C

                              MATTER OF C

                   In VISA PETITION Proceedings
                              VP 3-1-119205
                   Decided by Board September 5, 1961
 Visa petition—nonquota status—Adopted child—Change in interpretation of
  law—No authority to grant retroactive apprnval.

 No authority exists to grant retroactive approval of petition to accord nonquota status where petition had been properly denied under the then existing rule of law and change in the interpretation of the law occurred after
  beneficiary ("adopted child") had reacheu the age or 21 years.

                          BEFORE THE BOARD

    DISCUSSION: The case comes before us on motion of counsel requesting that the prior decision of this Board dated March 30, 1960,
 denying the visa petition be reversed, and that the beneficiary be
 accorded nonquota immigrant status notwithstanding the fact that
 he is no longer under 21 years of age. Counsel persists in his appeal
 notwithstanding that the visa petition has been approved for preference status under section 203(a) (2) of the Immigration and
 Nationality Act, contending such approval is of dubious value inasmuch as the Chinese quota is oversubscribed.
   The petitioner, a native of China, naturalized citizen of the
 United States, filed a visa petition on October 2, 1957, at the New
 York office, for nonquota status on behalf of the beneficiary as his
 adopted child. The beneficiary is a native and citizen of China,
 born March 8, 1939. The beneficiary had been adopted by the petitioner's wife, with the consent of- the petitioner, when about two
years of age and, had resided solely with the petitioner's wife from
1941 to 1958 when the adoptive mother joined the petitioner in the
United States.
   The case was previously before us on March 30, 1960, on appeal
from .the decision of the District Director at New York dated November '24, 1V50, denying the visa petition. Al that time we denied
the visa petition on the authority of Matter of C—F—L, 8-151
 (Atty. Gen., 1959), which held that for the purposes of section
101(b) (1) (E) of the Immigration and Nationality Act, as amended,

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 the two-year legal custody and residence required of an adopted child
 must be with both of the adoptive parents where two exist. It is
 to be noted that at the time of our decision on March 30, 1960, the
 beneficiary was then over 21 years of age.
   Subsequently, the Attorney General had occasion to reconsider
his holding in Matter of C F L , supra, because of several ad              -


verse court decisions, and in Matter of J' K—W—, 9-176 (Atty.
 Gen., Feb. 28, 1961), held that the two-year legal custody and
residence requirement imposed upon an adopted child under the
provisions of section 101(b) (1) (E) of the Immigration and Nationality Act, as amended, were satisfied when custody and residence
have been with but one of the two adoptive parents rather than
with both. The visa petition has been reconsidered by the New York
office in the light of the Attorney General's latest holding, and approval has been granted for preference status on behalf of the beneficiary under section 203(a) (2) of the Immigration and Nationality
Act, as amended, since the beneficiary is an unmarried son over 21
years of . age and, therefore, is no longer able to qualify for nonquota status as a minor child.
   Counsel argues that due to the oversubscribed condition of the
quota for Chinese persons second preference status will be of dubious value to the beneficiary, and that had the Case been originally
considered in the light of the Attorney General's present view, as
expressed in Matter of Y—K—W—, supra, the petition would have
been approved for nonquota status. He requests, therefore, that the
petition be approved mate pro tune for nonquota status.
   Counsel cites Matter of S—, 8 221, as precedent authority for
                                    -


such action. Matter of S—, supra, involved a question of acquisition
of citizenship by a child horn abroad and the action necessary to
retain such citizenship, involving an interpretation of the retention
provisions of sections 201(g) and (h) of the Nationality Act of 1940
and of section 301(b) of the Immigration and Nationality Act. The
Solicitor General confessed error in the Supreme Court despite a
favorable decision in the Circuit Court of Appeals and concluded
that section 301(c) rendered the general savings clause inapplicable,
so that, although a petitioner had lost citizenship under the 1940 Act,
he could regain that citizenship under sections 301(b) and (c) of the
1952 Act by coming to the United States before he became 23 years of
age. Based upon this holding, it was determined that where such a
person was incorrectly informed by an American consular officer
before his twenty-first birthday that he had lost United States citizenship, and if, in reliance upon such information and without any lack
of diligence, such person did not apply for and receive a United States
passport until after his twenty-third birthday -but thereafter pro-
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  seeded immediately upon passport is s uance to this country, that person
  would be entitled to admission as a United States citizen.
    We are sympathetic with the plight in which the beneficiary finds
  himself, but we do not believe that authority exists to grant a ramie
 pro turac approval of the visa petition herein. In order to qualify
 as a child for nonquota status, the beneficiary must be unmarried
 and under 21 years of age.' By regulation, 8 CFR 206.1(b) (4),
 provision is made for automatic revocation of nonquota status
 granted a beneficiary as the minor child of a United States citizen
 upon reaching the age of 21 years, except that such a petition is
 valid to accord status under section 203(a) (2) of the Act. When
 we considered this case on appeal on March 30, 1960, the beneficiary
 was then over 21 years of age, and even at that time had the present
 view of the Attorney General been in effect we could do nothing
 more than approve second preference status. There appears to be
 Ito authority to grant retroactive approval of a petition to establish
 nonquota or preference' quota status. 2
    It is to be noted that at the time the prior order of denial of the
 visa petition was entered the rule of law as to the construction to
be placed upon section 101(h) (1) (E) of the Immigration and
Nationality Act, as amended, was that enunciated by the Attorney
General in Matter of C—F—L, 8 151 (Apr. 27, 1959). The previous
 decision of the District Director and of this Board was in accord with
the then existing rule of law. The fact that the rule has now been
changed does not mean that our prior decision constituted a gross
miscarriage of justice.' The law and the regulations prevent the
issuance of a nonquota visa to the beneficiary and we are unable to
find any provisions which expressly- or impliedly authorize a retroactive approval of the visa petition in order to grant nonquota status
to the beneficiary.
   ORDER: It. is ordered that the motion be and the same is hereby
denied.
   Section 101(b) (1), 8 U.S.O. 1101(1)(1).
  a Cf. Yu v. Iltirney, 

 (E.D. Pa., 1981), in which the petitioner sought retroactive approval of third preference quota status for his
wife to a date prior to January 1, 1959, in order that the benefits of section (;
of the Act of September 22, 1919 could accrue to her.
    un it ed Etatoe oa rel. octeffrto-r n. Carmir.lrael, 1W1 F •)ri 10 (C A. 5, 1950),
cert. den. 

; Daskaloff v. Zurbrick, 

; United states er
     Koe,hler v. Corsi, fi0 F.2d 12.3; Alaticr ∎ )f S--,   01; Matter of fe--,
4 - 173 ; Matter of C—, 8-611.




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