Interim Decision #3117 

MATTER OF CUELLO 

In Visa Petition Proceedings 

A-27264727 

A-27264728 

Decided by Board July 25, 1989 

(1) Where an adoption has been effected, be it intrafamily or otherwise, and the adopted 

child continues to reside in the same household with the natural parent or parents 

during the period in which the adoptive parent seeks to establish his or her compliance 

with the statutory residence requirement of section 101(b)(1)(E) of the Immigration 

and Nationality Act, 8 U.S.C. § 1101(b)(1)(E) (1982), the petitioner has the burden of 

establishing that the adoptive parent exercised primary parental control during that 

period of residence. 

(2) Evidence of parental control may take many forms, including competent objective 

evidence that the adoptive parent owns or maintains the property where the child 

resides, provides financial support and day-to-day care, and assumes responsibility for 

important decisions in the child's life. 

(3) The evidence must clearly establish the physical living arrangements of the adopted 

child, adoptive parents, and the child's natural parents during the period of time in 

which the adoptive parent seeks to establish compliance with the residence requirement of the statute and, where a fraudulent or ad hoc adoption is suspected, during 

any period following the adoption which the adjudicating officer deems appropriate. 

(4) Where a petitioner establishes compliance with the statutory requirements of section 

101(h)(I)(E) of the Act, demonstrating, where necessary, primary parental control 

during the parties' residence with one another, the relationship will he presumed bona 

fide in the absence of evidence indicating otherwise. Matter of Yuen, 14 I&N Dec. 71 

(BIA 1972); and Matter of Tang, 14 I&N Dec. 180 (BIA 1972), distinguished. 

ON BEHALF OF PETITIONER: Pro se 

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members 

In a decision dated June 9, 1986, the acting officer in charge denied 

the visa petitions filed by the petitioner to accord the beneficiaries 

immediate relative status as his adopted children under section 201(b) 

of the Immigration and Nationality Act, 8 U.S.C. § 1151(b) (1982). 

The petitioner appealed from that decision. The record will be 

remanded for further proceedings before the officer in charge. 

The petitioner, a 54year-old native of the Philippines and citizen of 

the United States, adopted the beneficiaries, natives and citizens of the 

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Interim Decision #3117 

Philippines, on April 21, 1976, when they were 2 1/2 and 6 1/2 years 

old. The beneficiaries' surname was changed to that of the petitioner at 

the time of the adoption. The petitioner filed his visa petitions on the 

beneficiaries' behalf on April 14, 1986, when they were 12 and 16 

years of age. 

The record reflects that the beneficiaries are the natural children of 

the petitioner's sister. The record further reflects that the petitioner 

retired from the United States Navy, after 22 years of service, on 

September 4, 1974, after which he returned to the Philippines and 

resided with the beneficiaries for almost 2 years. In May 1976, 1 

month after he adopted the beneficiaries, the petitioner returned to the 

United States in order to work to supplement his income and to avail 

himself of G.I. benefits by attending school at South Western College 

and the San Diego University. He returned to the Philippines in 1981 

and has since resided with the beneficiaries in his home in Cavite City, 

Philippines. 

Notes from an Immigration and Naturalization Service interview 

with the petitioner reflect that the beneficiaries' natural father 

disappeared in 1977 and his present whereabouts are unknown, that 

the beneficiaries' natural mother resides in the petitioner's home with 

him and the children, that the beneficiaries' birth records were 

amended subsequent to the adoption to reflect the petitioner as lather, 

that the petitioner supports the beneficiaries, and that the children 

address him as "father" or "uncle." The notes further reflect that the 

petitioner did not claim the children as his dependents on his income 

tax returns or as beneficiaries of his navy retirement benfits, and that 

he had not signed the children's report cards. 

At the time the acting officer in charge entered his decision in this 

case, section 101(b)(1)(E) of the Act, 8 U.S.C. § 1101(b)(1)(E) (1982), 

included within the definition of the term "child," "a child adopted 

while under the age of sixteen years if the child has thereafter been in 

the legal custody of, and has resided with, the adopting parent or 

parents for at least 2 years." 

