Interim Decision #2896
MATTER OF SAUCEDA
In Visa Petition Proceedings
A-20724469
Decided by Board February 4, 1982
(1) At. the time of the petitioner's purported adoption of the beneficiary, Article 400
of the Civil Code of Tamaulipas, Mexico, provided for adoption only by persons "who
have no descendants."
(2) The United States citizen petitioner, who had a living natural child at the time of
the beneficiary's adoption, failed to shoW that the adoption in Tamaulipas, Mexico, was
in compliance with the Civil Code of that state, and, hence, did not establish that
beneficiary waned as a chid of petitioner under section 101(b)(1)(E) of the Immigration and Nationality Act, 8 U.S.C. 1101(b)(I)(E). Matter of Espinosa, 16 I&N Dec.
199 (BIA 1917), and Mila v. District Director,
494 F.Supp. 998 (D. Utah 1980), distinguished.
ON BEHALF OF PETITIONER: Alma L. Lopez, Esquire
809 South Saint Mary's Street
San Antonio, Texas 78205
Br: Milhollan, Chairman; Maidatis, Maguire, Morris, and Vacca, Board Members
The United States citizen petitioner has moved that we reopen the
above captioned case in order to reconsidek our decision of May 12, 1975,
in which we affirmed the decision of the District Director and denied the
petitioner's_ visa petition application. The motion will be denied.
In a per curiain order dated May 12, 1975, the -Board denied the
petitioner's appeal, citing Matter of Allman, 15 I&N Dec. 165 (BIA
1975). In that case the beneficiary was adopted in Matamoras, Tamaulipas, Mexico. Article 400 of the Civil Code of Tamaulipas provides for
adoption only by persons "who have no descendants." The petitioner
had two natural children. Therefore, the adoption was not valid and the
petition was properly denied because the beneficiary did not qualify as
the child of the petitioner under section 101(b)(1)(E) of the Immigration
and Nationality Act, 8 U.S.C. 1101(b)(1)(E).
In suiport of his present motion, the petitioner makes the following
contentions: (1) That recurrent trends in Mexican Civil Law no longer
consider the "no descendants" requirement mandatory for a valid
adoption. The petitioner points out that the Mexican State of Coahuila
in its Civil Code, contained a section which, in pertinent part, was
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exactly the same as Section 400 of the Tamaulipas Code and that in
1977, the Civil Code of Coahuila discarded the "no descendants" requirement at the time of adoption. (2) That the Mexican adoption court specifically declared that all "requisite legal demands were complied with, by
the proper procedure. . . ." The petitioner argues that the Mexican Court,
"waived" the "no-descendant" requirement and prkeeeded to declare the
adoption in full compliance with the law. (3) That the Board's decision in
Matter of Espinosa, 16 I&N Dec. 199 (BIA 1977), "clearly indicated that
the District Director could not declare invalid the action of a Mexican
Court, merely because of an alleged non-compliance with Mexican law."
The petitioner contends that the District Director's declaration of
"invalidity" was improper and submits that "Allmon can no longer be
considered as a viable precedent and the decision in the case at hand,
should be considered in light of Espinosa [sic]." (4) That Mila v. District
Director,
494 F.Supp. 998 (D. Utah 1980), concludes that the Service
and Board have been unduly restrictive. Petitioner contends that if a
bona Me parent-child relationship exists, then the important inquiry
must be the reality of the relationship and not the manner in which it
arises. (5) That the equitable doctrine of adoption by estoppel should be
applied in this case. Petitioner cites section 16.01 of the Texas family
code. (6) Petitioner argues that the beneficiary is eligible for "discretionary relief available pursuant to section 244(a) and (d) of the Act, 8 U.S.C.
1254(a) and (d), known as suspension of deportation." (7) That the
circumstances of this case "would also allow the exercise of the remedy
known as waiver of excludability, based on 212(c) of the Act, 8 U.S.C.
