MENDOZA

Interim Decision #2869




                               MATTER OF MENDOZA

                           In Visa Petition Proceedings
                                      A-21231624
                        Decided by Board June 11, 1981

(1) Prior to its repeal effective June 10, 1975, Article 335(1) of the Philippine Civil Code
  of 1950 precluded adoption by "Those who have legitimate, legitimated, acknowledged
  natural children or natural children by legal fiction. . . ."
(2) Despite the disqualification of an adopter under Article 335t1), an adoption granted
  by a competent court which is duly registered in the civil registryis valid until declared
  a nullity on grounds of mistake or error by a court of competent jurisdiction.
(3) Where the petitioner was disqualified from adoption by Article 335(1) in 1972 at the
  time she adOpted the beneficiary in a Philippine judicial proceedings, and where the
  adoption was duly registered in the civil registry, and where•the adoption had not
  been declared a nullity by a court of competent Jurisdiction, a visa petition based on
  that adoption was properly approve&
ON BEHALF OF Prrrrioxsa: Victor Agmata, Jr., Esquire
                         15 South King Street
                         Honolulu, Hawaii 96811
Br: Milhollan, Chairman; Menials, Maguire, and Morris, Board 'Members


  The lawful permanent resident petitioner applied for preference status on behalf of the beneficiary as her adopted daughter under section
203(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(2).
In a decision dated April 20, 1979, the District Director denied the visa
petition. The petitioner appealed and in a decision dated December 10,
1979, we remanded the record to the District Director. In a decision
dated December 16, 1980, the District Director approved the visa petition and certified the case to us for review. We affirm.
   The petitioner is a 56-year-old native and citizen of the Philippines.
The beneficiary, a native and citizen of the Philippines, was born on
April 10,. 1960, and is the niece of the petitioner. It is alleged that she
was adopted by the petitioner and her husband in the Philippines on
January 24, 1972.
  The District Director initially denied the visa petition based on his
finding that the 1972 adoption was not valid under Article 335 of the
Philippine Civil Code of 1950, in effect at the time the adoption occurred.

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That section provided, in pertinent part:
  Art. 335. The following cannot adopt:
    (1) Those who have legitimate, legitimated, acknowledged nattiral children or natural
  children by legal fiction.. .
  T.he District Director concluded that since the beneficiary was the
child of the petitioner's daughter, Maria, her adoption was invalid under
Philippine law and the petitioner could not therefore confer immigration
benefits on her. On appeal, the petitioner asserted that the beneficiary
was not her granddaughter, as claimed by the District Director, but her
niece, since the beneficiary's_ father was the petitioner's brother. In
addition, the petitioner contended that the adoption decree issued by
the Second District Municipal Court of Candon should be given full force
and effect_
    Upon a review of the record, we remanded the case to enable the
District Director to consider the relationship between the petitioner and
the beneficiary and the conflicting evidence contained in the record as to
the date of the adoption. It was noted that the adoption decree and a
registration certificate from the office of the Santa Maria municipal midi
registrar listed the adoption as having occurred on January 24, 1972.
However, a registration document from the office of the local registrar
in Condon indicated that the adoption took place on Mardi 2.9, 1971_ In
addition, in a joint affidavit executed on December 15, 1977, the petitioner and her husband stated that they adopted the beneficiary sometime in 1968. We further stated that a determination should be made as
to the validity of the judicial decision granting the adoption under Philippine law, in light of its recognition that the petitioner and her husband
had a child of their own at the time of the adoption. We noted that the
adoption order specifically stated that the adopting couple's married
daughter was living apart from her parents and had consented to the
adoption.
   On remand, the District Director concluded, based on a further review
of the record and additional evidence presented by the petitioner, that
the beneficiary was in fact the petitioner's niece and that the adoption
occurred on January 24, 1972. He further found that the adoption decree
was valid and final since it had not been directly attacked on grounds of
mistake or error in a court of competent jurisdiction within the time
prescribed by Philippine law. The visa petition was accordingly approved
and the record certified to us for review.
 - In order for an adoption to be recognized for immigration purposes, it
must conform to the statutory requirements of section 101(b)(1)(E) .of
the Act, 8 U.S.C. 1101(b)(1)(E), as well as to the applicable law of the
jurisdiction where it occurred. Matter of Lee, 

