MATTER OF C F L 

In VISA. PETITION Proceedings 

VP 3-1-116868 

DociSca by .73ma412 Ovtubc4 2,1958 

Commissioner's Motion October 15, 1958 

Board Decision October 11, 1958 

Decided by Attorney General April 27, 1959 

Adopted child—Two-year legal custody and residence must be with both adoptive parents if two exist—Nonquota status denied to adopted child who resided with only one parent. 

(1) The two-year legal custody and residence required of an adopted child by 

the 1957 amendment to section 101 (b)-(1) of the 1952 act must be bad with 

both of the adoptive parents where two exist. or with one when the family 

unit consists of only one adoptive parent. (Cf. Matter of 31—, VP 2–I34174, Int. Dec. No. 988.) 

(2) Child adopted abroad in 1947 who did not reside with adoptive father 

for two roar period (the father maintaining residence in the U.S.) is not 

entitled to nonquota status despite continuous residence since Infancy with 

adoptive mother. 

BEFORE THE BOARD 

(October 2, 1958) 

Discussion: The case comes forward on appeal from the order 

of the District Director, New York District, dated February 19, 

1958, denying the visa petition on the ground that the petitioner has 

failed to establish that he is the adoptive parent or that the beneficiary while under the age of 14 has been in the legal custody of or 

resided with the petitioner for two years following his adoption. 

The petitioner, 44 years old, male, a native of China and a naturalized citizen of the United States, seeks nonquota status on behalf 

of the beneficiary, his alleged adopted child. The beneficiary was 

born September 24, 1947, in China. A supporting affidavit by the 

petitioner's wife, whom he married on December 10, 1937, sets forth 

that the natural father of the beneficiary died on June 12, 1947, and 

that on December 15, 1947, while the natural mother was still living, 

she adopted the beneficiary and that the beneficiary has lived with 

her as their adopted child with the consent of her husband; that the 

natural mother of the adopted child died on February 5, 1948. The 

151 
adoptive mother reared the child but left him with her own mother 

in Hong Kong when she left for the United States in July 1957. 

The affidavit concludes that the beneficiary is her adopted child 

with the consent of the husband who has been supporting her and 

the child all during that time, and that the child has lived with 

her since infancy and that she has treated him as her Own child. 

The file also contains a copy of a notarized statutory declaration 

executed by the petitioner on February 16, 1957, in Hong Kong 

which sets forth that on December 15, 1947, the petitioner's wife 

who was than residing at Cho mg On Village, at the request of the 

surviving parent of the child and with his consent adopted the said 

child as their own child according to Chinese law and custom; that 

since December 15, 1947, the child has been residing with and under 

the care of his wife; that on December 15, 1947, a dinner party was 

given by his wife in celebration of the adoption of the child in 

accordance with Chinese law and custom; and there was attached to 

the affidavit a photograph of the adopted child. 

In addition, there has been submitted a certificate issued at the 

Chinese General Consulate at New York dated January 30, 1958, 

in which it is act forth that on Jauntily 9, 1958, the nulatized 

statutory declaration referred to above was exhibited to the Consulate General and on January 9, 1958, the petitioner and his wife 

appeared at the Consulate and were questioned regarding the adoption. In order to protect the interests of the adopted person the 

Consulate General requested the petitioner and his wife to reiterate 

in writing the continuation of this adoptive relationship and their 

determination to observe the right and the duty to protect, educate, 

and maintain their minor child. The certificate concludes that the 

Consulate General is satisfied that the adoption was effected in good 

faith and that the petitioner and his wife were discharging faithfully their duties as parents. At oral argument counsel exhibited 

pictures of the another and adoptive child at the age of 2 and 3 

years and, in addition, a photograph of the petitioner, his wife, 

and the child in 1957, as well as individual pictures of the beneficiary. 

The first question presented is whether there has been a valid 

adoption in accordance with the law of the place of adoption. The 

parties involved are all native Chinese persons and the provisions 

of the Chinese Civil Code, promulgated on May 23, 1929, are applicable? Article 1014 of the Chinese Civil Code provides that when 

Under the law of the Republic of China, when a party to an adoption is an 

alien (other than a Chinese), the Rules on the Conflict of Law, effective June 

6, 1953, govern. Article 18 of this law provides: "The conditions of adoption 

and the dissolution thereof are determined as to each party by the law of his 

or her home country. Regarding the effect of adoption, the law of the home 

country of the adopting parents governs." 

