In re XIU HONG LI, Beneficiary of visa petition filed by

BAO YI XU, Petitioner

File A72 134 165 - Northern Service Center

Decided April 19, 1995

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) If the provisions of section 101(b)(1)(E) of the Immigration and Nationality Act, 8 U.S.C.

§ 1101(b)(1)(E) (1988), have been invoked in order to obtain or confer an immigration benefit by virtue of an adoptive relationship, the natural relationship will not thereafter be recognized for immigration purposes even if it is established that the adoptive relationship has

been legally terminated.

(2) A natural parent-child relationship can again be recognized for immigration purposes following the legal termination of an adoption meeting the requirements of section

101(b)(1)(E) of the Act if the petitioner can establish the following four criteria: (1) that no

immigration benefit was obtained or conferred through the adoptive relationship, (2) that a

natural parent-child relationship meeting the requirements of section 101(b) of the Act once

existed, (3) that the adoption has been lawfully terminated under applicable law, and (4) that

the natural relationship has been reestablished by law.

FOR PETITIONER: Allen R. Freedman, Esquire, Chicago, Illinois

BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA and

HEILMAN, Board Members; HOLMES, Alternate Board Member

HOLMES, Alternate Board Member:

On April 22, 1993, a Regional Service Center (“RSC”) director denied the

visa petition filed by the United States citizen petitioner on behalf of the beneficiary for preference status as his unmarried daughter under section

203(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1153(a)(1)

(Supp. V 1993). The RSC director certified his decision to the Board of

Immigration Appeals. The record will be remanded for further consideration.

The petitioner filed a visa petition on behalf of the beneficiary, a

22-year-old native and citizen of the People’s Republic of China, on December 9, 1992, asserting that she is his natural daughter. In support of the visa

petition, the petitioner submitted a number of certified copies of Chinese

notarial certificates, accompanied by English-language translations, the most

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pertinent of which are the following: a statement that the beneficiary was

born on March 3, 1971, to her natural father, Xu Bao Yi, and her natural

mother, Chen Xue Yan; a statement that the petitioner and Chen Xue Yan

were married on August 24, 1964; and, a statement that the beneficiary was

adopted on March 3, 1971, by her adoptive father, Li Meng Yang, and adoptive mother, Cai Pei Ying, but that the adoptive relationship established

between them was terminated under Chinese adoption law on October 20,

1992.

The RSC director denied the visa petition on April 22, 1993. He concluded that the October 20, 1992, order renouncing the adoptive relationship

did not reestablish the natural relationship between the petitioner and beneficiary for immigration purposes since the adoption had irrevocably severed

the natural parent-child relationship. He stated that it “was within the realm

of future possibility that this adopted beneficiary could receive from, or confer to, her adoptive parents an immigration benefit.” Therefore, the RSC

director concluded, approval of the visa petition filed by the beneficiary’s

natural father was barred under the “proviso” of section 101(b)(1)(E) of the

Act, 8 U.S.C. § 1101(b)(1)(E) (1988). As noted, the RSC director certified

his decision to the Board.

The threshold question facing the Board in this case is whether the natural

relationship between a parent and child isirrevocably severed when a child is

adopted through an adoption that satisfies the requirements of section

101(b)(1)(E), even if that adoption subsequently is lawfully terminated. If

not, under what circumstances could the natural relationships be recognized

again for immigration purposes?

I. STATUTORY LANGUAGE AND BOARD PRECEDENT

REGARDING ADOPTIONS

Section 101(b)(1) of the Act defines the term “child” for immigration purposes, in pertinent part, as follows:

The term “child” means an unmarried person under twenty-one years of age who is -

(A) a legitimate child;

....

(E) a child adopted while under the age of sixteen years if the child has 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....

This Board recently has addressed the effect of an adoption that meets the

requirements of section 101(b)(1)(E) of the Act on natural relationships for

immigration purposes. In Matter of Li, 20 I&N Dec. 700 (BIA 1993), we held

that an adoption which satisfies the requirements of section 101(b)(1)(E),

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whether or not an immigration benefit has been accorded or could be

accorded by virtue thereof, precludes a natural parent of any such adopted

child from being accorded any right, privilege, or status under the Act

because the adoption severs the relationship between the child and his or her

natural parents for immigration purposes. In so holding, we overruled our

prior decisions of Matter of Lum, 11 I&N Dec. 55 (BIA 1964), and its progeny, Matter of Valsamakis, 12 I&N Dec. 421 (BIA 1967), and withdrew from

certain language in Matter of Kirby, 13 I&N Dec. 173 (BIA 1969).

We concluded that the plain language of the “proviso” to section

101(b)(1)(E) restricted the rights of natural parents once an adoption took

place which met the age, custody, and residence requirements of that section,

without regard to whether an immigration benefit had been accorded or could

be accorded by virtue of that adoption.

