Interim Decision #2584 

MATTER OF CABUCANA 

In Visa Petition Proceedings 

A-21267608 

Decided by Board May 20, 1977 

(1) The beneficiary, who was born in the Philippines in 1964, was adopted by petitioner in 

1973 pursuant to a decree issued by a family court in the State of Hawaii. The District 

Director denied the visa petition to classify the child as an immediate relative under 

section 201(b) of the Immigration and Nationality Act on the ground that the adoption 

decree was not entitled to recognition because the beneficiary had never lived in 

Hawaii. 

(2) A Hawaiian court has jurisdiction to grant adoption of a child residing outside Hawaii, 

and such decree will be recognized for immigration purposes. See Pascual v. O'Shea, 

421 F. Supp. 80 (1976). Matter of Dela Cruz, Interim Decision 2470 (BIA 1976) overruled. 

(3) Notwithstanding that the adoption decree is valid, there is no evidence in the record 

that beneficiary had resided with either the petitioner or her spouse for the two-year 

period rfArpireti under section 101(b)(1)(E) of the Act. In the circumstances, the petition 

must be denied because the petitioner has failed to sustain that the beneficiary is her 

adopted child for purposes of the Act. 

ON BEHALF OF PkaTrIONER: Walter S. Kirimitsu, Esquire 

531 Avocado Street 

Wahiawa, Hawaii 96786 

BY: Milhollan, Chairman; Maniatis, and Appleman, Board Members 

The United States citizen petitioner applied for immediate relative 

status for the beneficiary as her adopted child under section 201(b) of the 

Immigration and Nationality Act. The District Director denied the 

petition on June 21, 1976, and the petitioner has appealed from that 

denial. The appeal will be dismissed. 

Under section 201(b) of the Act a child of a United States citizen may 

qualify as an immediate relative and be admitted to the United States 

without regard to the numerical limitations of the Act. The term "child" 

is defined in the Act and, under section 101(b)(1)(E), includes 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. 

The beneficiary was born in the Philippines on November 10, 1064. 

The petitioner, the beneficiary's paternal aunt, has submitted a decree 

217 
Interim Decision #2584 

issued by a family court in Hawaii showing that the beneficiary was 

adopted by the petitioner and her husband in 1973. 

The District Director denied the petition on the ground that the 

adoption decree is not entitled to recognition. He reasoned that, because 

the beneficiary has never been in Hawaii, the court lacked jurisdiction to 

issue the decree. 

Subsequent to the District Director's decision, however, the United 

States District Court for the District of Hawaii rendered its decision in 

_Pascual v. O'Shea, Civil No. 76-0081 (D. 1.-lawaii, September 80, 1076), 

reversing an order of the Board dealing with the same issues which are 

before us now, namely, whether a Hawaii state court has jurisdiction to 

grant adoption of a child residing outside Hawaii and whether the 

adoption is entitled to recognition under the immigration laws. In Pascual the court held that the state court had jurisdiction to grant the 

adoptions and ordered that the visa petitions be approved. Accordingly, 

we hold that the adoption decree in the present case is entitled to 

recognition. The Board's derision in Matter of Dela Cruz, Interim Decision 2470 (BIA 1976), also reversed in Pascual v. O'Shea, is overruled. 

Although it appears as though the legal custo dy requirement of section 101(b)(1)(E) has been satisfied, the record contains no evidence that 

the beneficiary has resided with either the petitioner or her spouse for 

the two-year period required by the Act. As a consequence, we conclude 

that the petitioner has failed to sustain her burden of establishing that 

the beneficiary is her adopted child for the purpose of the Act. See 

Matter of Brantigan, 111. & N. Dec. 493 (BIA 19466). The result reached 

by the District Director was correct and the appeal will be dismissed.' 

ORDER: The appeal is dismissed. 

We note that the record contains evidence that the beneficiary may qualify for 

immediate relative status as an orphan under section 101(b)(1.)(F) of the Act. Inquiries in 

this regard should be made to the Service. 

218