Interim Decision 01461' 

Mama or Soo Hoo 

In Visa Petition Proceedings 

A-13881251 

Decided by Board April 22, 1966 

Beneficiary's adoption in China br petitioner in 1938 when the former was 32 

years old and the latter was 27 years old does not constitute a valid adoption 

in accordance with Article 1073 of the Chinese Civil Code which provides 

that the adopter "mist be at least 20 years older than the person to be 

adopted. 

The case comes forward on appeal from the order of the District 

Director, New York District, dated January 22, 1965 denying the 

visa petition for the reason that it has not been established that 

the adoption of the benficiary was effected in writing in accordance 

with Article 1079 of the Chinese Civil Code; the mere statement by 

the petitioner that an adoption certificate has been obtained and 

lost is merely self-serving and does not overcome the burden of proof 

resting upon the petitioner. 

The petitioner, a native of China, a citizen of the-United States 

by naturalization on June 17, 1963, 53 years old, female, seeks quota 

preference status under section 203(a) (4) of the Immigration and 

Nationality Act on behalf of her married adopted son, a native and 

citizen of China, 27 years old. 

In a sworn statement before a Service officer on December 9, 1964 

the petitioner testified that she adopted the beneficiary in 1938; that 

her husband was not present at the time of the adoption, having 

already returned to the United States, but that she obtained his 

permission before she went through with the adoption. She stated 

that just prior to the death of the beneficiary's natural mother she 

asked her to bring up her son, and signed a document giving the 

son to her. The son was about 12 years old at the time. However, 

she has stated that the adoption document was lost and that she. has 

no documentary evidence of the adoption. The petitioner arrived 

in the United States in 1948 but has never previously mentioned the 

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existence of this adopted child who was 22 years,old when she left 

for the United States in 1948. She stated that she and her husband 

had been contributing to the support of the beneficiary but did not 

have any check receipts and actually the money was sent to her sister 

in Hong Kong who changed the money and sent it to her son in the 

village on the mainland of China. She stated that she introduced 

the beneficiary as her adopted son to an affiant, Li Jin Chin Yee. 

In response to a number of leading questions by her attorney in 

which the answers were suggested and only an affirmative reply was 

needed, the petitioner indicated that she did not,ention the existence 

of her adopted son in 1948 when she came to the United. States 

because she feared complications, she was afraid she would be asked 

lot of detailed questions regarding her adopted son, and was fearful that perhaps some misstatement as to some minor details concerning her son, such as when he was born and his physical description 

br anything of that nature might jeopardize her admission to the 

United Stales; that no purpose would be served by mentioning the 

adopted son in 1948 because there was no provision of law under 

which an adopted son could be brought to the United States; and 

that in 1963 when she was naturalized she first mentioned her adopted 

son. 

The husband of the petitioner was questioned and disclosed that 

he first entered the United States in 1923 as the son of a citizen of 

the United States; that he was married September 15, 1987 to the 

petitioner; that he made a trip to China in 1937 and returned. in 

1938; that in 1938, after he returned to the United. States, he consented. by return mail to the request by his wife for permission to 

adopt the beneficiary; that she wrote that she had a document concerning the adoption signed by the beneficiary's blood mother. 

In a subsequent affidavit the-petitioner submitted a picture allegedly taken in 1948 showing's family group including the beneficiary, a letter written in 1961 addressed to "Pa and Ma" thanking 

them for remittance of $60 and $50, the second letter inclosing a 

- photograph of the beneficiary and his family, giving the dates of 

the marriage, and the names and,birth' dates of his wife and their 

children. It is noted that the addressees in the letter are not identified by name. 

visa petition proceedings, the petitioner has the burden of establishing eligibility far the benefit sought under the immigration laws. 

This burden is the ordinary one applicable in civil matters, i.e., a 

preponderance of the evidence. Section 1079 of the Civil Code of the 

Republic of China provides that an adoption must be effected in 

writing, -unless the person to be adopted has been brought up as a 

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child of the adopter since infancy. The term "infancy" has been 

construed to mean a child under seven years of age. 1 

The petitioner Olab-se to have adopted. the beneficiary in 1938 in 

China and to have had a -enitten adoption document which she 

claims to have lost. There are no details furnished as to the nature 

of the written dodument. The only corroboration of such an adoption document was furnished by the husband, who stated that he was 

in the United States at the time of the adoption and that his -wife 

wrote him that she had n document concerning the adoption signed 

by the boy's blood mother. The husband's knowledge is, of course, 

hearsay. There is no corroboration by any witnesses of a writing.. 

The affiants have merely testified to the existence of an adoption relationship which may have commenced without a writing. No secondaiy evidence has been offered other than as indicated to establish 

that there was in existence a written adoption document. 

In addition, Article 1073 of the Chinese Civil Code provides that 

the adopter must be at least 20 years older than the person to be 

adopted. The petitioner was born August 20, 1911 and the beneficiary was born July 22, 1926. At the time of the adoption in 1938, 

the petitioner would have been 27 years old and the beneficiary 12 

year's old. There was thus only n difference of 15 years between the 

ages of the petitioner and the alleged adopted son. 

Upon consideration of the entire record it is concluded that the 

petitioner has not borne the burden of establishing eligibility on behalf of the beneficiary as her adopted son, in that there has not been 

established a valid. adoption pursuant to Chinese law. • The appeal 

will be dismissed. - ORDER: It is ordered that the appeal be and the same is hereby 

dismissed. 

2 .1fatter of Lau, int. Dec. No. IWO. 

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