FAKALATA

                                                             Interim Decision #2899




                          MATTER OF FAKALATA
                          In Visa Petition Proceedings
                                      A-22464956
                       Decided by Board March 10,            1982

(1) In order to prove that a customary adoption is valid for immigration purposes, the
  petitioner must establish that the adoption creates a legal status or relationship which
  is recognized by the government of the place where it occurred as carrying with it
  substantial legal rights and obligations.
(2) Notwithstanding that the Crown Solicitor of Tonga is of the opinion that customary
  adoptions in that country create a new parent and child relationship, the facts indicate
  that this relationship is nett archaise of the natural parents, does not give the adopted
  child rights and duties comparable to a natural legitimate child, and does not have any
  legal effect under Tongan law.
(3) Where the petitioner has failed to prove that customary adoptions in Tonga create
  a parent and child relationship which establishes legal rights and obligations that are
  sanctioned by Tongan law, such adoptions are not recognized as valid under United
  States immigration laws. Matter of Palelsi, 

 (BIA 1979) reaffirmed.
(4) Although a Tongan customary adoption was recognized as valid for immigration purposes in Mile v. District Director of Denver, Colorado, 

 (D. Utah
  1980), that decision is not binding in cases, as the instant one, arising outside of the
  jurisdiction of the District of Utah.
ON BEHALF OF PETITIONER: Terry J. Habash, Esquire
                                Simmons and Ungar
                              417 Washington Street
                              San Francisco, California 94111
BY:   Milhollan, Chairman; Manietis, Maguire, Morris, and Vacca, Board Members


  The lawful permanent resident petitioner applied for preference status on behalf of the beneficiary as his adopted son under section 202(a)(2)
of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(2). In a decision dated October 1, 1979, the District Director denied the petition.
The petitioner has appealed from that decision. The appeal will be
dismissed. -
  The petitioner is a 72-year-old native and citizen of Tonga. The beneficiary is also a native and citizen of Tonga who was born the legitimate
son of the petitioner's cousin on June 80, 1061. At the age of 9 months,
the beneficiary was taken into the petitioner's home and was raised as a
                                           213
Interim. Decision #2899

member of his family. The petitioner argues that under these circumstances the beneficiary qualifies as his adopted son under the customary
law of Tonga_
  The District Director denied the petition on the ground that the
"adoption" did not create a legal status or relationship under Tongan
law and therefore was not legally valid. In reaching this conclusion, he
relied on our decision in Matter of Palelei, 

 (BIA 1979),
where we found that a customary adoption in Tonga would not be considered valid for immigration purposes: In that decision we noted the
opinion of the Crown Solicitor of Tonga which stated that a customary
adoption was not recognized as legally valid under the law of that country.
  On appeal, the petitioner has submitted another opinion from the
Crown Solicitor of Tonga dated July 18, 1980,-which states, in pertinent
part:
 In Tonga, there is no reported law" concerning parental rights and duties and children's
 rights and duties•when customarily adopted. Tongan customary adoptions are an important aspect of our traditional culture and continue to be practiced today very commonly.
 There is no need for anyone to go to the courts to enforce parental rights or duties or
 children's rights or duties because everyone understands that customarily adopted
 children are treated in all respects is if they were legally adopted except that they
 cannot inherit. Even illegitimate children adopted according to our statutory law cannot
 inherit, but they also are considered legally adopted_
 Customary adoptions used to [sic] prior to our Constitution allow the adopted children
 to succeed to estates and titles, but the Constitution forbade the inheritance or succession by adopted children. But, the Constitution did not outlaw customary adoptions.
 They have continued until this day. Many families in Tonga have one or more members
 who are adopted. The adopted children cannot succeed to the estates of their parents,
 but in all other ways, they are considered the real children of their adopting parents.
 Such adoptions have the effect in Tonga of creating a parent and child relationship_
  Accordihg to the petitioner, the Crown Solicitor's statement that customary adoptions create a parent and child relationship indicates that
such adoptions are legally recognized in Tonga. Citing our decisions in
Matter of Ng, 

 (BIA 1972), and Matter of Yue, 

? (BIA 1968), he notes that the Board has previously recognized
customary adoptions as valid for immigration purposes, He therefore
contends that we should overrule our decision in Mader of Palelei,
supra, and find his customary adoption of the beneficiary valid for immigration purposes. After careful consideration, we decline to so act.
  The Board has indeed accorded preference status based upon a claimed'
customary adoption under Chinese law. See Matter of 'Rodriguez, 

 (BIA 1973); Matte• of Poon, 14,I&N Dec. 155 (BIA 1972);
Matter of Ng, supra; Matter of Yue, supra.
  However, the customary law applied in those cases consisted of an
established system of law which was based on the Ching Code. The law
set forth specific rules relating to adoption and was recognized in the
Chinese courts as determinative of the validity of customary adoptions

