HANDLEY

                                                             Interim Decision # 2764




                              MATTER OF HANDLEY

                          In Visa Petition Proceedings
                                      A-22352790
          Decided by Regional Commissioner October 12,' 1978
To qualify as an eligible orphan pursuant to section 101(b)(1)(F) of the Immigration and
  Nationality Act, as amended, 8 U.S.C. 1101(b)(1)(F), the beneficiary must have been
  adopted abroad by a United States citizen at least 25 years of age, who personally saw
  and observed the child prior to or during the adoption proceedings; or the beneficiary
  must be coming to the United States for adoption by such United States citizen or
  citizens who have or has complied with the preadoption requirements, if any, of the
  child's proposed residence. An alien orphan who is in the United States and has been
  adopted in the United States is not eligible for immediate relative classification as a
  child pursuant to section 101(b)(1)(F) of the Act.
ON BEHALF OF PETITIONER: George W. Boyle II, Esquire
                       8580 Ralston Road
                       Arvada, Colorado 80002



  This matter is before me on appeal from the District Director's
decision of June 16, 1978, denying the petition to classify the beneficiary as an immediate relative pursuant to section 101(b)(1)(F) of the
Immigration and Nationality Act, 8 U.S.C. 1101(b)(1)(F). The appeal
will be dismissed.
  Aliens classified as immediate relatives of United States citizens are
exempt quota limitations in applying for permanent resident status. A
child of a United States citizen is considered to be an immediate
relative. Section 101(b)(1) of the Act defines the term "child" to mean
an unmarried person under 21 years of age who is within one of six
categories. Section 101(b)(1)(F) is the category which describes the
circumstances by which an eligible orphan is defined as a child.
  Section 101(b)(1)(F) defines an eligible orphan child as:
 A child, under the age of fourteen at the time a petition is filed in his behalf to accord a
 classification as an immediate relative under section 201(b) of this title, who is an
 orphan because of the death or disappearance of, abandonment or desertion by, or
 separation or loss from, both parents, or for whom the sole or surviving parent is
 incapable of providing the proper care and has in writing irrevocably released the
 child for emizration and adoption; who has been adopted abroad by a United States

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  citizen and spouse jointly, or by an unmarried United States citizen at least twentyfive years of age, who personally saw and observed the child prior to or during the
  adoption proceedings; or who is coming to the United States for adoption by a United
  States citizen and spouse jointly, or by an unmarried United States citizen at least
  twenty -five years of age, who have or has complied with the preadoption requirements, if any, of the child's proposed residence: Provided, That the Attorney General
  is satisfied that proper care will be furnished the child if admitted to the United
  States; Provided further, That no natural parent or prior adoptive parent of any such
  child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or
  status under this chapter. (Emphasis other than provisos, supplied.)
  The petitioner is a United States citizen. He resides with his spouse
and the beneficiary in El Dorado, Colorado. The beneficiary is 2 years
of age, born in Yucay, Peru, on October 4, 1976. Her biological mother
was unable to provide for her, and on January 28, 1977, she irrevocably
released the child for placement in a home for abandoned children in
Ur ubamba, Peru, and for adoption. The petitioner's spouse was assigned guardianship of the beneficiary on January 26, 1977. The beneficiary traveled to the United States with the petitioner's spouse sometime during January 1977_ The record is silent as to what type of visa
the beneficiary presented to apply for admission to the United States.
The inspection of the beneficiary for admission was deferred by officers
at the port of entry. Upon arrival in Denver, the petitioner was
interviewed concerning the beneficiary's proposed stay. He said that
he intended to adopt the beneficiary in Colorado and apply for her to
reside permanently in the United States. He said that the beneficiary
had come without an immigrant visa because of an urgent medical
condition that required prompt attention. Based on this medical condition, the beneficiary was paroled into the United States under section
212(d)(5) of the Act, 8 U.S.C. 1182(d)(5), for "humanitarian reasons" on
February 9, 1977.
   On May 2, 1977, the instant petition was filed. Apparently, the Denver
officer misinterpreted the information provided in the petition and assumed that the beneficiary was residing abroad and coming to be
adopted; therefore, proof that the preadoption requirements of
Colorado had been met was requested. The petitioner instead submitted
a copy of a final decree which evidenced the final adoption of the beneficiary by the petitioners on September 1, 1977, in Boulder, Colorado. It thus
became evident that the beneficiary was already in the United States
and, therefore, could not be classified as a child—an eligible orphan—
under section 101(b)(1)(F) of the Act. The petitioner was informed that
he should seek nonpreference immigrant classification for the beneficiary. The District Director based his June 16,19!78, denial of this petition
on the fact that the beneficiary was not a child within the meaning of
section 101(b)(1)(F) of the Act because she had neither been adopted
abroad nor was she coming to the United States to be adopted.
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   On appeal, counsel for the petitioner claims that the beneficiary
meets the definition of child found in section 101(b)(1)(F), and raises
objections to the request that proof of compliance with Colorado
preadoption requirements be shown.
   Compliance with preadoption requirements is not the issue here. It
is acknowledged that the beneficiary has been lawfully adopted by the
petitioner. However, the beneficiary does not meet the Immigration
and Nationality Act definition of child as found in section 101(b)(1) at
subsection (F). The adoption of the beneficiary was accomplished in
Colorado, not abroad, and she is presently in the United States; therefore, it cannot be said that she is "coming to be adopted" here. Thus,
she is not the child of the petitioner within the meaning of the section
101(b)(1)(F) definition.
   It is apparent that the petitioner and his counsel are under the
incorrect assumption that the parole of the beneficiary in February
1977, was an assurance to the petitioner that any application that the
petitioner intended to file for the beneficiary after her arrival would be
approved. A parole under section 212(d)(5) of the Act is never used to
overcome the lack of an immigrant visa.
   Pursuant to section 212(d)(5):
  The Attorney General may in his discretion parole into the united States temporarily
  under such conditions as he may prescribe for emergent reasons or for reasons deemed
  strictly in the public interest any alien applying for admission to the United States,
  but such parole of such alien shall not be regarded as an admission of the alien and
  when the purposes of such parole shall, in the opinion of the Attorney General, have
  been served the alien shall forthwith return or be returned to the custody from which
  he was paroled and thereafter his case shall continue to be dealt with in the same
  manner as that of any other applicant for admission to the United States.
   The parole of the beneficiary for humanitarian reasons is unconnected to any later petition for benefits under the Act. She was not
eligible for classification as an immediate relative orphan at the time
application was made; therefore, the District Director was correct in
denying the petition. •
   ORDERS The appeal is dismissed.




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