 15,1973,1 is not governed by the 1974 decree
and is therefore in contravention of the applicable Haitian legal provisions. Since the adoption is not recognizable for immigration purposes
on this ground, we need not address the legal custody requirement in
section 101(b)(1)(E) of the Act, 8 U.S.C. 1101(b)(1)(E). Accordingly, we
will affirm the Acting District Director's decision denying this petition.
Considering the fact that the law of adoption in Haiti has changed, a
few comments are proper. The documentation available to the Board
indicates that the decree of 1966 referred to inMatter ofAladin, supra,
is determinative of all adoptions in Haiti occurring after its publication
and before April 4, 1974. The 1974 decree abrogates the provisions of
the 1966 decree inconsistent with its provisions but does not repeal the
1966 decree. Adoption in Haiti is a judicial act. Consequently, only
certified copies of a court order or judgment approving theadoption will
be considered proper evidence of an adoption in Haiti.
ORDER: The Acting District Director's decision of July 5, 1978, is
affirmed.
1
The petitioner in the notice of appeal dated July 22,1978, does not challenge that the
date of the beneficiary's adoption is May 15, 1973.
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ADDENDUM
TRANSLATION FROM THE FRENCH
Presidential Decree of April 4,1974
DECREE
Jean-Claude Duvalier
President for Life of the Republic
Whereas. • . . the child is at the center of attention of the family law;
Whereas the evolution of our laws and the provisions on public order
of our constitution, establishing that every decision of justice be motivated, make it possible to fill the gaps and to amend some provisions of
Decree of March 25, 1966, on adoption;
Whereas there is an urgent need to expand the content of said decree,
through a more logical and rational application of its text, and particularly to ensure that in his or her new family the adopted shall possess
the same rights and obligations as those resulting from a biological,
legitimate, and natural filiation;
In view of the Report of the State Secretary of Justice;
And after deliberation in the Council of State Secretaries;
DECREES
Art. 1. Adoption is a solemn act which creates between a person and a
child who is not biologically his or her child a legal relationship similar to
that resulting from paternity and filiation.
It is authorized in favor of minors less than 16 years old, whenever
there are justified reasons resulting in real and sure benefits for the
adopted.
Art. 2. Adoption is permitted only by persons of either sex over 35
years of age. Nevertheless, it can be requested jointly by two spouses
who are not separated and at least one of whom is over 35 years old,
provided that they have been married for more than 10years and donot
have children of their own.
At the moment of adoption, the adopters should have neither children
nor descendants.
The adopters must be 19 years older than the persons they intend to
adopt, except when the latter are children of one of the spouses. In this
case the minimum age difference should be 10 years; it may be further
reduced by dispensation from the President of the Republic.
Art. 3. Except in case of dispensation by the President for Life of the
Republic, adoption is permitted only when there are no legitimate or
natural descendants.
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Art. U. The existence of adopted children does not hinder new adoptions by the same adopter, provided that the latter can establish that he
or she has economic resources to meet his or her obligations.
Art. 5. A Haitian may adopt or be adopted by a foreigner. Adoption
does not cause a change in the nationality of the adopted.
Nevertheless, a foreigner adopted by a Haitian may acquire the
Haitian nationality through a declaration renouncing his or her foreign
nationality before the parquet of the civil court of his or her residence
when he or she comes of legal age.
A record of this declaration shall be sent to the Department of Justice
which shall publish it in the Moniteur, stating that said person is a
Haitian pursuant to the law.
Art. 6. If the father and mother of the minor to be adopted are still
alive, the consent of both is required for the adoption. If one of the
parents is deceased or incompetent to express his or her will, the
consent of the other parent shall be sufficient.
If the parents are divorced or separated, the consent of the spouse to
whom was granted the divorce or separation as well as the guardianship
of the child shall be sufficient; nevertheless, if the other parent did not
give consent, he or she shall be notified of the act of adoption and it shall
not be approved until at least 30 days after the notification. If during
this period the spouse notifies the registry of his or her opposition, the
court shall hold a hearing before it makes a decision.