                                         214
                                                         Interim Decision #2899
  and the legal rights and duties of the parents and children involved in
  them. See Matter of. Poon, sizpra; Matter of Ng, supra; Matter of Chin,
  

 (BIA 1967). Thus;_ where we have found that the
  claimed adoptions did not comply with the provisions of that customary
  law, we have considered them invalid for immigration purposes. See
  Matter of Lee, 

(BIA 1975).
     On the other hand, in countries where adoption is practiced according
  to local custom, but does not create substantial legal rights and obligations which are sanctioned by the government as having legal force, the
  Board has declined to give such customary adoptions recognition. See
' Matter of Benjamin, 

 (BIA 1976); Matter of Rehman,
  

 (BIA 1975); Matter of Mozeb, 

 (BIA
  1975); Matter ofBh,egani, 

 (BIA 1975); Matter of Kong,
  

 (BIA 1974), motion to reconsider denied, Matter of
  Kong, 

 (BIA 1975); Matter of Ashree, Ahmed and
 Ahmed, 14 _UN Dec. 305 (BIA 1973); Mattel' of Boghdadi, 

 (BIA 1968); Matter of B-, 

 (BIA 1961).
     We must therefore determine whether customary adoption in Tonga
  creates a legal status which is recognized by the government in that
  country as carrying with it substantial legal rights and obligation& The
  evidence which best indicates the Tongan government's position regarding customary adoption consists of the two opinions offered by the Crown
  Solicitor. In the first of those opinions, which we cited in Matter of
  Palelei, supra, the Crown Solicitor unequivocally pronounced that "there
  is no provision in our law for the adoption of children born legitimately"
  and that a customary adoption "is not recognized as legally valid under
  Tongan law." He further notes in his second opinion that there is no
  reported law concerning the rights and duties of parents or children
 "involved in customary adoptions. This lack of judicial law is attributed
  to the fact that "everyone understands that customarily adopted children are treated in all respects as if they were legally adopted except
  that they cannot inherit." In conclusion, the Crown Solicitor states that
  customary adoptions have the effect in Tonga of creating a parent and
  child relationship.
     Other evidence relating to the legal effect of customary adoptions in
  Tonga includes a statement from Mr. William Clive Edwards, who states
  that he is a licensed lawyer• of the Supreme Court of Tonga, and a
  monograph entitled "Tongan Adoption." Morton, Tongan Adoption, in
  Transactions in Kinship—Adoption and Fosterage in Oceania 64 (L Brady
  ed. 1976). Mr. Edwards asserts that the law "in Tonga only enables
  illegitimate children to be adopted and it does not allow for adoption of             ,


   legitimate issues." Mr. Morton offers the following statement in regard
   to adoption transactions in -Tonga:
  The Tongan government sanctions only a few of these adoptions. Few applications for
Interim Decision #2899
  legal adoption are made to the courts because the circumstances of Tongan adoption are
  often incongruent with the European model of adoption applied in the courts.
Morton, supra, at 65.
  According to these sources, the statutory law of Tonga only provides
for the adoption of illegitimate children and does not officially recognize
the adoption of legitimate children as establishing any rights or duties of
the parties. involved.' From this we must conclude that customary
adoptions, which are apparently accomplished without the benefit of
any ceremony or formal proceedings, do not create a legal status or
relationship under Tongan law.
   The petitioner argues that the Crown Solicitor has indicated that
customary adoptions are legally recognized in Tonga by his statement
that these adoptions create a parent and child relationship. However,
our examination of Mr. Morton's treatise on adoptions in Tonga persuades us that the parent and child relationship resulting from a customary adoption does not carry with it such rights and obligations as we
would characterize as legally sanctioned. For example, he states that
lijn contrast to Western practices of child rearing, the rights and duties
of jural parenthood extend to a large number of kinsmen, neighbors,
and friends." Morton, supra, at 65. He further explains that children
are considered to be valuable resources which are essentially shared
among kinsmen and that adoption transactions are a means of strengthening the bonds of kinship. (pp. 73, 76, 77).
   According to Mr. Morton, the adoption of a child does not significantly
alter his kinship status as acquired at birth through his natural parents,
but rather provides him with two overlapping kindreds because most
adoptions take place between blood relatives (p. 77). Since an adopted
child's relationship to his natural parents is generally a continuing one,
he benefits from the adoption in that it gives him the advantage of
manipulating his kinship status by stressing his relationship to either.
his natural parents or his adoptive parents (pp. 77-78, 80).
   Although a new parent and child relationship may be created through
customary adoption in Tonga, it appears that it is not exclusive since the
relationship of an adopted child to his natural parents is diminished only
by his own choice. A system which gives an adopted child the option to
maintain a legal relationship with his natural parents is inconsistent
with our concept of adoption and with section 101(b)(1)(E) of the Immigration and Nationality Act, 8 U.S.C. 1101(b)(1)(E). Consequently, we
are not convinced that the parent and child relationship resulting from
Tongan customary adoption creates rights and duties which we would
   According to Mr. Edwards and the opinions of the Crown Solicitor of Tonga, Cap. 19 of
the Laws of Tonga sets forth a procedure forth adoption of illegitimate children_ That
type of adoption in Tonga is not now before us, so we need not determine its validity for
immigration purposes at this time.