152 
a married person adopts a child, he must do so jointly with his 

spouse. Article 1079 of the Chinese Civil Code provides: 

Article 1079. Adoption shall he effected in writing, unless the person to be 

adopted has been brought up as a child of the adopting parents since infancy. 

The Far Eastern Law Division of the Library of Congress has 

provided a memorandum on the Formality of Adoption under the 

law of the Republic of China. Concerning the "savings clause" 

in article 1079 dealing with the "infancy" adoption which is not required to be in writing, according to an advisory opinion of the 

Judicial Yuan, the terminology of the so-called "infancy" provided 

in the savings clause of Article 1070 of the Civil Code, shall be 

construed to mean a child not more than 7 years of age (Judicial 

•Yuan Advisory Opinion, 1942, No. Yuan 2332). To further illustrate the meaning of this statutory provision, a Supreme Court 

decision states that to effect an adoption of a person over 19 years 

of age as an adopted son, without a written document, is in itself 

not complying with the formality required by law as provided in 

article 1079 of the Civil Code. In accordance with article 73 of the 

Civil Code, which provides that a juristic act which is not in the 

form prescribed by law is void unless otherwise provided by law, it 

is not valid and, therefore, the legal relationship of an adopted son 

and the adopting parents had never been created (Supreme Court, 

1940, No. Shang 1817). 

There line been evidence submitted in the form of affidavits and 

photographs that the beneficiary was adopted in China when less 

than 3 months old by the petitioner's wife with the consent of her 

husband. There appears, therefore, to have been a valid infancy 

adoption which was not required to be in writing as provided in 

article 1079 of the Chinese Civil Code. Furthermore, in view of the 

requirement in article 1074 that where a married person adopts a 

child he must do so jointly with the spouse, it would appear that 

there was effective an adoption by both of the adoptive parents, inasmuch as the husband has sworn he consented to the adoption in 

1947. 

The second point to be determined is whether the beneficiary qualifies as an adopted child under the hmnigration laws. A child of a 

United States citizen is eligible for nonquota status. By amendment 

contained in section 2 of the Act of September 11, 1957 (71 Stat. 

639; Public Law 85-316), the definition of the term "child" contained 

in section 101(b) (1) of the Immigration and Nationality Act was 

expanded to include: 

(E) 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 

153 

562712-61 -12 
By this amendment the definition of "child" was extended to include adopted children under limited circumstances. The legislative 

history reveals the amendment was ennsidered desirable to prevent 

hardship in cases where the child was chargeable to a heavily oversubscribed quota and would not otherwise be able to accompany his 

adoptive parents; the amendment included adequate safeguards to 

prevent abuse? 

The legislative history discloses that the amendments to the definition of the term "child" as used in Titles I and II of the Immigration and Nationality Act were enacted for the purpose of alleviating 

certain hardships which had arisen as a result of an administrative 

interpretation that a child born out of wedlock to a woman who 

oubacquently marrioo a man not the father of the child is not included 

within the term "stepchild," and to clarify the law so that an illegiti 

mate child would in relation to its mother enjoy the same status 

under the immigration laws as a legitimate child. The amendment 

to include adopted children in those cases where the child was 

adopted while under the age of 14 years and who had thereafter 

been in the legal custody of and resided with the adopting parent 

for at least two years was likewise for the purpose of preventing 

hardship. Thus, throughout the amendatory legislation in the Act 

of September 11, 1957, there is set forth the principle of amending 

the immigration laws for the purpose of providing for more generous 

treatment of children and demonstrating the concern of Congress 

with the problem of keeping families of United States citizens and 

immigrants united by affording a more liberal treatment of children 

so as to implement the underlying intention of the immigration laws 

regarding the preservation of the family unite 

The legislative history fails to disclose what abuses were intended 

to be guarded against in adoption cases. However, it is evident from 

the requirement that the adoption be limited to children adopted 

while under the age of 14 years who had been in the legal custody of 

and resided with the adopting parent for at least two years that it 

was intended to prevent ad hoc adoptions which were undertaken 

merely for the purpose of circumventing the immigration laws. 

The statute requires legal custody and residence for two years with 

"the adopting parent or parents." No light is shed by the legislative 

history as to why the term "adopting parent or parents" was used 

in the singular and plural in the alternative. Since the legislative 

history indicates no restriction on the use of these terms in the 

alternative, and bearing in mind that the amendment was enacted 

for the purpose of liberalizing the immigration laws to overcome 

Senate Report No. 1057 (85th Congress, 1st Session), pages 3 and 4. 