Art. 7. If adoption is requested jointly by both spouses, who have
been married 10 years, are not separated, and one of whom is over 85
years old, the age difference requirement of 19 years can be reduced by
dispensation granted by the President of the Republic.
Art. 8. In case of death of the adopter, or of both adopters when it is
made jointly, a new adoption may be pronounced.
Art. 9. If the father and mother of the minor to be adopted are still
alive, the consent of both is required for the adoption.
Provided that one of the parties is deceased or legally incompetent to
express his or her will, the consent of the other party shall be sufficient.
Art. 10. The communal magistrate or the president of the communal
commission of the domicile of the adopted legally represents minors
with unknown father and mother and consents to their adoption, notwithstanding the provisions of Decree-Law of December 3,1973, which
regulates the statute on minors in children's homes.
Art. 11. In the cases mentioned in the preceding articles, the consent
is given in the act of adoption itself or by a separate act authorized
before a notary, the justice of the peace of the domicile of the adopter or
of the ascendents of the adopted, or, abroad, before a Haitian diplomatic
or consular officer.
Art. 12. When the minor has neither father nor mother, or if they are
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legally incompetent to express their will, the consent is given by the
Conseil de Famille (Family Council).
Art IS. Adoption creates the same rights and obligations as those
proceeding from legitimate or natural filiation.
Art. U. The adopted and his or her legitimate or natural descendants
possess the same inheritance rights in thefamily of the adopter asthose
of a legitimate or natural child.
Art. 15. Adoption grants to the adopted the name of the adopter, in
addition to his or her original name. When both the adopter and the
adopted have the same family name, no change will occur inthe name of
the adopted. At the request of the adopter the court can approve
modification in the given names of the adopted. In case of adoption by
spouses, the adopted takes the husband's name.
Art. 16. The adopted remains in his or her natural family and retains
all his or her inheritance rights in that family. *
Art. 17. In relation to the adopted, the adopter possesses the rights
and obligations provided by the Civil Code in the law on paternal
authority.
In case of interdiction, of judicially established absence,or of death of
the adopter when the adopted is still a minor, the paternal authority
reverts in full to the minor's ascendants.
Art. 18. The bond of kinship resulting from the adoption extends to
the children of the adopted.
Art. 19. Marriage is prohibited between:
The adopter, the adopted and his or her descendants;
The adopted and the spouse of the adopter and reciprocally between
the adopter and the spouse of the adopted;
The children adopted by the same individual;
The adopted and the children which could be born to the adopter.
Nevertheless, these prohibitions can be lifted for serious reasons by
dispensation from the President of the Republic.
Art. 20. The adopted and his or her descendants do not acquire any
inheritance right on the assets of the adopter's parents. But they possess over the succession of the adopter the same rights granted to
legitimate and natural children or descendants.
Art. 21. The adopter shall provide for the support of the adopted if
need be, and vice versa.
The obligation to provide support continues between the adopted and
his or her [natural] parents. Nevertheless, the father and mother of the
adopted are not obliged to provide support unless the adopted cannot
obtain it from the adopter.
Art. 22. If the adopted dies without descendants, the property donated by the adopter or collected in his or her succession and whichexist
in nature revert to the adopter or the adopter's descendants at the
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moment of the death of the adopted, with obligation to pay the debts
and without affecting the rights of third persons. All other assets of the
adopted revert to his or her original parents.
Art. 23. If the adopter lives after the decease of the adopted, and the
children or descendants of the adopted also die without leaving descendants, the adopter collects only the property donated by him or her.
Art. 2U. The person who intends to adopt and the legalrepresentative
of the minor, accompanied by the minor, shall appear before the justice
of the peace of the adopter's domicile to put upon record, free of
charges, their respective consent. However, if the adopter is a
foreigner, they shall appear before the justice of the peace of the
domicile of the adopted.
The adopter shall establish through documents the age difference
required between the adopted and himself or herself, and shall submit a
recent medical certificate to show that heor she is freeof any contagious
disease.
Art. 25. The adoption act shall be approved in Haiti before the civil
court of the jurisdiction of the adopter, or in the case of a foreign
adopter, before the civil court of the domicile of the adopted.
