D-W-M

                        MATTER OF D—W—M-

                  In VISA PETITION Proceedings
                                A–T134526
                    Decided by Board April 4, 190
 Adopted child—Custody and residence with one adoptive parent—Effect of
  divorce.
Where the custody and residence requirements of section 101(b) (1) (E) of
 1052 Act are satisfied primarily by residence with adoptive mother, the
 divorce of adoptive parents is not disqualifying in view of evidence that
 beneficiary (with adoptive mother) has continued to reside with petitioner's
 family in Korea, has continued to be regarded as his adopted son, has been
 supported by petitioner, and divorced wife has signified her consent and
 approval for beneficiary to join his adoptive father in the United States.

                          BEFORE THE BOARD

    DISCUSSION: The case comes forward pursuant to certification
 of the order of the District Director, San Antonio District, dated
 February 9, 1962, approving the visa petition for nonquota status
 on behalf of the beneficiary.
   The petitioner, a native of Korea, a naturalized citizen of the
 United States, 58 years old, male, seeks nonquota status on behalf
 of the beneficiary, a native and citizen of Korea, born on January 19,
 1943, as the adopted child of the petitioner.
   As evidence of the adoption there has been submitted a copy of the
 family register and a copy of an adoption paper indicating that the
 beneficiary's name was entered in the family register of the petitioner
 on August 1, 1949, as the adopted son of C—W-- and is listed as
the grandson of the head of the family, the petitioner's father,
K—W—M—. In a sworn statement to an immigration of ficer on
Novemhex 98, 1961, the petitioner identified the beneficiary as his
adopted son. He explained that in Korea there is a custom that the
elder son becomes the head of the family when the father dies; that
when the elder son is married but no male child is born, then the
second oldest child gives his first-born male child to the older son
in order that the head of the family may be retained in proper order;
that he was married but had no children and that C I—M—, his
brother and the natural father of the beneficiary, gave his child to
                                   633
the petitioner and his wife in 1945 and the child has resided with
them since 1945 He was placed in the family register as his adopted
son on August 1, 1949. He stated that the beneficiary resided with
him and his wife in Korea from 1945 until November 1948 when he
entered the United States, that the beneficiary resided with them for
about four years including the summer of 1955 when the petitioner
returned to Korea. Evidence has been presented that the petitioner
divorced his first wife on November 30, 1956, by decree of the District Court, Tarrant County, Texas, but the divorce decree makes no
mention of the adopted child. The petitioner states that the beneficiary is known as his son in Korea, that in addition to income from
their family he has sent him money, exhibiting receipts. The adoptive mother, in a statement executed May 2, 1961, before a county
magistrate in Korea certifies that she agrees and consents that the
beneficiary should join his father in the United States; that the
child was adopted by the petitioner and his wife when 5 years old
and that they have lived together for 12 years. There has also been
submitted a statement signed by one L—G—J—, otherwise unidentified, dated August 18, 1961, to the effect that the benficiary is the
adopted son of the petitioner, and has resided with him from
August 1945 to November 1948 and that the petitioner is the legal
custodian of the beneficiary.
   In order to be eligible for nonquota status the beneficiary must
qualify as an adopted child under the immigration laws as provided
in section 101(b) (1) (E) of the Immigration and Nationality Act, as
amended. This section defines an adopted child as a child 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.
   In the instant case the beneficiary was given to the petitioner
and his first wife in 1945. He appears not to have been formally
adopted until his name was placed in the family register on August 1,
1949. • Thereafter, he continued to reside with the adoptive mother
except for the summer months of 1955 when he resided with both
parents. Since the adoptive father's divorce in November 1956, petitioner has been staying with his family with whom his divorced wife
also continues to reside. No question has been raised as to the legality
of the adoption or of the relationship between the husband and wife
or between either of them and the adopted son.
  It is believed that the case falls within the principle enunciated
in the holding of Matter of Y—K—TV—, 9-176 (Atty. Gen.,
Feb. 28, 1961), in which it was held that the two year legal custody
                                                    -


and residence requirement imposed upon an adopted child under the
definition of adopted child as set forth in section 101(b) (1) (E) of
the Immigration and Nationality Act, as amended by section 2 of the

                                  634
Act of September 11, 19.7. , is satisfied when custody and residence
have been with only one of the adoptive parents rather than both.
In so holding, and'reversing a prior ruling to the contrary, the Attorney General recognized the remedial purpose of preserving rather
than interrupting bona fide family relationships as exemplified in
the legislative history seeking to prevent a separation of bona fide
family units, and pointed out that safeguards against abuses might
better be established by looking at the surrounding circumstances of
the adoption and making a determination on the facts that, assuming
the statutory qualification is met, the legislative purpose would be
served in a particular case.'
   There is no doubt that had there not been any divorce the beneficiary would qualify as an adopted child under the holding in Matter of
Y—K—W---, supra. It is not believed that the divorce of the adoptive parents on November 80, 1556, requires any different result in
view of the evidence establishing the continuance of the bona fide
family relationship of adoptive father and adopted child, as evidenced by the fact that the beneficiary has continued to reside with
the petitioner's family in Korea, has continued to be regarded as
his adopted son, has been supported by the petitioner and there is
no objection from the divorced wife who has signified her consent
and approval that the beneficiary join his father in this country.
   ORDER: It is ordered that the order of the District Director
dated February 9, 1962, approving nonquota status on behalf of the
beneficiary as the adopted child of the petitioner be and tho same
is hereby affirmed.
   The residence requirement of section 101(b) (1) (E), as amended, does not
exclude computation of residence occurring prior to the formal adoption
decree. Mailer of M—, 8-118.




                                   635