U.S. Code Congressional and Administrative News, pp. 2020 and 2021 

(85th Congress, let Session). 

154 
hardships which had been revealed by the prior law, it is felt that a 

liberal construction should be adopted insofar as possible in line 

with the language used. 

As used in the immigration laws, a father or mother is synonymous with the term "parent" where the netieb.tary relutieubhip exibtz 

(section 101(b) (1), (2), Immigration and Nationality Act). In the 

instant case, the beneficiary was adopted in China in infancy and 

such an adoption has been shown to constitute a legal adoption in 

China. The child has thereafter been for at least two years in the 

legal custody of and has resided with the adopting mother who by 

definition is an adopting parent as provided in section 101(b) (1) of 

the Immigration and Nationality Act. The facts of the case satisfy 

the definition of an adopted child as provided in section 101 (b) (1) 

(E). The element of fraud or abuse does not appear to be present 

since this adoption occurred long prior to the present amendment 

and even the statutory declaration executed by the present petitioner 

in Hong Kong on February 16, 1957, was prior to the enactment of 

the amendment on September 11, 1957. In addition, other evidence 

in the form of photographs has been submitted to show that this 

beneficiary was reared by the mother since at least the age of 2 years. 

It, theroforo, appears that we have existing a bona fule family 

unit of adoptive parents and adopted child which has been in existence for more than 10 years past. It would undoubtedly be the very 

sort of hardship that the amendment was designed to alleviate if it 

were to be held that this child could not Join its adoptive parents 

in the United States. 

The Service has made reference to the provisions of section 205 of 

the Immigration and Nationality Act which set forth a procedure 

for granting nonquota or preference status by reason of relationship. 

We regard this merely as a procedural requirement for the obtaining 

of nonquoto, or proforonoo qtqtriq by reason of relationship, and the 

requirement to be satisfied as to relationship is the definition set 

forth in section 101(b) (1). If the beneficiary satisfies that definition 

he is a part of the class to whom nonquota or preference status attaches as a result of the relationship. 

In the instant case it has been shown that the legislation was intended to fulfill humane considerations involved in keeping intact 

the family unit. Based upon the wording of the statute, the beneficiary satisfies the requirement of the statute inasmuch as the beneficiary was lawfully adopted while under 14 years of age and 

subsequent thereto was in the legal custody of and resided with the 

adopting parent-mother for at least 2 years. There is a literal compliance with the law. The statute requires no more. 

The statute does not read as the Service would interpret it, in the 

legal custody of and residing with the petitioning adopting parent 

155 
or parents for at least 2 years. Had Congress intended such a construction, it could have easily so provided by specific language. No 

such qualification is set. forth in the definition and in view of the 

liberal Congressional intent, it is believed that no such restriction 

is warranted. Accordingly, the visa petition will be approved. 

Order: It is ordered that the visa petition be approVed for nonquota status on behalf of the beneficiary. 

BEFORE THE CENTRAL OFFICE 

(October 15. 1958) 

Discussion: The issue presented is whether the beneficiary is 

the child of the petitioner within the meaning of the immigration 

lawn 1:10 as to be entitled to nonquota status. The district director 

concluded that the petitioner had failed to establish that he was the 

adoptive parent or that he had met the requirements of the law as 

to legal custody and residence. By order dated October 2, 1958, the 

Board of Immigration Appeals reversed the decision of the district 

director denying the petition and directed that the visa petition be 

approved. 

Section 2 of Public Law 85-316 approved September 11, 1957 (71 

Stat. 639), amended the definition of the term "child" contained in 

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

1101(b) (1)) so that the relevant portion now provides: 

(b) As used in titles I and 11— 

(1) The term "child" means an unmarried person under twenty-one years 

of age who is- 

* • 

(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 yours. 

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. 

Included within the term "nonquota immigrant" as defined by 

section 101(a) (27) is "(A) an immigrant who is the child or the 

spouse of a citizen of the United States" (emphasis supplied). The 

procedure for obtaining noimuota or preference quota status on behalf of an alien is outlined in section 205 of the Immigration and 

Nationality Act which provides in part as follows: 

(b) Any Mfiggn of the United States claiming that any immigrant is his 

• * * child and that such immigrant is entitled to a nonquota immigrant status 

under section 101(a) (27) (A), * * * may file a petition with the Attorney 

General. • • * (Emphasis supplied.) 