Art. 26. The Court assembled in Chamber of Council shall verify,
considering the written opinion of the Public Ministry [Public Attorney]:
1) If all the formalities of the law are observed;
2) If the adoption is based on justified causes and is inthe true interest
of the adopted.
Art. 27. After deliberations, the Court shallpronounce a decision that
there is or is not adoption.
In the first ease, the content of the decree of judgment should be in
accordance with the provisions of article 812 of the Code of Civil Procedure.
Art. 28. If the petition for adoption is denied, the parties involved
may, within 30 days after the rendering of the judgment, submit it to
the Court of Appeals, which shall examine it in the same way asdid the
Civil Court.
By means of a founded resolution the Court of Appeals shall either
confirm the decision or decide to grant the adoption.
Art 29. In case of a favorable decision the PublicAttorney may filean
appeal before the Civil Court and the resolution shall be given in the
manner described above.
Art. 30. The appeal on cassation against the decision rejecting the
petition for adoption shall be made within 30 days fromthe notification
of the resolution, in the manner established by the Code of CivilProcedure in matters of appeal to higher court.
Art.31. Only the judgment or resolution which approves the adoption
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is pronounced in open court. The content of the decree is recorded by
the Officer of Civil Status of the place of adoption in a Special Register
at the request of the Commissioner of Government.
Art. 32. Adoption produces its effects only after the fulfillment of the
formalities established in article 812 of the Code of Civil Procedure.
Nevertheless, the parties are joined together from the moment of the
act of adoption. Adoption may not be opposed by third parties except
after the recording of judgment or of the resolution granting the adoption.
Art. S3. If the adopter dies after the adoption act has been received
and the request granting the adoption has been presented to the Civil
Court, the examination shall continue and adoption shall be admitted if
there is one; but the court may, if it believes the adoption to beinadmissible, return all the records and documents to the Public Attorney.
Art. 3U. The competent Civil Court may pronounce the annulment of
adoption for serious causes at the request of the adopter, of the adopted
if he or she is of legal age, or of the Commissioner of Government if the
adopted is a minor of more than 13 years of age.
The judgment of the Court can be appealed in all cases.
The annulment discontinues from that moment thereafter all the
effects of adoption.
Art 35. The present decree repeals all laws or provisions oflaws,all
decrees or provisions of decrees, all decree-laws or provisions of
decree-laws which are contrary to this decree, and shall be published
and executed by the State Secretaries of Justice and of Social Affairs,
each in the matters related to its jurisdiction.
Given at the National Palace, Port-au-Prince, April 4,1974.171years
of Independence.
Jean-Claude Duvalier, . . . .
Translated by Rubens Medina, Chief, and
Dario C. Perreira, Legal Research Assistant
Hispanic Law Division
Law Library, Library of Congress
January 1978
BEFORE THE BOARD
(May 23, 1979)
On January 17, 1979, we affirmed the decision of the Acting District
Director denying the visa petition filed on behalf of the beneficiary as
the petitioner's adopted child under section 201(b) of the Immigration
and Nationality Act, 8 U.S.C. 1151(b). Matter of Mazard, Interim
Decision 2686 (BIA 1979). Upon our own motion, we will reopen the
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proceedings and withdraw our prior decision in this case. See 8 CF.R.