In his June 9, 1986, decision denying the visa petitions, the acting 

officer in charge cited Matter of Yuen, 14 I&N Dec. 71 (BIA 1972), 

and Matter of Tang, 14 I&N Dec. 180 (BIA 1972), for the proposition 

that a true parental relationship must be created by an adoption and 

that the adoption of blood relatives casts doubt as to the bona fides of 

the adoption. The acting officer in charge concluded that a true 

parental relationship had not been created by the instant adoptions 

and that the bona fides of the adoptions had thus not been established. 

The acting officer in charge based his conclusion on the following 

evidence of record: (1) the beneficiaries are the nephews of the 

petitioner; (2) the beneficiaries' natural mother resided in the petition95 
Interim Decision #3117 

er's home with the beneficiaries while the petitioner allegedly raised 

the beneficiaries; (3) there was no change in the natural mother's 

relationship with the beneficiaries following the adoption; (4) the 

beneficiaries continued to use their natural parents' surname in school 

after the adoption; (5) the beneficiaries' birth registrations were not 

amended until shortly before the visa petitions were filed on their 

behalf; (6) the beneficiaries were not claimed as dependents on the 

petitioner's income tax returns or naval retirement records, nor was 

the petitioner named as father of the beneficiaries on their school 

records; and (7) the petitioner left the Philippines 1 month after he 

adopted the beneficiaries. 

In his brief on appeal, the petitioner states that the notes of his 

interview with the Service misconstrue the relationship and living 

pattern between himself, the beneficiaries, and their natural mother. 

He explains that the beneficiaries' natural mother only lived with them 

occasionally, particularly when the children were sick, that he did not 

claim the children as dependents on his income tax returns due to his 

belief that such dependents had to be residents and citizens of the 

United States, that the children have dependent identification cards 

from the United States Armed Forces and are the designated 

beneficiaries of his naval retirement benefits and his life insurance 

policies, and that the children did not use his surname at school 

because they did not have their amended birth certificates to present 

to the school due to an administrative foul-up after the adoption. He 

also stated that he waited to file the visa petitions on the beneficiaries' 

behalf because he wanted his older son to finish his schooling at an 

academy in the Philippines before going to the United States. 

We note at the outset that the acting officer in charge denied the 

visa petitions without first giving the petitioner notice of the proposed 

basis for the denial or affording him an opportunity to rebut or explain 

the questions the acting officer in charge raised with regard to the bona 

fides of the adoption. This Board recently held that where a petitioner 

was not put on notice of a deficiency of proof and given a reasonable 

opportunity to address the deficiency before the denial of a visa 

petition, and the petitioner proffers additional evidence addressing the 

deficiency on appeal, the Board will ordinarily remand the record to 

allow the adjudicating officer to consider and address the new 

evidence. Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also 8 

C.F.R. § 103.2(b)(2) (1988). We find that our holding in Matter of 

Soriano mandates a remand in this case. 

We note, moreover, that the cases cited by the acting officer in 

charge, Matter of Yuen, supra, and Matter of Tang, supra, are 

distinguishable from the instant case. Matter of Yuen was a factually 

unique case, involving an adoption created after the Civil Code of 

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China was suspended in 1950 by the Communist Chinese Government 

which had seized control of mainland China. Inasmuch as the 

Communist government promulgated no specific procedural or substantive requirements for creating an adoption to replace the Civil 

Code, the Board was forced in Yuen to look to de facto criteria to 

determine whether an adoption was in fact effected. See generally 

Matter of Chu, 19 I&N Dec. 81 (BIA 1984). 