Citizenship of the petitioner is conceded. The beneficiary was 

born in China on September 24, 1947, and it is alleged both of his 

natural parents are deceased. Petitioner, however, claims the beneficiary as his adopted child. 

1.56 
Affidavits have been submitted indicating that in 1947 the petitioner's wife, at the request of the child's natural mother and with 

the consent of the petitioner, adopted the child. Except for a brief 

period in 1957, the petitioner has been resident and physically present in the United States since prior to the alleged adoption. The 

petitioner and beneficiary have admittedly maintained no actual 

residence together except for a period of a few months in 1957. 

Assuming a valid adoption under Chinese law, the petition must 

nevertheless be denied as a matter of law. The fact that a parentchild relationship may exist under a foreign law or for some purposes is not the controlling consideration in this case. Such situations have previously arisen but the visa petition has nevertheless 

been denied where the application of the immigration laws required 

that result (Matter of M , 5 I. & N. Dec. 120 (Atty. Gen., 1953) ; 

Matte- of B—, 5 I. & N. Dee. 733 (1051)5 Matter of S , 5 I. & 

N. Dec. 289 (1953)). The sole legal issue to be determined is 

whether a parent-child relationship exists between the citizen petitioner and the beneficiary within the contemplation of the immigration laws so as to entitle the beneficiary to nonquota status where the 

citizen petitioner and beneficiary have not resided together for a 

period of 2 years. 

By section 205(b), a citizen may petition for nonquota status on 

behalf of hia child. The relevant portion of section 101(a) (27) 

defines a nonquota immigrant as the child of a citizen. Manifestly 

the relationship mast exist between the citizen petitioner and the 

beneficiary irrespective of the relationship between the beneficiary 

and the petitioner's spouse. The statute confers a personal benefit 

upon the citizen (Matter of IV—J-147—, 7 I. & N. Dec. 706 

(1958)). It would, therefore, seem to follow that the statutory prerequisites must be fulfilled by the relationship between the petitioner 

and the beneficiary before the benefit of nonquota status may be 

granted. 

Petitioner alleges that he consented to the adoption of the child 

by his wife in 1947 and it may be assumed that if there was a valid 

adoption, the requirements of legal custody have been met. However, the statute further provides that the child reside with the 

adopting parent or parents for 2 years. Since Congress provided 

for both legal custody and residence, it must be concluded that an 

actual residing together in addition to legal custody is required. The 

Service contends that the beneficiary must reside with the adopting 

citizen parent for 2 years before he may be considered a child under 

the provisions of the law. This interpretation is required by the 

clear wording of the statute which permits the petition to be filed 

only by the citizen parent, confers nonquota status only upon the 

child of the citizen, and sets forth certain prerequisites with which 

157 
the beneficiary must comply before he may be considered to be a 

child. 

The wording of the statute affords no basis for a conclusion that 

a residence by the child with the wife of the petitioner will suffice. 

By conferring nonquota status upon the adopted alien child who has 

resided for 2 years with the adopting parent, Congress manifested a 

desire to preserve existing bona fide family units of a citizen. A 

situation where the adopted child has never resided with the citizen 

parent is most certainly not an existing family unit of the citizen. 

Tt is undisputed that the requirements for legal custody and residence were included as safeguards to prevent abuse. An analysis of 

the abuses practiced in the past will demonstrate that the fraudulent 

claim to relationship in order to procure preferential treatment 

under the immigration laws has been one of the most troublesome. 

Particularly with respect to residents of countries where official 

records of marriages and births are not maintained, relationship 

must be established by means of parole evidence. In many such 

cases. citizens who have resided in the United States for many years 

have claimed as their offspring conceived during brief visits abroad, 

children with whom no residence as a family unit was ever maintained. Detection of spurious claims was a monumental task. This 

very problem was brought to the attention of the Senate Committee 

on the Judiciary in connection with all invoctigatinn of rmr immigration system and the Committee made special comment of the "widespread fraud" resulting from unfounded claims to relationship based 

upon periodic visits abroad by citizens resident in the United States. 

Furthermore, the Committee expressly cautioned that "it would be 

unwise to liberalize unduly the provisions of the law pertaining to 

the admission of adopted children of American citizens * * *." 

(Senate Report Nu. 1515, Stet Cong., 2d SeSe., April 20, 1950, pages 

468, 469.) 

The problems arising from these eases where there is maintained 

no residence as a family unit prior to the application for admission 

of the foreign-born child has also been the subject of judicial comment (Mar Gang v. MeGrannery, 109 F. Supp. 821 (N. D. Cal., 1952, 

remanded 209 F.2d 448); Tdnited States ex rel. Deng Wing Ott v. 