                                          216
                                                   Interim Decision #2899

recognize as enforceable by law:
  Also of significance to our inquiry is the fact that the Constitution of
Tonga prohibits the inheritance of land by children who are adopted
according to customary practice. Although the petitioner notes that the
Board has found Chinese customary adoptions which bestowed no succession rights to be valid for immigration purposes in Matter of Ng,
supra, and Matter of Yne, supra, we believe, that the situation presented here is distinguishable. Under Chinese customary law, two kinds
Of adoption exist: (1) adoption of a male child for the purpose of instituting him as an heir for perpetuation of the ancestral cult, which requires
that the child come from the same kindred and have the same surname,
and (2) adoption of a child, whether male or female, without intending to
institute it as an heir. See Matter of Young, 

 (BIA
1972); Matter of Poon, supra; Matter of Ng, septa; Matter of Chin,
supra. Thus, although male children who are without the required qualifications and all females may not inherit from their adoptive parents
under Chinese customary law, they are nonetheless recognized as having equal status with those natural children who also do not have the
right to inherit. Seellatter of Ng, supra.
   On the other hand, children adopted in Tonga pursuant to custom are
not permitted to inherit and therefore do not have rights comparable to
those of natural legitimate children. The Board has refused to recognize
as valid for immigration purposes customary adoptions which do not
accord adopted children a status similar to' hat of natural children. See
Matter of Mosel), supra, Matter of Kong, supra.
    Customary adoptions in Tonga do not give the adopted child a legal
 status or relationship which bestows rights and obligations comparable
 to those of natural legitimate children and they do not appear to have
'any legal effect under Tongan law. The Crown Solicitor's original conchsiori that customary adoptions are not recognized as legally valid has not
 been retracted or contradicted, nor has the petitioner offered any evidence which has persuaded us that they have any legal effect. We therefore conclude that these adoptions shOuld not be recognized as valid for -
immigration purposes.
  We note in this regard the suggestion by Mr. Morton that an adoption
may be obtained through application to the courts which is recognized
by Tongan law as according rights of succession to the adopted child.
Morton, supra at 65, 71. The petitioner has offered no evidence that
would either verify or refute the existence of such a procedure. However,
if a means of acquiring legal sanction for an adoption is available, we
believe that our immigration laws would require a person seeking immigration benefits on the basis of an adoption in Tonga to obtain the
endorsement of law in that manner.
   We are aware of the decision in Milo. v. District Director of Denver,

                                    217
Interim Decision #2899

Colorado, 

 (D. Utah 1980), which concludes that Tongan
customary adoptions should be recognized as valid for immigration
purposes. With all due respect to the court, we do not accept its opinion
as definitive on this issue. The fact that a lower federal court has rejected
a legal conclusion of this Board does not require us to recede from that
conclusion in other jurisdictions. See Matter of Amado and Monteiro, 

 (BIA 1969); Matter of Lim, 

 (BIA 1969).
   We disagree with the court's conclusion that there is no reason to
make a distinction between a system of adoption where a parent-child
relationship is sanctioned by law and one where it is only recognized by
custom. We believe that the recognition of an adoption by the Iaw of the
country where it took place offers some assurance that the adoption is
valid. Thus, in our opinion, evidence that an adoption is legally sanctioned provides a necessary safeguard against the possibility. of fraud
which Congress carefully sought to avoid. 2 It does not therefore appear
unreasonable to require that the legal system under which an adoption
took place must recognize that it creates rights and duties which are
enforceable by law.
  It is the petitioner's burden in visa petition proceedings to establish
the claimed relationship. See Matter of Brantigan, 

(BIA 1966). He further bears the burden of proving any foreign law on
which he relies. See Matter of Annang, 

 (BIA 1973). We
are not persuaded that the petitioner has met his burden in this case.
Accordingly, for the reasons stated above, we shall dismiss the appeal.
Our decision in Matter of Palelei, supra, is reaffirmed.
  ORDER The appeal is dismissed.




  2 The concern of Congress that a law granting immigration benefits on the basis of
adoption might lead to abuse is reflected in the fact that no such provision was enacted
until 1957. See S.Rep. 1515, 81st Cong., 2nd Sess. 468 (1950); Act of Sept. Sept. 11, 1957,
Sec. 2, 

. When it was passed, Congress set forth specific requirements for
residence and legal custody and included a proviso limiting those entitled to benefit so as
to prevent circumvention of the law by fraudulent adoptions. See section 10 1(b)(1)(E) of
the Act.

                                           218