In Matter of Yuen, supra, the petitioner, a blood uncle of the 

beneficiary, allegedly adopted the beneficiary in absentia in 1956, 

when the beneficiary was 6 '1/2 years old. No written adoption 

agreement was ever produced, and the only evidence of the adoption 

was an uncorroborated affidavit of the petitioner. The case was 

decided on a number of grounds, including the fact that the beneficiary 

did not actually enter the family or household of the petitioner until 

1968, after the beneficiary had reached the age of 14 years, the age 

limit for creating an adoption prescribed at that time by section 

101(b)(1)(E) of the Act. We concluded that a "true parental relationship" had not been created prior to the statutory age limit for effecting 

adoptions. The Board also stated that the bona fides of the adoptive 

relationship were in doubt because of the blood relationship between 

the petitioner and the beneficiary and the absence of a written 

agreement of adoption. Id. 

Matter of Tang, supra, dealt with a pre-1950 Chinese adoption in 

which the authenticity of the written instrument of adoption, which 

was required by Article 1079 of the Civil Code of China, was not 

established by any credible evidence. Thus, the Board disposed of the 

case on the ground that there was insufficient evidence to demonstrate 

that a legally valid adoption had been effected. Although the Board 

went on in Tang to discuss the bona fides of the adoption, that 

discussion was dicta. 

Although we do not consider Matter of Yuen and Matter of Tang to 

be controlling in the instant case, we find that an inquiry into the 

nature of the relationship between the adopted child and adoptive 

parents, as compared with the relationship between the child and his 

or her natural parents, is appropriate in determining whether the 

residence requirement of section 101(b)(1)(E) of the Act has been 

satisfied. 

Where an adoption has been effected, be it intrafamily or otherwise, 

and the adopted child continues to reside in the same household with 

the natural parent or parents during the period in which the adoptive 

parent seeks to establish his or her compliance with the statutory 

residence requirement of section 101(b)(1)(E) of the Act, the petitioner 

has the burden of establishing that the adoptive parent exercised 

primary parental control during that period of residence. Evidence of 

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Interim Decision #3117 

parental control may take many forms, including but not limited to, 

competent objective evidence that the adoptive parent owns or 

maintains the property where the child resides, provides financial 

support and day-to-day care, and assumes responsibility for important 

decisions in the child's life. The evidence must clearly establish the 

physical living arrangements of the adopted child, adoptive parents, 

and the child's natural parents during the period of time in which the 

adoptive parent seeks to establish compliance with the residence 

requirement of the statute and, where a fraudulent or ad hoc adoption 

is suspected, during any period following the adoption which the 

adjudicating officer deems appropriate. Documentary evidence and 

detailed, nonconclusory affidavits may be submitted in support of the 

petitioner's claim of primary parental control.' 

In the instant case, the continuing presence or influence of the 

natural mother in the adopted children's life necessitates inquiry into 

the nature of the parties' residence with one another. We note that 

where a petitioner establishes compliance with the age and legal 

custody requirements of section 101(b)(1)(E) of the Act, and the 

statute's residence requirement by, where necessary, demonstrating 

primary parental control during the parties' residence with one 

another, the relationship will be presumed bona fide in the absence of 

evidence indicating otherwise. See generally Matter of Repuyan, 19 

I&N Dec. 119 (BIA 1984). 

The record will be remanded to the officer in charge for reconsideration of his decision in light of the foregoing discussion. On remand, 

the petitioner should be granted an opportunity to submit objective 

evidence to substantiate the explanations proffered on appeal and to 

offer whatever additional evidence he may wish to present in support 

of his visa petitions. The burden of proof remains with the petitioner 

on remand to establish eligibility for the benefits sought. Matter of 

Brantigan, 11 I&N Dec. 493 (BIA 1966). 

ORDER: The record is remanded to the district director for 

further proceedings consistent with the foregoing opinion and for the 

entry of a new decision. 

FURTHER ORDER: Should a decision on remand be adverse to the petitioner, an appropriate order shall be entered and the 

record shall be certified to the Board for review. 

'Service instructions accompanying visa petitions require that affidavits be sworn to 

by persons who were living at the time, and who have personal knowledge of the event to 

which they attest. Further, each affidavit must contain the affiant's full name and 

address, date and place of birth, relationship to the parties, if any, full information 

concerning the event, and complete details concerning how he or she acquired 

knowledge of the event. 

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