Shaughnessy. 220 F.2d 537, 540 (C.A. 2, 1955), cert. den. 350 U.S. 

847). It may, therefore, be assumed that Congress was keenly aware 

of the frauds prevalent in cases of alleged relationship between the 

resident parent and the non-resident child. In almost all of these 

cases, the alien spouse had remained abroad with the alleged child 

and could establish residence with the child. Consequently, when 

Congress created a requirement for 2 years' residence with the 

adopting parent or parents as a safeguard against fraud, residence 

with the citizen parent must have been intended. Nonquota status 

158 
may be conferred upon the adopted child but where residence with 

the adoptive citizen parent for 2 years has been established. This 

will insure the preservation only of an existing bona fide family unit 

of which the citizen parent is a part. No other interpretation will 

serve to carry out the legislative intent that the provisions eringtitni, 

a safeguard against abuse. 

To support the Board's interpretation, reference is made to the 

fact the statute employs the alternative term "adopting parent or 

parents." The answer is simply that in the absence of express statutory prohibition, either spouse may adopt a child without the other 

joining, or an unmarried person may adopt a child. 2 C.J.S. Adoption of Children, sections 9(b), 10. Furthermore, the particular 

proceeding under the immigration laws might involve one or both 

parents. The term is employed in a definition and was made broad 

enough to include various possibilities. 

The increased possibility of fraud through the interpretation 

adopted by the Board is demonstrated by this very case. To some 

extent, the success of spurious claims to relationship was curtailed 

by use of the blood-grouping test (Matter of L F F—, 5 

I. & N. Dec. 149 (1953)). Of course, such tests will serve no purpose 

with respect to adopted children. However, an absence from the 

United States for 2 years of the citizen petitioner may be subject 

to official verification. By holding that no residence of the beneficiary with the petitioner need be established, this possibility of detectingfraud is eliminated. 

No documentary evidence of adoption or residence of the child 

with either adopting parent has been submitted in this case and apparently such evidence is unavailable. Great stress is placed by the 

Board upon the fact that the declaration by the petitioner in Hong 

Kong was executed on February 16, 1957, prior to the enactment of 

Public Law-85-316. However, this affidavit was executed in support 

of an application for an immigrant visa under the Refugee Relief 

Act and was undoubtedly made in an effort to comply with the provisions of section 5 thereof (67 Stat. 400). The document is entitled 

to no greater weight than any other self-serving declaration made to 

gain an advantage under the law. 

The certificate issued by the Chinese Consulate General is based 

solely upon the statements of the petitioner and his wife and constitutes no independent evidence of adoption. Under Chinese law, 

an "infancy" adoption is not required to be in writing. 

In its deoicion, the Board comments upon certain photographs 

exhibited by counsel at oral argument but which have never been 

made a part of the record file. There is no indication that such 

photographs were presented to the district director charged with the 

responsibility for making the initial determination. The record 

159 
fails to disclose when, where, and under what circumstances the 

photographs were taken. No information is submitted concerning 

the relationship which existed between the natural mother and the 

petitioner or his wife to determine whether a possibility for the photographs other than residence together exists. 

At most, the photographs could have been given only a cursory 

examination at the time of the oral argument. Certainly, the Board 

is not unaware of the use of "doctored" photographs to support a 

claimed relationship. (See comment in Matter of L—F F—, 

5 I. & N. Dee- 149, 152) Manifestly, the photographs may be given 

no consideration in the determination of this case. 

From the foregoing, it is evident that sole reliance has been placed 

upon the uncorroborated, self-serving declarations made by the 

parties in order to qualify the beneficiary for nonquota status under 

the immigration laws. In view of the concern expressed by Congress 

with respect to the possibility of fraudulent adoptions to circumvent 

the law, such uncorroborated statements should be viewed with caution. The possibility of detecting fraud in this type of case is 

further reduced if no residence with the petitioner is required. 

The Service deco not contend that a fraud ha, been practiced in 

the instant case. The Service does contend that the interpretation 

of the statute adopted by the Board that the petitioner need not 

prove residence with the child will facilitate the perpetration of 

frauds particularly in cases where the proof consists of parole 

evidence. 