II. TERMINATION OF ADOPTIVE RELATIONSHIPS

Regarding the effect for immigration purposes of a lawful termination of

an adoption, we initially note that nowhere does the explicit language of the

statute, in section 101(b)(1)(E) or elsewhere, address such a circumstance.

Nor did our decision in Matter of Li, supra, involve a situation where an

adoption had been terminated. Thus, in Li, we did not address the question

faced in the present case. We simply determined that there are situations

where the status of “parent,” once established, may be terminated, as through

an adoption meeting the requirements of section 101(b)(1)(E).

This Board, however, has previously dealt with the question of what effect

a termination of adoption has on the adoptive relationships. In Matter of

Kong, 17 I&N Dec. 151 (BIA 1979), we found that an alien whose adoption

had been terminated could no longer confer or obtain immigration benefits

based on the adoptive relationship.1 In that case, we found that the petitioner

and the beneficiary, who had previously been related as siblings through

adoption, no longer shared a common parent after the petitioner’s adoptive

relationship with the beneficiary’s natural parents had been severed. Thus,

the petitioner and beneficiary no longer qualified as siblings under the Act.

Id. at 153. By making that determination, we recognized that there are situations where the status of “parent,” including the status of adoptive parent,

may be terminated. Id. However, Matter of Kong dealt only with the issue of

what effect a termination of adoption had on the adoptive relationship. We

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1 We consider, therefore, incorrect as a matter of law the RSC director’s finding that,

assuming the lawful termination of the beneficiary’s adoption, the beneficiary’s adoptive

relatives could conceivably receive or confer an immigration benefit at some point in the future.

Our decision in Matter of Kong, supra, would preclude an immigration benefit from being

obtained through the adoptive relationship once the adoption has been lawfully terminated.
made no specific finding in Kong regarding the termination’s effect on the

prior natural relationships.2

It might be argued that our reasoning in Matter of Li, supra, could be

extended to apply to all situations where an adoption has occurred meeting

the statutory requirements under section 101(b)(1)(E) of the Act, leading to

the conclusion that the natural relationship is severed irrevocably from the

point of the adoption on. However, we do not believe that such a result is

either required by statute or serves the purposes underlying the immigration

laws. It does not appear that Congress, in drafting section 101(b)(1)(E), was

contemplating the situation where an adoption might be legally terminated,

particularly in a context where no immigration benefits had resulted from

that adoption. Rather, it appears that Congress, in drafting section

101(b)(1)(E), contemplated the existence of an ongoing adoptive relationship. Its intent in including the “proviso” was to ensure that a child could be

recognized as a child of his natural parents or of his adoptive parents, but not

of both. See Matter of Li, supra, at 705 (citing H.R. Rep. No. 1199, 85th

Cong., 1st Sess. (1957),reprinted in 1957 U.S.C.C.A.N. 2016).

Moreover, to rule that natural relationships never could be recognized

again under any circumstances for immigration purposes following the legal

termination of an adoption could lead to patently unjust results, which we are

confident would not have been intended by Congress. For example, a minor

child could be separated from his or her natural parents and adopted due to a

mistaken belief that he or she had been orphaned. The parents could later

reappear, the adoption be terminated, and the natural parental relationship be

reestablished while the child is still a minor under circumstances where there

was obviously no fraud or attempt to manipulate the immigration laws. By

extending the reasoning of Matter of Li to such a situation, the alien would be

rendered “parentless” under the immigration laws, since the effect of Matter

of Kong would be to bar all future recognition of the adoptive parent-child

relationship for immigration purposes. In such a situation, to conclude that

the natural parental relationship had been severed irrevocably and could not

be recognized for immigration purposes under any circumstances would distort rather than further the purposes of the Act.

Thus, we conclude that the language of the statute was not intended to

address the specific situation before us. And, we decline to find that the natural relationship between a parent and child is irrevocably severed under all

circumstances when a child is adopted through an adoption that satisfies the

requirements of section 101(b)(1)(E), even if that adoption subsequently is

lawfully terminated.

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2 In Matter of Kong, supra, we noted that the petitioner had immigrated to the United States

on the basis of a visa petition filed by her natural mother after her prior adoption had been

terminated, thus implicating that her relationship with her natural mother had been

reestablished for immigration purposes.
III. STANDARD TO BE APPLIED WHERE ADOPTION

TERMINATED

Under what circumstances could natural relationships be again recognized, for immigration purposes, if an adoption is legally terminated? The

petitioner essentially argues on appeal that once an adoption has been terminated, the natural relationship is automatically reestablished as if the adoption had never taken place. In support of this argument, he urges that our

decision in Matter of B-, 9 I&N Dec. 46 (BIA 1960), is controlling. He maintains that, where an adoption has been legally terminated, the effect is the

same as though the adoption had never existed. Therefore, the section

101(b)(1)(E) “proviso” would not preclude an immigration benefit based on

the natural relationship.

