Interim Decision #2158 

MATTER OF KWAN 

In Visa Petition Proceedings 

A-17113672 

Decided by Board July 13, 1972 

As the validity of many claimed Chinese adoptions must be determined 

without benefit of a recorded formal adoption decree, resort must be had to 

other forms of probative evidence. Affidavits, photographs, letters, evidence of 

support, of residence, and other relevant documents should be submitted. 

Photographs should be positively identified and verified under oath. Petitioner 

should make clear what prior familial realtionship, if any, existed between the 

parties to the claimed adoption. Petitioner should submit (or satisfactorily 

explain the absence of) affidavits executed by (1) both adoptive parents, (2) 

witnesses to the adoption ceremony, and (3) relatives and neighbors. Affidavits submitted should (1) state the nature of the affiant's relationship, if any, 

to the parties; (2) set forth the basis of affiant's knowledge; and (3) contain a 

statement of the facts affiant knows regarding the adoption, rather than mere 

conclusory statements as to the existence of the adoption. Information in an 

affidavit should not be disregarded simply because it appears to be hearsay; in 

administrative proceedings, that fact merely affects the weight to be afforded 

it. Additionally, there is an exception to the hearsay rule relative to statements as to pedigree and family history made by relatives or members of the 

same community. 

ON BEHALF OF PETITIONER: Pro se 

The United States citizen petitioner applied for preference 

status for the beneficiary as her adopted daughter under section 

203(aX1) of the Immigration and Nationality Act. The District 

Director approved the petition on January 2, 1971. However, his 

initial approval was revoked on August 9, 1971, on the basis of this 

Board's decision in Matter of Yiu, Interim Decision No. 2061 (BIA, 

1970). The petitioner appeals from the revocation. The appeal will 

be sustained, but the case will be remanded. 

The beneficiary is a female who was born in China on December 

5, 1946. The file contains a written agreement of adoption dated 

August 20, 1949, as well as other supporting affidavits. 

The District Director's revocation of his initial approval was 

prompted by a letter from the United States consulate in Hong 

Kong calling the District Director's attention to this Board's 

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Interim Decision #2158 

decision in the Yiu case, which was rendered on November 19, 

1970. The letter requested reconsideration and possible revocation 

on the basis of the Yiu decision. 

The District Director's reliance upon the Yiu decision as authority for revoking his initial approval of the petitioner's application 

was misplaced. Inasmuch as the adoption in question evidently 

took place in 1949, it would be governed by the adoption provisions 

of the Civil Code of the Nationalist Republic of China. These 

provisions went into effect on May 5, 1931 and remained in effect 

until the Communist takeover in 1950. The law applicable to the 

Yiu case, on the other hand, was the Ching Code, which ceased to 

have effect in mainland China upon being superseded by the 1931 

adoption law. 

In any event, the Yiu case no longer serves as a precedent 

decision. Subsequent to the District Director's decision to revoke 

the initial approval of the petitioner's application, this Board had 

occasion to reconsider the principles enunciated in the Yiu case. 

As a result, in our recent precedent decision in Matter of Ng, 

Interim Decision No. 2147 (BIA, April 28, 1972), we expressly 

overruled our earlier holding in the Yiu case. 

In addition, in Matter of Kwok, Interim Decision No. 2145 (BIA, 

April 25, 1972), we rejected the Service's argument that Chinese 

adoptions, even though valid under the law of the place where the 

adoption status was created, nevertheless do not constitute "adoptions" for immigration purposes if not created as a result of a 

"juridical act." 

Even though the legal impediments to the recognition of 

Chinese adoptions in general, and the adoption of females in 

particular, have been removed, each petition based upon an adoptive relationship still must be considered from the factual point of 

view. In visa petition proceedings the burden of proof to establish 

eligibility for the benefit sought under the immigration laws rests 

with the petitioner, Matter of Brantigan, 11 I.& N. Dec. 493 (BIA, 

1966). An application for preference classification must be accompanied by evidence of family relationship, 8 CFR 204.2(cX1). 

Inasmuch as most Chinese adoption cases must be decided 

without benefit of a recorded formal decree of adoption, it is 

permissible to resort to other forms of probative evidence in order 

to reach a decision as to the validity of the adoption. 

For instance, it would be proper for the petitioner to submit 

affidavits executed by (1) both adoptive parents, (2) witnesses to 

the adoption ceremony, and (3) relatives and neighbors. The 

absence of such affidavits is a factor the petitioner must satisfactorily explain. Affidavits submitted should (1) state the nature of 

the affiant's relationship, if any, to the parties, (2) set forth the 

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Interim Decision #2158 

oasis of the affiant's knowledge, and (3) contain a statement of the 

'ads the affiant knows regarding the adoption, rather than mere 

:onclusory statements as to the existence of the adoption. Information contained in an affidavit should not be disregarded simply 

)ecause it appears to be hearsay. In administrative proceedings 

hat fact merely affects the weight to be afforded such evidence, 

lot its admissibility. It should also be noted that there is an 

exception to the hearsay rule on behalf of statements as to pedigree 

ind family history made by (1) relatives or (2) members of the same 

:ommunity. 

