K-B-W

                          MATTER OF K—B          W—


                   In DEPORTATION Proceedings

                                 A-11967768
                     Decided by Board April 11, 1962
Presumption of lawful admissicin for permanent residence-    8 CFR 101.1(j)(1)—
  Adoptive child.
The alleged adoptive child of a United States citizen who is not within definition contained in section 101(b) (1) (E) of the 1952 Act, because not legally
 adopted under the law of his residence (China), or of his alleged adoptive
 father's residence (California), cannot qualify for presumption of lawful
 admission for permanent residence under 8 CFR 101.1(j) (1).
CHARGES:
  Order : Act of 1952—Section 241(a) (2) [8 U.S.C., 1251 (a) (2) ]—Entered
            without inspection.
  Lodged: Act of 1932—Sectiou 241 (a ) (1) [8 U.S.C. 1251(a (1) ]—Escludable at time of entry, no immigrant visa.

                           BEFORE THE BOARD

   DISCUSSION: The case comes forward on appeal from the order
of the special inquiry officer dated December 20, 1961, ordering respondent deported on the charges set forth above.
   The order of the special inquiry officer contains a full discussion
of the case. The record relates to a native and citizen of China
who was born on May 3, 1935, under the name of W—, K—B—,
the natural son of W—, Y—S— and D—S—, natives and citizens
of China who have never resided in the United States. About the
year 1944, when the respondent was 9 years of age., he was given by
his parents to the family of W—, T—S—, a United States citizen,
who however was not at that time in China. He resided with W—'s
wife, Y—S—, and an aunt. The wife did not tell her husband about
the adoption until after the war, in about 1945. The respondent's
immigration mother has testified both that the respondent began to
reside with her approximately in 1943 and when he was 9 years old.
The respondent has testified that he was given to the W— family
when he was ahmit 9, during the war. The immigration father
has testified that although he did not know exactly, his son was
 about 11 or 12 when he came into his family. In connection with
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an affidavit executed for the purpose of identifying the respondent
as a citizen of the United States and to facilitate ''his travel to the
United States as a eitizeri, the immigration father made a sworn
statement on May 20, 1047, before a notary public that the respondent was the issue of his marriage to Y—M—Q-- or Y S , was
born on CR 23-11-29 (January 4, 1935), and in connection with
testimony he gave at the time of the respondent's application for
admission as fi citizen on September 8, 1947, he named the respondent as his son, horn CR 23-11-29 (January 4, 1935), and replied in
the negative to the specific question concerning whether he had
ever adopted a son or a daughter.
   Respondent has admitted through counsel that he is not a citizen
or national of the United States; that he is a native and citizen
of China; that he last entered the United States at Los Angeles,
California, on or about February 2; 1957; and that he was then
admitted upon his false claim to United States citizenship upon
presentation of a United States passport.
  The respondent was first admitted to the United States on September 8, 1947, at the port of San Francisco, California, as a United
States citizen under the provisions of Public Law 271 (Act of
December 28. 1945), accompanied by his immigration mother,
              and his immigration brother, W, Y—T—. Consul contends that proceedings should be terminated, arguing that the respondent is comprehended within the provisions of 8 CFR 101.1
(j) (1). This regulation provides that for a presumption of lawful
admission for permanent residence in the case of :
An alien for whom there exists a record of admission prior to September 11,
1957, as a United States citizen who establishes that at the time of such admission he was the child of a United States citizen parent ; he was erroneously
issued a United States passport or included in the United States passport of
his citizen parent accompanying him or to whom he was destined; no fraud
or misrepresentation was practiced by him in the issuance of the passport or
   golfing min:LL5:,sion ; he was otherwise udrui.osible   at the time of entry ex -
cept for failure to meet visa or passport requirements; and he has maintained
a residence in the United States since the date of admission. For the purposes of the foregoing, the terms "child" and "parent" shall be defined as in
section 101(b) of the Immigration and Nationality Act, as amended.
   In order to qualify as a child the respondent must meet the definition set forth in section 101(b) (1) (E) of the Act, as amended, which
provide ° that the child shall have been adopted while under the age
of 14 years 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. Conceding that the respondent otherwise qualifies, 1 the
question remains to be decided whether the respondent was legally
adopted pursuant to the prevailing law in China. Article 1079 of the
 1 if-otter                 9   176.


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Chinese Civil Code promulgated May 28, 1929, states that adoption
shall be effected in writing, unless the person to be adopted has
been brought up as a child of the adopting parents since infancy.
The term "infancy" in this article has been construed to mean a child
not more than seven years of age. 2 There is no evidence to establish
a valid adoption under the laws of California where the immigration
father resided.
   Inasmuch as a valid adoption has not been established, the record
fails to establish that the respondent was a child of a United States
citizen at the time of his original admission in 1947 or at any time
thereafter and he cannot qualify under the provisions of 8 CFR 101.1
(j) (1).3 Nor is respondent eligible for a -waiver of documents in
connection with his last entry on February 3, 1957, since ho was
never lawfully admitted for permanent residence. We agree with the
special inquiry officer that the charge in the order to show cause
and the lodged obsrgA are both sustained. Respondent declined to
apply for any discretionary relief. The appeal will be dismissed.
   ORDER: It is orde,-ed that the appeal be and the same is hereby
dismissed.
   2 Matter of C—F—L, 8-151, 153, referring to a memorandum supplied by the

Far Eastern Law Division of the Library of Congress on the formality of adoption under the law of the Republic of China in which the age limitation of not
inure limn 7 years was promulgated in a Judicial Yuan Advisor , Opinion, 7842,
No. Yuan 2332. The case of Matter of W-11-0—, 3---609, in which the term
"infancy?" was defined as early childhood or babyhood, concerned a child who
was adopted when approximately 2 to 4 years old.
  3 We find it unnecessary to reach the question of whether a person is "erro-

neously" admitted as a United States citizen where the true facts are not
revealed.




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