Interim Decision #2737 

MATTER OF KONG 

In Visa Petition Proceedings 

A-22165175 

Decided by the Board October 24, 1979 

(1) In order to qualify as brothers or sisters under section 203 (a)(5) of the Act, a 

petitioner must establish that both he and the beneficiary once qualified as children of 

a common parent and that parent is still a parent of each of them at the time the visa 

petition is adjudicated. 

(2) The "once qualified" rule has been applied to give effect to the time limitations set 

uut in the Act's definition of "child". while recognizing that the circumstances creating the relationship are unaffected by the passage of time, marriage of the child, or 

even death. 

(3) Adoption in accordance with section 101(b)(1)(E) of the Act creates a parent-child 

relationship under the Act. 

(4) Termination of an adoption accomplished in accordance with section 101(b)(1XE) of 

the Act terminates the parent-child relationship which the adoption created. 

(5) An adopted child who has gained immigration benefits through a natural parent by 

virtue of the termination of the adoption cannot confer immigration benefits on Or 

through the adoptive parents. 

(6) Child whose adoption was formally terminated when she came to the U.S. upon the 

petition of her natural mother, no longer had a common parent with the beneficiary, 

her former adoptive brother, and visa petition in his behalf denied. 

ON BEHALF OF PETITIONER: Donald Paragon, Esq. 

94 Bayard Street 

New York, NY 10015 

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members. 

The United States citizen petitioner applied for visa preference 

status for the beneficiary as her brother under section 203(a)(5) of the 

Immigration and Nationality Act, 8 U.S.C. 1153(a)(5). In a decision 

dated June 30, 1978, the District Director denied the petition. The 

petitioner has appealed. The appeal will be dismissed. 

The petitioner was born on November 2, 1950, in Macao, Portuguese 

China. When she was approximately nine months old, she was adopted 

by the beneficiary's mother and father. The beneficiary was born on 

November 4, 1962, in Macao. 

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The petitioner's natural mother immigrated to the United States in 

1962. The petitioner's adoption was terminated by a STATUTORY 

DECLARATION dated July 16, 1967, so that her natural mother could 

petition for her to enter the United States. On July 28, 1967, her 

natural mother filed the visa petition, which was ultimately approved, 

and the petitioner arrived in the United States on April 6, 1969. 

The petitioner lived with her adoptive parents from the time of her 

adoption 111 1951, and after the adoption was terminated in 1967, until 

she came to the United States in 1969. Her adoptive father died in 1977 

and her adoptive mother resides with her in Philadelphia, Pennsylvania. On May 18, 1977, the petitioner filed the instant petition on 

behalf of her adoptive brother. 

The District Director denied the petition on the ground that the 

claimed relationship did not then exist as the petitioner's adoption had 

been terminated. 

On appeal, the petitioner contends that the beneficiary is still her 

brother by virtue of Article 1083 of the Code of the Republic of China 

which, according to the petitioner,' provides: 

From the time of the termination of adoptive relationship, the adoptive child resumes 

his original surname and his relation to his parents by birth. The existing rights of 

third parties, however, are not affected thereby. 

She argues that the sibling relationship between herself and the 

beneficiary falls within the "existing rights of third parties" which are 

protected by the last sentence of Article 1083. 

The issue in this case is whether a sibling relationship created by an 

adoption survives for immigration purposes the termination of that 

adoption. We hold that it does not, based on our interpretation of the 

Immigration and Nationality Act and irrespective of the law of the 

jurisdiction where the adoption was terminated. 

The Act does not define "brother" or "sister", but does define the 

terms "child", "parent", "father", and "mother". The relevant portions 

of section 101(b)(1)(E) of the Act, 8 U.S.C. 1101(b)(1)(E) provide: 

(1) the term "child" means an unmarried person under twenty-one years of age who 

is— 

(A) a legitimate child; or 

• ' " 

(E) a child adopted while under the age of fourteen 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; 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 

' The record file does not contain a certified translation of Article 1083. Our files do not 

contain such a translation either. 

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Section 101(b)(2) provides that the term "parent", "father", or 

"mother" means a parent, father, or mother only where the relationship exists by reason of any of the circumstances set forth in section 

101(b)(1) of the Act. 

This Board has held that in order to qualify as brothers or sisters 

under section 203(a)(5) of the Act, the petitioner must establish that 

both he and the beneficiary once qualified as children of a common 

parent. See Matter of Ferreira, 16 I&N Dec. 495 (BIA. 1978); Matter of 

Clahar,16 I&N Dec. 484 (BIA 1978); Matter of Bourne,16 I&N Dec. 367 

(BIA 1977); Matter of Gur, 16 I&N.Dec. 123 (BIA 1977); Matter of 

Rehmas, 16 I&N Dec. 512 (BIA 1975); Matter of Garner, 16 I&N Dec. 

215 (BIA 1975) and cases cited in footnote 2 thereof; Matter of Heung, 

16 I&N Dec. 145 (BIA 1974). 

The "once qualified" rule has been applied to give effect to the time 

limitations set out in the Act's definition of "child", while recognizing 

that the circumstances creating the relationship are unaffected by the 

passage of time, marriage of the child, or even death. Thus, in construing the term "parent" we have said: "While for immigration purposes 

a 'child' ceases to be a child even if it fits into the various categories 

when it reaches the age of twenty-one or becomes married, the parent, 

once the required relationship has been established, always remains a 

parent." Matter of G—, 8 I&N Dec. 355 (BIA 1959); see also Matter of 

Hassan, 16 I&N Dec. 16 (BIA 1976). This statement is overly broad in 

that it suggests that the status of "parent," once established, cannot be 

terminated. 

Neither Matter of Hassan, Matter of G—, nor any of the "once 

qualified" cases, cited above, involved the termination of an adoption 

or the question of the effect of termination of an adoption on family 

relationships created by it. Therefore, none of those cases is dispositive 

of the issue here. 

In the instant case, the petitioner once qualified as a child of the 

beneficiary's natural parents because she was adopted by them in 

accordance with section 101(b)(1)(E). 2However, the petitioner's adoption was terminated in 1967 so that she could come to the United States 

on the petition of her natural mother. Thus, at the present time, her 

adoptive parents are not her "parents" because the relationship 

between them and the petitioner has been severed. Cf. Matter of 

Simicevic, 10 I&N Dee. 363 (BIA 1963). As the petitioner and the 

beneficiary do not now have a common parent, they cannot qualify as 

brother and sister under the Act. 

Further, immigration benefits have been conferred on the basis of 

Infancy adoptions pursuant to Chinese law and custom are recognized for purposes of 

United States immigration laws. Matter of Yue, 12 I&N Dec. 747 (BIA 1968). 

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the termination of the petitioner's adoption.. From the circumstances 

of this case, it appears that the petitioner and her family are manipulating their family relationships to gain benefits under the immigration laws. We do not believe that Congress intended to give adopted 

children greater rights under the Aet than natural children. It is clear 

from the proviso of section 101(b)(1)(E) that Congress did not intend to 

allow a child adopted in accordance with that section to gain immigration benefits through an adoption and then confer immigration 

benefits on his natural parents. Similarly, we will not permit an 

adopted child who has gained immigration benefits through a natural 

parent by virtue of the termination of the adoption to then confer 

immigration benefits on or through the adoptive parents. 

Accordingly, the appeal will be dismissed. 

ORDERS The appeal is dismissed. 

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