In the present case the petitioner has based her entire claim 

zpon a written adoption agreement and the affidavits of herself, 

;he beneficiary and two fellow villagers. These affidavits fail to 

nention the basis of knowledge of the latter two persons or their 

•elationship to thb parties. All four affidavits fail to recite the 

'actual details surrounding the claimed adoption. Hence, we are 

mable to consider them sufficient corroboration for the written 

agreement of adoption. 

It is well known that the Chinese possess particularly strong 

'wilily ties and sentiments. Hence, we believe that it would be 

seasonable to expect in most cases where a genuine adoption has 

,aken place that the persons involved would have taken numerous 

'vainly photographs over the years. This might not be true, of 

,nurse, in the case of persons living in remote areas with limited 

recess to photographic facilities or equipment. Such pictures 

;hould be positively identified, verified under oath and submitted 

with the application. In the present case none have been submited, despite the fact that the adoption purportedly took place back 

n 1949_ The unavailability of such pictures is a factor that should 

ie explained to the satisfaction of the District Director. 

Frequently, as in the present case, it is claimed that an adoption 

,00k place while the adoptive father was not present. It was held, 

n Matter of Y—K—W—, 9 I. & N. Dec. 176 (A.G., 1961), that the tworear legal custody and residence requirement contained in section 

.01(bX1XE) of the Immigration and Nationality Act may be satisled when custody and residence have been with only one of the 

adoptive parents. However, there must be sufficient evidence in 

he record from which the District Director could conclude that 

he custody and residence requirements have been met on the 

mrt of at least one of the parents. In the present case all that 

ve are able to glean from an examination of the file is the fact 

hat the petitioner's spouse left China in 1933 and went to the 

'hilippines, where he presently resides. There is no information as 

o when the petitioner and the beneficiary left China and made 

heir way to Hong Kong. No evidence as to the residences of the 

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Interim Decision #2158 

parties has been presented. We must conclude, therefore, that the 

present record is insufficient to show compliance with the residence and custody requirements of section 101(b)(1XE). 

In cases such as the present one, involving adoptions claimed to 

have occurred in mainland China under the Nationalists, the 

adoption provisions of the Civil Code of the Republic of China must 

be taken into account. 

Two sections of the Civil Code may be relevant to this case. First, 

Article 1074 of the Code required that when a married person 

adopted a child, he secured the consent of his spouse. See Matter of 

Jue, 12 I. & N. Dec. 296 (B IA, 1967). Second, Article 1080 provided 

for termination of an adoption by mutual consent. See Matter of 

Lee, Interim Decision No. 2098 (BIA, 1972). 

In the present case, the file before us contains no solid probative 

evidence that the petitioner's spouse consented to an adoption. 

Indeed, it is noteworthy that there is nothing at all from him, even 

though he is presumably alive in the Philippines. The absence of 

an affidavit from him has not been satisfactorily explained. We 

also note the absence of any letters from him, or evidence that he 

contributed to the support of the beneficiary. As a result, we are 

not prepared to find that the petitioner has demonstrated compliance with the requirements of Article 1074 of the Civil Code, and 

we cannot rule out the possibility that the adoption was terminated by mutual consent pursuant to Article 1080 of the Civil 

Code. 

In any Chinese adoption case the petitioner should make clear 

what prior familial realtionship, if any, existed between the parties 

to the claimed adoption. In Matter of Yuen, Interim Decision No. 

2120 (BIA, 1972), we said that such factors as an uncle-nephew 

relationship, or that the alleged adopted child continued to remain 

with his natural parents instead of coming under the parental 

control of the alleged adoptive parent cast doubt upon the bona 

fides of the adoption. When such factors are present, the doubt 

raised must be explained away by means of sufficient evidence. 

In the present case it was not disclosed until the notice of appeal 

was filed that the petitioner is the aunt of the beneficiary. That 

fact was never before the District Director for his consideration. 

The doubt raised as to the bona fides of the adoption has not been 

eliminated. 

In sum, a number of questions have been raised which have not 

been fully explored or satisfactorily explained. We feel that further 

development of the issues present in this case is essential before 

any determination can be made by us. Even though we shall 

sustain the appeal on the ground that the revocation was not 

correct for the reason given, we are unable to reinstate the 

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Interim Decision #2158 

approval of the petition initially granted by the District 'Director. 

The case will be remanded and the following order will accordingly 

be entered. 

ORDER: The appeal is sustained, but the case is remanded to 

the District Director for further proceedings consistent with the 

foregoing opinion. 

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