 (BIA
 1978); see Matter of Garcia-Rodriguez, 

 (BIA 1978);
Matter of Dhitton, 

 (BIA 1977). Section 101(b)(1)(E) of

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the Act defines the term "child" as including "a child adopted while
under the age of fodrteen 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."
  We are satisfied that the adoption in this case occurred on January 24,
1972, as reflected by the adoption decree. The Santa Maria registration
certificate also reflects the January 24, 1972, date and indicates that the
adoption was registered in that office only 2 days after the adoption
decree was issued. In contrast, the Candon Register, indicating a March
29, 1971, adoption date, reveals that the adoption was registered in that
municipality on February 28, 1978, over 6 years after the adoption was
granted. It appears, from a review of the adoption decree, that the
March 29, 1971, date reflected on the Candon Register refers to the date
the petitioner and her husband filed the petition for adoption rather
than the date the adoption was granted. Further, in a joint affidavit
dated February 25, 1980, the petitioner and her husband attest that
their prior statement of a 1968 adoption referred to the year they first
considered adopting the beneficiary and not the actual date of adoption.
The affidavit reflects that the petitioner departed from the Philippines
in 1968 to come to the United States and that the beneficiary has resided
with her from 1961 up until that time. The petitioner and her husband
also attest that they continued to provide for the support, maintenance,
and education of the beneficiary subsequent to the petitioner's move to
this country in 1968. In light of the foregoing, we conclude that the
adoption in the instant case did in fact occur on January 24, 1972. Since
the beneficiary was only 11 years old at the time of the adoption, the
age requirements of section 101(b)(1)(E) of the Act have been satisfied.
We further find, based on the evidence contained in the record, that the
2-year residency and legal custody requirements of that section have
been met.
  The only remaining question is whether the adoption in the instant
case is valid under Philippine law. A birth register and baptismal certificate contained in the record establish that the petitioner and her husband had a daughter by the name of Emiliana Mendoza at the time of the
beneficiary's adoption . 1 The adoption decree reflects that the petitioner's
daughter executed a written statement consenting to the adoption of
the beneficiary by her parents since she was already married and living
separate and apart from them. The decree further indicates that the
petitioner's daughter reiterated her approval of the adoption during the
adoption during the adoption proceedings.


  ' There is no indication in the record that the beneficiary's mother. Maria Pajarito, is
the daughter of the petitioner, as was initially concluded by the District Director.

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  The District Director concluded that the adoption was valid under
Philippine law despite the provisions of Article 335 of the 1950 Civil
Code based partially on a report entitled "Adoption Law in the Philippines"
prepared by the Law Library of the Library of Congress. The report
states that no statutory provisions or court cases could be found on the
specific issue of whether an adol Lion granted by a court to a disqualified
adopter, which is duly registered, is void ab intro or merely voidable.
The report does however indicate that the Philippine Supreme Court
has stated that an erroneously granted adoption can only be corrected
by an appellate court or through reconsideration by the issuing court.
Further, the report cites Philippine Supreme Court and lower court
decisions which state that public policy and sound practice demand, at
the risk of occasional errors, that court judgments become final at some
definite date fixed by law. Based on this material, the report concludes
that despite the disqualification of an adopter, an adoption granted by a
competent court which is duly recorded in the civil registry, is valid
until declared null on grounds of mistake or error by a court of competent Jurisdiction. The report further indicates that Article 385 of the
 1950 Civil Code was expressly repealed by the Child and Youth Welfare
Code, effective June 10, 1975, so that persons formerly prohibited from
adopting under the Article can now do so. The provisions of the new
code however do not have retroactive effect.
   Also contained in the record is a memorandum prepared by a judge of
the Court of First Instance in the Philippines which indicates that the
adoption order here became final and binding on all parties and strangers in the absence of an appeal filed within 30 days of notification of the
decision. The memorandum states that once the judgment became final,
it was not subject to collateral attack and its validity could only be
questioned. in an action filed specifically for its annulment. Further, it
indicates that a direct attack of the adoption order would not succeed in
light of the current laws and policies of the Philippines which permit
persons with children to adopt. Also contained in the record is a letter
from the Philippine Consul General in Hawaii which reiterates the view
that the adoption order in this case is not void ab initio, but valid until
declared null by a competent court.
   In light of the foregoing assessment of Philippine law, we conclude
that despite the error of the municipal court in granting the adoption to
the petitioner and her husband who had a legitimate child of their own,
the judgment is valid under Philippine law. The petitioner has therefore
met her burden of establishing that the beneficiary qualifies as her
adopted daughter under section 203(0(2) of the Act. The District
Director's detision will be affirmed. •
   ORDER: The decision of the District Director is affirmed.


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