1182(c)." (8) Finally the petitioner contends that "under O.I. 242(a)(21)
the District Director may withhold or cancel deportation proceedings
against an alien who is seeking to enroll, or has carolled, in a course of
academic study, Under circumstances which would be applicable in this
cause; and under O.I. 103. 1(a)(i)(ii) the District Director may withhold
or cancel deportation -pro ceedings in compassionate cases under the
deferred action program."
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefits sought. Matter of Brantigan,
11 I&N
Dec. 493 (BIA 1966). In such proceedings, the law of a foreign country is
a.question of fact which must be proved by the petitioner if he relies on
it to establish eligibility fox an immigration benefit. Matter of Annang,
14. I&N Dec. 502 (BIA 19'73).
The immigration laws that we administer do provide for a United
States citizen parent to colder status on an adopted 'child under section
201(b) of the Act, 8 U.S.C. 1151(b). To establish that a beneficiary in
eligible for immediate relative status as an unmarried son or unmarried
daughter under section 201(b), the petitioner must show that the beneficiary once qualified' as his "child"-within the meaning of section 101(b)(1)
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of the Act. Matter of Coker, 14 I&N Da. '521 (BIA 1974). The term
"child," as defined by that section, includes an adopted child, section
101(b)(1)(E).
In this case, the petitioner, has failed to establish that the beneficiary
had been lawfully adopted. Article 400 of the Civil Code of Tamaulipas
in effect at the. time of the alleged adoption authorized only persons
"who do not have natural descendants" to adopt minor children. The
beneficiary's adoption was not in compliance with controlling law as the
petitioner and his spouse had a natural child living in May 1972.
The petitioner alleges that current trends no longer consider Allmon
as a viable precedent. However, he has not supported this allegation
with evidence that the Civil Code of Tamaulipas has amended its "no
descendants" requirement. ConseqUently, we find that Allmon is still
controlling. See. also Matter of Garcia-Rodriguez, 16 I&N Dec. 488
(BIA 1978).
Petitioner contends that "it is reasonable to conclude that the Mexican Court, in passing on the adoption in question, considered the requirements of [article] 400 and, having decided that the purpose of the
no-descendant requirenient was not applicable here, waived that
requirement." We fmd no indication that the Mexican adoption court
was made aware of the facts of this case.
Petitioner's reliance on Espinosa is misplaced. We stated in Espinosa
that the issue was "whether the state of Texas would recognize the
mutual consent divorce [decree before the Civil Registrar of Coahuila,
Mexico] as valid." The decree was improperly entered and subject to
possible annulment under Mexican law. However,' the Civil Code of
Coahuila explicitly provided that any such divorce decree would be
considered valid until such time as it otherwise might be declared . void
by court action. In reliance on this express statutory presumption of
validity, we found that Texas courts would accept the decree as valid.
There is no indication here that the Civil Code of Tamaulipas contains a
similar statute recognizing invalid adoptions as presumptively valid. On
the contrary, the Civil Code of Tamaulipas, on which we must rely,
expressly provides for adoptions only by persons "who have no descendants." Accordingly, the petitioner has not met his burden of establishing the fact of the foreign law. Matter of Annang, supra.
Petitioner's reliance on Mile is also misplaced. The court in Mile held
that the Board must recognize customary adoptions in foreign countries,
when such countries have no law governing adoptions and when the
courts of such countries would enforce customary adoption. Here the
Civil Code of Tamaulipas expressly provides for adoptions; Tamaulipas
is not a legal system or which only recognizes adoptions by
custom. Under section 101(b) of the Act, the Civil Code of Tamaulipas is
determinative of whether a qualifying relationship exists. Matter of
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Allman, supra; Matter of Garcia Rodriguez, supra. Petitioner has not
-
established a qualifying relationship under that law.
As to estoppel, we do not find the Texas doctrine of adoption by
estoppel applicable to Mexican adoptions.
Finally, in reference to petitioner's arguments on appeal regarding
suspension of deportation, waiver of excludability and withholding or
cancellation of deportation proceedings, we notethat these matters are
not relevant to these visa petition proceedings.
' Accordingly, the motion to reopen will therefore be denied.
ORDER The motion is 'denied.
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