The legislative scheme calls for proof that the beneficiary has 

resided with the adopting citizen parent for at least 2 years in order 

to qualify as a child of the petitioner within the meaning of the 

immigration laws. Adopted children who are bona fide members of 

the family of the citizen will thereby be enabled to enter as nonquota 

immigrants. There is no family group of the citizen to preserve 

where the adopted child has never resided with the citizen parent. 

At the same time, the possibility of fraud through adoptions for 

the purpose of evading the quota provisions of the law will be reduced. Residence of the child with the citizen parent is more likely 

subject to official verification and lends considerable support to the 

conclusion that a parent-child relationship between the petitioner 

and beneficiary truly exists. This is the safeguard against abuse 

which Congress has provided. 

In view of the foregoing, it is believed that the instant application 

must be denied. Because of the importance of the issue presented, 

review by the Attorney General is deemed essential. 

Request is hereby made that this case be referred to the Attorney 

General for review pursuant to 8 CFR 6.1(h) (1) (iii). 

160 
BEFORE THE BOARD 

(October 31, 1958) 

Discussion: The case is before us on motion of the Acting Assistant Commissioner, Examinations Division, dated October 15, 

1956, requesting that the case be referred to the Attorney General 

for review pursuant to 8 MI 6.1(h) (1) (iii). 

The facts are fully set forth in our prior order of October 2, 1958, 

and the question of law involved is set forth in that order and in the 

present motion of the Service. Briefly, the petitioner, a native of 

China and a naturalized citizen of the United States, seeks nonquota 

status on behalf of the beneficiary as his adopted child, The petitioner was married in China on December 10, 1937. The beneficiary 

was born September 24, 1947, and was adopted in China during infancy on December 15, 1947, by the petitioner's wife with the consent 

of her husband, who was then in the United States. The child resided with the adoptive mother until she left for the United States 

in July 1957. The child resided with the adoptive father, the petitioner, when he went to China in 1957 to bring back his wife, and 

presently resides with the mother of petitioner's wife. It appears 

that the petitioner has maintained and supported the beneficiary. 

Under Chinese law, which is more fully set forth in our order of 

October 2, 1958, it appears that there was a valid adoption of the 

beneficiary by the petitioner and his wife and the Service apparently 

onneedec, for the purpose of this ease, that, there was a valid 

adoption. 

The issue put in focus by this motion is whether the beneficiary 

qualifies as an adopted child under the pertinent provisions of the 

immigration laws in view of the definition of the term "child" as 

contained in section 101(b) (1) of the Immigration and Nationality 

Act (8 U.S.C. 1101 (b) (1)), as amended by section 2 of the Act of 

September 11, 1957 (P.L. 85-316) which provides that: 

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

age who is— • 

(B) 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 * * *. 

The position of the Board is fully set forth in our order of October 2, 1958, and no purpose would be served in repeating those arguments. However, it is believed appropriate to answer the contentions made in connection with the Service motion. The Service 

concedes the citizenship of the adoptive father and even assumes that 

there has been a valid adoption under Chinese law. If there has 

been a valid adoption•, under Chinese law it is a valid adoption as 

to both the adopting mother and father, the latter having given his 

161 
consent to the adoption under Chinese law which requires that the 

adoption be by both spouses jointly. 

Section 205(b) referred to by the Service in its motion is simply 

a procedural section relating to the filing of a visa petition for anyone claiming that an immigrant is entitled to nonquota or preference 

status by means of such relationship, and, as has been demonstrated, 

the relationship of adoptive parent and child exists in this case. The 

definition of adopted child as set forth in section 101(b) (1) (E) of 

the Immigration and Nationality Act, as amended, does not require 

that the child he in the legal custody and rceide with the ciazen or 

petitioning adopting parent, but states simply that the child be in 

the legal custody of and reside with the adopting parent or parents. 

If it were intended that the citizen parent must- return to the foreign 

country to adopt a child and reside with the adopted child for 2 

years, such a cumbersome requirement would have been specifically 

written into the immigration laws and would not be left to implication. It is far more natural and logical that the wife and not the 

citizen husband, who is the wage earner, be permitted to adopt a 

child while remaining in the foreign country while waiting for her 

husband to send for her than to insist upon the interpretation sought 

by the Service. 

