MATTER or B—
In VISA PETITION Proceedings
A-8115379
Decided by Board August 02, 1960
Adoption—Benefits under immigration laws based on natural relationship between parent and child not lost when child is adopted after age 14.
Adult naturalized United States citizen who was legally adopted in this country at are 15 held entitled to confer second preference quota status upon
natural parents. Unless an adopted child acquires immigration rights and
privileges as between himself and his adoptive parents pursuant to an adoption which has conformed to the standards contained in section 101(b)
(1) (E) of the Immigration and Nationality Act, his relationship with his
natural parents remains unchanged for immigration purposes.
BEFORE THE BOARD
DISCUSSION: The case comes forward pursuant to certification
by the District Director, Phoenix District, of his order dated April
14, 1960, approving the visa petitions on behalf of the beneficiaries
for preference status under section 203(a) (2) of the Immigration
and Nationality Act.
The facts concerning the visa application are set forth fully in
the decision of the district director. The petitioner is a native of
Greece, born January 23, 1939, female, single, who was admitted to
the United States for permanent residence on September 19, 1951,
under the provisions of section 3 (b) (4) of the Displaced Persons
Act of June 25, 1948. She became a naturalized citizen of the United
States under the general provisions of the naturalization law on
February 17, 1958, and thereafter filed the instant petitions to accord
manna preference quota status for her natural parents. The father
and mother are natives of Turkey, citizens and residents of Greece,
56 and 45 years old, respectively.
The district director's order reflects that the petitioner (and her
brother) were admitted to the United States as displaced persons
under section 3 (b) (4) of the Displaced Persons Act of 1948 and
were destined to their aunt and uncle, F— and F—B—, residing in
Phoenix, Arizona. Apparently the petitioner's natural parents were
not eligible as displaced persons. The petitioner and her brother
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were adopted by their aunt and uncle on October 25, 1954, pursuant
to a decree of adoption made on that date by the Superior Court of
Arizona in Maricopa County. It is to be noted that the petitioner
was over 15 years of age when the adoption occurred. In connection
with the appeal, the petitioner advises that the primary purpose of
the adoption was to assure her and her brother a legal guardianship
until such time as the natural parents could be admitted to the
United States and there was no thought of using the adoption as a
means of securing entry permits for the parents; that it was unfortunate that they were not made temporary wards instead of being
adopted; and that the uncle -is now almost completely incapacitated
as a result of multiple sclerosis.
Title 8, section 108, Arizona Revised Statutes, provides that, effective as of the date of entry of the final order of adoption, the
child shall no longer be the child or heir of the natural parents, or
entitled to any of the rights and privileges, or subject to any of the
obligations of a child of its natural parents. Informal advice from
the Chief Deputy County Attorney, Maricopa County, where the
adoption took place, is to the effect that the express purpose of this
section was to wipe out any connection between the child and the
natural parents.
Section 203(a) (2) of the Immigration and Nationality Act as
amended by the Act of September 22, 1959 grants preference quota
status to parents of adult citizens of the United States. Under section 101(b) (2) the term "parent" means a parent only where the
relationship exists by reason of the circumstances set forth in section 101(b) (1) of the Immigration and Nationality Act, as amended.
This section sets forth five categories, including section 101(b) (1) (E),
which was added by the Act of September 11, 1957 and makes
eligible for immigration benefits an adopted child who is defined as:
(E) a child adopted while under the age of fourteen yours if the child has
thereafter been in the legal custody of, and has resided with, the adopting
parent or parents for at least two years : Provided, That no natural parent
of any such adopted child shall thereafter, by virtue of such parentage, be
accorded any right, privilege, or status under this Act. (Emphasis supplied.)
Reference to the definition of adopted child discloses that for
immigration purposes an ordinary adoption is not sufficient. It is
necessary, in order to qualify for immigration status or benefit:), that
the child be adopted while under the age of 14 years, thereafter
be in the legal custody of, and reside with, the adopting parent
or parents for at least two years; and the law ctont.siits a proviso
that no natural parent of any "such" adopted child shall thereafter
be accorded any right, privilege or status under the Immigration
and Nationality Act. It may be noted at the outset that the adopted
child in this case cbuld not qualify as "such" adopted child as
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defined for immigration purposes, since the child was adopted when
over the age of 14 years. The fact that the child was regarded as
legally adopted under the laws of the State of Arizona does not have
any significance under federal immigration laws other than that
the adoption must accord with the procedural adoptive requirements
of the state.
Subparagraph (E) of section 101(b) (1) was added to the Immigration and Nationality Act by the Act of September 11, 1957
(71 Stat. 639) which, for the first time, gave formal recognition to
adopted children for the purpose of nonquota or preference status.
The legislative history of this amendatory act first makes reference
to certain administrative decisions of the Attorney General as to the
terms "child" and "stepchild" 1 which the Congress regarded as not
in conformity with the congressional intent and which the new legislation was designed to clarify. The definition of "child" was extended to include adopted children under limited circumstances:
i.e., in those cases where the child was adopted while under the age
of 14 years and had thereafter been in the legal custody of, and had
resided with, the adopting parent or parents for at least two years. 2
It was observed that the term "child" under existing law did not
include adopted children, and the belief was expressed that the
proposed amendment was desirable to prevent hardship in cases
where the child was chargeable to a heavily oversubscribed quota
and would not otherwise be able to accompany his adoptive parents.
It was stated that adequate safeguards were included in the new
legislation to prevent abuses in adoption cases, such as ad hoc and
fraudulent adoptions made for the purpose of circumventing the
immigration laws.' The only reference to the proviso contained in
section 101 (h) (1) (l1) rutting nff any right., privilege nr Oaths
under the Act to a natural parent by virtue of such parentage subsequent to the adoption, is a comment in the Congressional Record
to the effect that a technical amendment to the bill was proposed
to bring this section into accord with section 4 of the bill which
relates to eligible orphans'
The legislative history, therefore, evinces a clear congressional
intent to prevent hardship in the case of a family with adopted
children by according such children recognition for immigration
UntloubLedly MmIter of A—, 1-272, and Hurler of DI—, 3-120.
'The limitation that the child be under 14 years of age overruled Matter
of R—, 5-438, which recognized an adoption for purposes of section 203 (a ) (4) in
a case in which,the beneficiary was adopted when 24 years of age.
a Senate Report No. 1057 to accompany S. 2792 (85th Cong., 1st Secs.) pp. 3,
4; 2 U.S. Code congressional and Administrative News, p. 2020.
' Volume 103, Part 12, Congressional Record, p. 16301 (August 28, 1957).
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purposes. However, the new legislation prescribed a federal standard for adoption in order to prevent certain abuses by restricting
eligibility of such adopted children for immigration purposes to
those adopted under the age of 14 years and requiring two years'
custody and residence of the adopted child with the adoptive parents
after tI s adoption. These federal standards laid down by the law
supersede the requirements of the state law which are effective only
insofar as the procedural requirements for adoption are concerned.
In the instant case, the adoption occurred when the petitioner
herein was over 14 years of age. It, therefore, failed to meet the
federal standard for an adoption to be recognized for immigration
purposes. Therefore, for immigration purposes the adoption has
no effect, and may be considered as neither conferring any immigration right, privilege or status as between the parties to the adoption
nor as affecting the natural relationship existing between the parent
and child. Since this relationship bete: _,en parent and child has not
been changed for immigration purposes, the visa petitions may be
approved for second preference status on behalf of the natural
parents.
ORDER: It is ordered that the visa petitions be approved for
preference status under section 203(a) (2) of the Immigration and
Nationality Act on behalf of the beneficiaries.
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654 317-63