We cannot agree that Matter of B-, supra, controls the issue before us.

That case involved an adoption which did not meet the requirements of section 101(b)(1)(E) of the Act because the alien was adopted after the applicable age limit set forth in that section. The natural relationship, therefore,

never terminated for immigration purposes because the adoption was not recognized for immigration purposes. The situation before us is distinguishable,

however, because there has been a qualifying adoption that did sever the natural relationship. The question that remains is whether, after the termination

of an adoption, the natural relationship may be recognized for immigration

purposes. Consistent with the language and purposes of the Act, we find that

it can be under certain circumstances.

First, we find that if the provisions of section 101(b)(1)(E) of the Act have

been invoked in order to obtain or confer an immigration benefit by virtue of

the adoptive relationship, the natural relationship cannot again be recognized

for immigration purposes even if it is established that the adoptive relationship has been legally terminated. To conclude otherwise would seriously

contravene the congressional intent reflected in the “proviso” of section

101(b)(1)(E). Moreover, this finding is consistent with the concept that an

alien should be recognized for immigration purposes as a child of his natural

parents or of his adoptive parents, but not of both. See Matter of Li, supra, at

704. Thus, once an immigration benefit has resulted from an adoptive parent-child relationship, the natural parent-child relationship cannot again be

recognized under the provisions of section 101(b) of the Act.

We find, however, that a natural parent-child relationship can be again

recognized for immigration purposes following the termination of an adoption if the petitioner can establish that the following four criteria are met.

First, a petitioner must demonstrate that no immigration benefit was obtained

or conferred as a result of the adoptive relationship. Secondly, it must be

demonstrated that a natural parent-child relationship meeting the requirements of section 101(b) once existed. Thirdly, it must be demonstrated that

any subsequent adoption that satisfied the requirements of section

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101(b)(1)(E) has been lawfully terminated under the applicable law. Finally,

the petitioner must demonstrate that his or her natural relationship with the

beneficiary has been reestablished, either through operation of law or

through other legal process (i.e., we do not assume that natural relationships

are automatically reestablished solely by virtue of the fact that an adoption

has been lawfully terminated).

IV. APPLICATION OF THE STANDARD TO THIS CASE

The evidence before us reflects that this beneficiary’s adoption in 1971

met the requirements of section 101(b)(1)(E) of the Act. Therefore, under

Matter of Li, supra, her relationship with her natural parents was severed by

virtue of that adoption. Accordingly, for the present visa petition to be

approvable, the petitioner must demonstrate by a preponderance of the evidence that the four criteria discussed above are met.

There would not appear to be any dispute regarding the first three requirements. There is no evidence or claim that the beneficiary obtained or conferred any immigration benefit through her adoptive relationship with Li

Meng Yang and Cai Pei Ying. The petitioner has also presented evidence that

the beneficiary was his legitimate biological child and, as such, once met the

definition of child contained in section 101(b)(1)(A) of the Act. The petitioner has presented adequate evidence that the beneficiary’s adoption was

properly terminated on October 20, 1992, under applicable Chinese law.3

Finally, with respect to the fourth requirement, we note that the petitioner

has presented evidence on appeal regarding the legal effect of the termination

of adoption, which consists of a translation of pertinent sections of Chinese

law regarding adoptions. Specifically, the Adoption Law of the People’s

Republic of China, Chapter IV, Article 28, states as follows:

After the abrogation of adoptive relationships, the rights and obligations between the

adopted child and the adoptive parents or other close relatives shall terminate immediately,

and those between the adopted child and its biological parents or other close relatives shall

resume. The resumption of rights and obligations between an adult adopted child and its biological parents or other close relatives, however, shall be effected by negotiation.

Ordinarily, we would not consider evidence first offered on appeal. See

Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19

I&N Dec. 533 (BIA 1988). However, in this instance the issue to which this

evidence pertains was understandably not focused on below, inasmuch as no

standard had yet been articulated regarding the treatment of terminations of

adoption for immigration purposes. In light of our decision, accordingly, we

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3 The RSC director apparently accepted the termination as legally valid and based his

decision solely on the effect to be given that termination. We note that the petitioner submitted

a translation of the applicable Chinese law regarding adoptions, which appears to confirm that

an adoption may be terminated, as was done in this case.
find it appropriate to remand this matter to the RSC director to allow the petitioner a full and fair opportunity to meet his burden of establishing that the

natural parental relationship has been reestablished under Chinese law such

that it can be recognized for immigration purposes.

Accordingly, this matter will be remanded to the RSC director for further

consideration of the visa petition.

ORDER: The record is remanded to the RSC director for further

consideration of the visa petition consistent with the foregoing opinion, and

for the entry of a new decision.

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