The Service refers to Matter of if , 5 I. & N. Dec. 120; Matter 

of B , 5 I. & N. Dec. 733; and Mattel,n f S—, 5 I. & N. Dec289, to support the argument that visa petitions have been denied 

where a parent-child relationship may exist under foreign law or 

for some purposes but have been denied where the application of the 

immigration laws required that result. The applicability of those 

cases to the present question is not clear. The first case involved a 

child born out of wedlock prior to the marriage of a woman to a 

petitioning United States citizen who was ruled flat to be a- stepchild 

within the meaning of section 101(b) (1) (B) of the Immigration 

and Nationality Act. The second case, Matter of B , supra, involved an attempted adoption at the Portuguese Consulate in New 

York of an illegitimate son residing in Portugal by a naturalized 

citizen residing in New Jersey. And this was held not to constitute 

a valid adoption, upon clear principles of conflicts of law. The third 

case, which occurred before the present amendment, simply stated 

that adoption by a person not the natural father of the child does 

not render the child legitimate and pointed out that the Immigration 

and Nationality Act at that time had no provision regarding adopted 

children. 

It is unfortunate that the Service has chosen to cite Matter of 

M , 5 I. & N. Dec. 120, because this administrative interpretation was the subject of pointed criticism by the Committee on 

the Judiciary in amending section 101(b) (1) of the Immigration 

162 
and Nationality Act so as to make sure that a child in such a 

situation could be treated as _a legitimate child and reiterated the 

past legislative history of the statutory language which made it clear 

that the underlying intent of the legislation, both past and present, 

was to preserve the family unit upon immigration to the United 

States (2 U.S. Code Congressional and Administrative News (85th 

Cong., 1st Sees.), pp. 2020-1). Thus, since it has been assumed 

that there has been a valid adoption by both parents under Chinese 

law, which occurred many years ago, and that the adopted child 

lived with and was reared by the adoptive mother and was supported by the adoptive father, there can be little doubt of the 

existence of a Sow jute family unit which it was the purpose of 

the amended immigration law to preserve. 

The Service next contends that the beneficiary must reside with 

the adopting citizen parent for 2 years before he Italy be considered 

a child under the provisions of the law and points with apprehension to possible spurious claims of children and to "widespread 

fraud" resulting from unfounded claims to relationship based upon 

periodic visits abroad by citizens resident in the United States; and 

refers to Senate Report No. 1515, 81st Cong., 2d Sess., April 20, 

1950, pages 468, 469, as authority for the proposition that the 

Committee on the Judiciary expressly cautioned that it would be 

unwise to liberalize unduly the provisions of law pertaining to the 

admission of adopted children of American citizens. However, the 

Service is strangely silent concerning the fact that as a result of 

the hardship arising out of the failure to make provisions for 

adopted children, this 1957 amendatory legislation was enacted for 

the express purpose of preventing hardships in cases where the child 

would not otherwise be able to accompany his adoptive parents. 

(See Senate Report No. 1057 (85th Cong., lst Seas.), p. 4; 2 U.S. 

Code Congressional and Administrative News (85th Cong., 1st 

Sess.) p. 2017). 

The fear of fraud in those cases where documents are not available and adoption must be proved by other evidence would not be 

solved by the provisions urged by the Service. La us assume 

that a couple had adopted a child in infancy in China and had legal 

custody of the child, and the child had resided with them for more 

than two years and thereafter the adoptive father conies to the 

United States and has become a citizen. It would still be necessary 

upon the petition filed by the citizen adoptive lather that proof of 

relationship and of the identity of the adopted child in the absence of official records be established to the satisfaction of the 

American Consul and the Immigration Service and to uncover any 

attempted fraud. 

163 
In its preoccupation with fraud in Chinese cases, the Service 

has referred to the court cases of Mar Gong v. McGrannery, 109 

F. Supp. 821, D.C. Cal., 1952, remanded 209 F.2d 448, and United 

States en rel. Dung TVing Ott a. A.S`haughnessy, 220 F.2d 557, 540 

(C.A. 2, 1055). The latter merely held that the requirement of a 

blood test as a part of the chain of evidence in establishing relationship was not a violation of due process and was justifiable where 

there was a lack of reliable government records of birth and parentage, difficulty of access to the area from which the claimed 

family groups came, and long absences from the family group of 

the citizen father. In reversing and remanding the Mar Gong 

case, the Ninth Circuit criticized the lower court judge who did not 

confine himself to the evidence before him but improperly gave 

weight to experiences in other cases involving a fraudulent pattern 

in arriving at findings adverse to the plaintiff in that case. 

