Interim Decision #2130 

MATTER OF YUEN 

In Visa Petition Proceedings 

A-19458534 

Decided 51/ Beard March 13, 1972 

Beneficiary, who was born in China in 1950, allegedly adopted there in 1956, in 

absentia, when the adoptive parents were both permanent residents of this 

country, and who did not become a member of their household until he visited 

the United States in 1968 at age 18, is denied preference classification under 

section 203(a)(1), Immigration and Nationality Act, as amended, as an unmarried son, since (1) a true parental relationship was not created before age 14 so 

as to constitute an adoption within the meaning of section 101(bX1XE) of the 

Act; (2) there is no showing that the State of New York, of which the adoptive 

parents were residents at the time of the claimed adoption, recognizes the 

validity of the adoption; and (3) there is doubt as to the bona fides of the 

adoption since beneficiary is the blood nephew of the petitioner, a written 

agreement of the adoption was never produced, and the only supporting 

evidence is the uncorroborated affidavit of the petitoner. 

ON BEHALF OF PETITIONER: Elmer Fried, Esquire 

515 Madison Avenue 

New York, New York 10022 

The United States citizen petitioner applied for immediate 

relative status for the beneficiary as his adopted child under 

section 201(b) of the Immigration and Nationality Act. The District 

Director denied the application in an order dated May 14, 1971, and 

the petitioner appeals from that order. The appeal will be dismissed. 

The beneficiary is an unmarried male who was born in the 

Peoples Republic of China on March 9, 1950. The petitioner claims 

that he is his adopted son. The petitioner's affidavit recites the 

following facts: (I) he was born in China in 1899; (2) he lived in the 

United States since 1915; (3) he visited China in 1933 and got 

married there; (4) he then returned to the United States; (5) his 

wife remained in China until 1950, when she fled to Hong Kong; (6) 

in 1956 the wife entered the United States as an alien lawfully 

admitted for permanent residence; ('7) an adoption of the beneficiary purportedly occurred in the Peoples Republic of China on 

September 12, 1956; (8) an adoption agreement was allegedly 

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Interim Decision #2130 

executed but no copy of it is available; (9) at some undisclosed time 

after 1956 the beneficiary was taken to Hong Kong where he 

resided with his sister and the petitioner's mother-in-law (possibly 

the beneficiary's grandmother) until 1968; (10) on October 5, 1968 

the beneficiary came to the United States for a visit and has 

resided with the petitioner and his wife ever since; and (11) on 

January 13, 1971, before the beneficiary attained the age of 21 years, 

the present petition was filed. 

The petition was evidently filed to accord the beneficiary immediate relative status as a "child" under section 201(b) of the Act. 

Section 101(bX1) defines a "child" to mean an unmarried person 

under the age of 21 years. On May 14; 1971, the date of the District 

Director's decision, the beneficiary was over 21 years of age. 

Immediate relative status under section 201(b) was no longer 

available to the beneficiary once he passed his twenty-first birthday, since he no longer was the "child" of a United States citizen. 

The District Director apparently treated the petition as one to 

accord the beneficiary preference status as an unmarried son 

under section 203(a)(1) of the Act. We agree with the District 

Director that this was the correct way to consider the present 

petition. 

There is no definition of "son" in the Immigration and Nationality Act, but "child" is defined in section 101(b)(1XE) to include 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. This Board has held in a 

prior precedent decision that aliens adopted by United States 

citizens are not eligible for preference status as a "son" or 

"daughter" unless they were adopted in conformity with section 

101(bX1XE), Matter of P—, 8 I. & N. Dec. 527 (BIA, 1960). See also 

Matter of Calronictinzctna, 12 I. & N. Dec. 47 (BIA, 1967). Hence, the 

benefit of section 203(a)(1) is not available to the beneficiary unless 

prior to his twenty-first birthday he would have come within the 

definition of adopted child set forth in section 101(b)(1XE). 