3.2,
The petitioner is a 50-year-old native of Haiti and citizen of the United
States who seeks immediate relative status on behalf of the beneficiary,
a 17-year-old native and citizen of Haiti. In support of his visa petition
filed on July 29, 1977, the petitioner submitted the beneficiary's birth
certificate and a translation of a document entitled "Adoption Act." This
document states, in relevant part, that the petitioner, on May 15,1973,
declared that he was "willing to adopt as his own daughter the minor
Ketly Hazard, twelve years of age" and that the petitioner "declare
adopt and as a concret act adopt the minor Ketly Hazard [sic]." In his
decision denying the visa petition, dated September 2,1977,the District
Director, relying on our decision in Matter ofAladin, Interim Decision
2425 (BIA 1975), found that, under the law ofHaiti, an adoption isvalid
only if it takes place before the child reaches the age of 6. The
petitioner appealed from this denial, claiming that the law regarding
adoption in Haiti had been revised to raise the age at which a child could
be adopted to 14 years. In a decision dated November 29, 1977, we
noted the fact that a new Haitian adoption law was enacted under a
decree of April 4,1974. We remanded the record to the District Director
for clarification in light of the statement in the adoption papers submitted by the petitioner that the adoption was issued pursuant to the
Presidential decree of April4,1973. On July 5,1978, the Acting District
Director again denied the visa petition, finding that the law regarding
adoptions in Haiti had changed on April 4,1974, and, accordingly, the
beneficiary's adoption by the petitioner on Hay 15,1973, was governed
by the Board's decision in Matter ofAladin, id. The Acting District
Director certified his decision to us for review, and, in Matter of
Mazard, supra, we affirmed his denial of the visa petition.
On April 10, 1979, we requested clarification from the Library of
Congress as regards the age by which a child must be adopted under
Haitian law. In a letter dated Hay 3, 1979, Armando E. Gonzalez,
Assistant to the Chief of the Law Library, Hispanic Law Division,
responded, in pertinent part, as follows:
Prior to 1974 the law on adoption in Haiti was found within the Decree of February
25, 1966 (Le Moniteur, Mar. 18, 1966, Extraordinary Issue). Concerning the age at
which a child could be adopted, that decree provided:
Art. i. Adoption is the act whereby a person takes [as his or her own] a child who
is not his or her natural issue. This act is authorized to the benefit of any child of less
than sixteen years of age, as long as the adopter shows just motives and this is
advantageous to the adopted child.
This decree of 1966 was superseded by the one of April 4,1974 (JLeMoniteur, Apr. 18,
1974), presently in force. Article 1, paragraph 2 of this decree sets the same age
limitation for adoption as that stated in the previous decree.
In light of this new translation of the law of adoption in Haiti, we will j
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overrule our prior decision in Matter of Aladin, supra, insofar as it
required that a valid adoption in Haiti could only occur when the child to
be adopted was under the age of 6years. Consequently, the petitioner in
the present case, having adopted the beneficiary at the age of 12years,
is not precluded from establishing that the beneficiary qualifies as his
adopted child under section 101(b)(1)(E) of the Act, 8 U.S.C. 1101
(b)(1)(E).
Section 101(b)(1)(E) defines the term "child" to include an unmarried
person under 21 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. . . .
The two-year requirement with respect to residence may include
periods of residence accumulated prior to formal adoption. Matter of
M—f 8 1 . & N. Dec. 118 (BIA1958; A.G. 1959). However, the two-year
legal custody requirement can only be satisfied by custody subsequent
to the adoption. Matter ofLee, 111. & N. Dec. 911 (BIA1966).Although
the petitioner is not precluded from establishing that the beneficiary
was validly adopted under Haitian law, we find it necessary to remand
the record to allow the petitioner an opportunity to present evidence
that he has met the residence and legal custody requirements of section
101(b)(1)(E). We note also that the document submitted by the petitioner as evidence of the beneficiary's adoption does not clearly indicate
that it is a final court judgment. Certain of the language contained in the
translation of that document indicates that it may be merely a declaration of intent to adopt. On remand, the petitioner should be given an
opportunity to present additional evidence that the adoption document
constitutes a final decree of adoption, including, if it is deemed necessary by the District Director, a new translation of that document.
ORDER: The record is remanded to the District Director for further
proceedings consistent with the foregoing opinion and the entry of a new
decision.
670
16 I. & N. Dec. 662
MAZARD
Decided July 1, 1979
Board of Immigration Appeals · decided 1979-07-01
Applies 8 U.S.C. § 1101 (§ 101 of the Immigration and Nationality Act of 1952 (McCarran-Walter)) · 8 U.S.C. § 1151 (§ 201 of the Immigration and Nationality Act of 1952 (McCarran-Walter))
Decided 1979-07-01