The Service refers to the employment of the alternative term in 

section 101(b) (1) (E) employed in the definition relating to "adopting parent or parents" and states that in the absence of express 

statutory prohibition either spouse may adopt a child without the 

other joining, nr an unmarried person may adopt a child. With 

this construction, we have no quarrel; but if no express statutory 

prohibition was required, it was unnecessary to place this phrase 

in the alternative unless it was intended that the custody and residence could be with the one adopting parent or with either adopting 

parent, if such were the case. It is believed that in interpreting 

this provision to mean citizen adopting parent or parents, the Service has perhaps unwittingly confused section 2 of the Act of September 11, 1957 with section 4(b) of the same act, which in relation 

to eligible orphans provides for orphans who have been lawfully 

adopted abroad by a United States citizen and spouse or who will 

be adopted in this country by a United States citizen and spouse. 

If Congress saw fit to specify in section 4(b) that the adoption be 

by a citizen parent, it could easily have inserted the same requirement 'in section 2 of the same act. 

Although no objection was made at the time, the Service criticizes the Board order fog commenting upon certain photographs 

exhibited by counsel at oral argument, which it states had never 

been made a part of the record file or presented to the district 

director before making an initial determination, and ominously refers to the use of doctored photographs to support a claimed relationship without one scintilla of evidence that the photographs in 

the instant case were doctored or fraudulent. The Service is, of 

course, fully aware that these photographs must eventually be submitted to the American Consul who must be satisfied as to relationship and identity before issuing any visa. 

164 
In short, there has been demonstrated no basis for the Service 

apprehension that the interpretation placed upon the amendatory 

legislation will enhance fraudulent claims regarding adopted children. Congress was not primarily involved with the question of 

fraud, which mtrat be uncovered by in,e,tiw,inion conducted by the 

American Consulate abroad and by the Immigration Service just as 

any other claim of relationship where there is an absence of governmental records of birth, parentage, or, as in the present case, of 

adoption. Congress was greatly interested, however, in seeing that 

bona fide family units including adopted children were not separated 

and were permitted to come to this country. It did put certain 

limitations on adopted children for the purpose of preventing adoptions which were entered into merely for the purpose of permitting 

advantage to be taken of the immigration laws and for this reason 

inserted the requirement of two years' residence and legal custody. 

However, once it has been shown that these requirements have been 

met, and that there had existed for the required period a bona fide 

family unit, the beneficiary should thereafter be admitted to this 

country if it is established that he is the adopted child of the petitioner. The spectre of fraud drawn by the Service should not be 

permitted to defeat the intent of Congress in enacting this amendatory legislation for the purpose of providing for a more generous 

treatment of children in keeping with the concern of Congress with 

the problem of keeping families of United States citizens and of 

immigrants united. It is believed that no change should be made in 

our order of October 2, 1958. 

Order: In accordance with the provisions of 8 CFR 9.1(h) (1) 

(iii) the case is referred to the Attorney General in accordance 

with the request of the Acting Assistant Commissioner. 

BEFORE THE ATTORNEY GENERAL 

(April 27, 1959) 

Order: The order of the Board of Immigration Appeals, dated 

October 2, 1958, approving a petition for nonquota immigration 

status under section 205(b) of the Immigration and Nationality 

Act in this case, is disapproved and the order of February 12, 1958, 

denying the petition, is reinstated for the reasons herein stated. 

This case is before me pursuant to the provisions of 8 CFR 3.1 

(h) (1) (iii) for review of the decision by the Board of Immigration 

Appeals. 

The record establishes that the petitioner is a citizen of the 

United States by naturalization, the parent of a son, almost 12 

years of age, who was legally adopted by the petitioner's wife in 

China with his consent, when the child was less than 3 months old. 

165 
The record further establishes that the child has been in the custody 

of and has resided with the petitioner's wife in China since his 

adoption in 1947, except for the separation caused when she joined 

her husband to take up her residence in the United States during 

1957. The adoptive father now desires to bring the child to the 

United States to make his home. 

Section 2 of the Act of September 11, 1957 (Public Law 85-315) 

extends immigration privileges to "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 n.dopting parent or parents for 

at least two years * * s." These provisions are remedial in nature 

and were enacted by Congress to reunite an adopted child with his 

parents where a bona fide family relationship has been interrupted. 

Consistent with this Congressional purpose, I interpret the provisions of the law to require that the 2-year legal custody and residence of the adopted child be had with both the adoptive parents 

where 2 exist or with one when the family unit consists of only one 

adoptive parent. In ether words, it is restoration of a bona fide 

family relationship which is the Congressional objective. Since 

thn child in this ease has not resided with hia adoptive father, the 

petitioner herein, for the required 2 years, the petition must be 

denied. 

166