The definition of "child" contained in section 101(b)(1) did not 

extend to an adopted child until section 101(b)(1XE) was added by 

the Act of September 11, 1957 (71 Stat. 639). The amendment was 

designed to prevent hardship and to keep families together. At the 

same time Congress desired to prevent the recognition of ad hoc 

adoptions made only for the purpose of circumventing the immigration laws. In conformity with the intent of Congress, we have 

held that an adoptive relationship relied upon to support the 

granting of a petition for visa preference must rest upon a valid 

subsisting adoption, Matter of Chan, 12 I. & N. Dec. 513 (BIA, 1967). 

In another decision, unfortunately unpublished, we sustained the 

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Interim Decision #2130 

denial of a preference petition where the beneficiary had not come 

under the parental control of the petitioner but had continued to 

reside in the home of her natural parents, Matter of Chapralis, 

A-14922517 (unreported, BIA, October 24, 1967). In that case we 

found that the existence of an adoption in the ordinary legal sense 

of the term had not been established. We take note of the fart that 

Bouvier's Law Dictionary, 3rd edition, defines adoption as: "The act 

by which a Person takes the child of another into his family, and 

treats him as his own." 

In the preent case the beneficiary left his birthplace in China 

sometime after the alleged adoption occurred and went to Hong 

Kong, where he resided with his sister and another woman, the 

petitioner's mother-in-law. He remained in Hong Kong until 1968, 

when he came to the United State as a visitor. Since that time he 

has been living with the petitioner and the petitioner's wife. At no 

time between the date of the purported adoption and his fourteenth birthday did the beneficiary spend any time in the same 

country as the petitioner or his wife. He was eighteen years of age 

when he finally reached them in 1968. It cannot be said that, prior 

to the time he attained the age of fourteen years, the beneficiary 

actually entered the family or household of the petitioner. On the 

basis of these facts we are unable to find that a true parental 

relationship was created before the age of 14 years. Therefore, we 

cannot find that an adoption occurred within the comtemplation of 

section 101(b)(1)(E) of the Act. 

In the present case the beneficiary was purportedly adopted in 

the Peoples Republic of China at a time when the petitioner and 

his wife were both permanent residents of the United States. The 

petitioner claims that there was an adoption by his wife, in 

absentia, with his approval. In an earlier decision, involving the 

adoption of a child residing in Portugal by a United States citizen 

residing in New Jersey, which adoption was effected in the 

Portuguese consulate in New York City, we refused to recognize 

the adoption for immigration purposes in the absence of any 

showing that the adoption would be recognized as valid by either 

the State of New York or the State of New Jersey, Matter of B—, 5 

I. & N. Dec. 733 (BIA, 1954). We realize that in the present case the 

question as to the extraterritorial effect to be given a foreign 

adoption law has not been raised. Nevertheless, we believe that 

the principle set forth in Matter of B—, supra, applies to the 

present case as well. The facts in the present case present an even 

weaker case in favor of the validity of the adoption than in Matter 

of B—, supra. Accordingly, since the petitioner and his wife were 

apparently residents of New York State at the time of the claimed 

adoption, we cannot accept the adoption as valid for immigration 

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Interim Decision #2130 

purposes because there is no showing that the State of New York 

recognizes the validity of the adoption. 

Furthermore, the fact that the beneficiary is the blood nephew 

of the petitioner, coupled with the fact that a written agreement of 

adoption was never produced raises doubt as to the bona fides of 

the adoption. We also note that the file contains no evidence in 

support of the adoption other than the uncorroborated affidavit of 

the petitioner. The petitioner has failed to explain away the doubt 

present in this case and the file contains insufficient evidence to 

prove the existence of any adoption. 

The District Director denied the petition for a different reason, 

namely, on the ground that "customary adoption cannot have 

occurred in Mainland China since May 1, 1950 as all previous laws 

were abrogated and no provisions for adoption have since been 

created by the Government in power." We need not delve into this 

question since we dispose of this appeal on the other grounds set 

forth above. 

Although for different reasons than the one given by the 

District Director, we hold that the District Director was correct in 

finding that the petitioner has not borne the burden of establishing that the beneficiary is an adopted child under section 201(b) or 

an unmarried adopted son for purposes of section 203(a)(1). Therefore, the beneficiary is not eligible for either immediate relative or 

preference status under those sections of the Act. The appeal 

accordingly will be dismissed and the following order will be 

entered. 

ORDER: The appeal is dismissed. 

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