Interim Decision #1852 

MATTER or TAM 

In Visa Petition Proceedings 

A-17113720 

Decided by Board A.pri110, 1988 

The 1$135 infancy adoption in China by U.S. citizen petitioner's wife (while petitioner was in the United States) of beneficiary, who was given to her by a 

midwife, and whom petitioner believed to be his natural son until blood tests 

proved otherwise in 1967, at which time he consented to the adoption, thus 

ratifying the prior act of his wife in accordance with Article 1(174 of the Civil 

Code of China, is not a valid adoption within the meaning of section 101(D) 

(1) (B) of the Immigration and Nationality Act, as amended, since the ratification was not effected until betielicialy was approximately 28 years old. 

ON BEHALF or Ph.-zrzioriEs: Ow lissaix OF BIOWICE 

Benjamin Gim, Esquire B, A. Vielhaber 

217 Park Bow Appellate Trial Attorney 

New York, New York 10038 

u(Brief Bled) 

The case comes forward on appeal from the decision of the acting 

officer in charge, Hong Kong, B.C.C. dated November 27, 1967 denying 

the visa petition for the reason that the petitioner has failed to establish that he is a "parent" as defined in section 101(b) (2) of the Act or 

that the beneficiary was ever a "child" as defined in section 101(b) 

(1) (E) of the Act, in that, the consent and/or ratification which 

validated the adoption did not take place until the beneficiary was 

approximately 28 years of age and not prior to, as required, his 14th 

birthday. 

The petitioner, a native of China, a citizen of the United States by 

naturalization on January 10, 1955, 78 years old, male, seeks preference 

quota status on behalf of the beneficiary as his son. The beneficiary is 

a native and citizen of China, born June 25, 1939, married. The visa 

petition which was filed on June 19, 1967 stated that the beneficiary 

was not related to the petitioner by adoption. 

The notice of denial refers to an attached order dated November 24, 

1967 which sets forth the basis for the denial at length. Summarizing 

the facts, the petitioner also filed visa petitions on behalf of his wife 

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Interim Decision #1852 

and his daughters as well as his son. In the absence of civil records, 

blood tests were performed, the results of which showed that the blood 

grouping of the son was incompatible with those of the petitioner and 

his wife. The result of the blood grouping test was made known to the 

petitioner and on October 27, 1967 the petitioner presented a Statutory 

Declaration in which he set forth that on June 28, 1939 while he was 

in the United States, a male child was given to his wife by Chu Yeut 

Charm, a midwife, when the said child was three days old; that his 

wife had ever since kept and brought up the male child in their home; 

that she did not inform the petitioner the said child was in fact presented to her and he had therefore been under the impression that the 

said child was their own natural son, until his wife told him of the 

fact at the end of June 1967; no document of any kind was executed 

by any person in connection with the presentation of the child; there 

was no demand for any money or other consideration and that a customary gift was given to the midwife; the first time the petitioner 

saw the beneficiary, Tam Lim Wan, was on February 1, 1040 when he 

returned to his Toi Shan home from the United States, still then believing the beneficiary to be his own natural child. The facts in the 

Statutory Declaration were confirmed by the petitioner's -wife. It is 

noted that the beneficiary would have been approximately 28 years 

of age in June 1967 when the petitioner first obtained knowledge that 

the beneficiary was an adopted and not a natural child. 

A communication dated on November 18, 1967 from the Secretariat 

for Chinese Affairs, at Hong Kong reflects that the petitioner requested advice on the validity of his adoption of the beneficiary; that 

it appeared that the beneficiary was adopted by Madam Wong King 

Fong at Toi Shan, China in June 1939 when he was about three days 

old without the lmowledge of her husband and that the true fact of 

the adoption was not -revealed to the petitioner by his -wife until the 

end of June 1967 when he applied to the American Consulate General 

for his son's entry permit to the States. According to Article 1074 of 

the Civil Code which was.in force when the beneficiary was adopted by 

Madam Wong, when a married person adopts a child, she must do so 

jointly with the spouse; and according to Article 1079 of the code, 

adoption must be effected in writing, unless the person to be adopted 

has been brought up as a child of the adopter since infancy; in the 

circumstances, it was the opinion of the writer that the beneficiary was 

adopted by the petitioner's wife in June 1967 under the Civil Code. 

Article 1074 of the Civil Code of China, effective May 5, 1931 

provides that where a married person adopts a child, he must do so 

jointly with his spouse. Article 1079 of the Chinese Civil Code provides 

an adoption must be effected in writing unless the person to be adopted 

has been brought up as a child of the adoptive parents since infancy; 

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Interim Decision #1852 

infancy means under seven years of age. 1In order to be recognized 

as an adoption, it is necessary that the adoptive parents have brought 

up the child intending to adopt it; the mere fact of bringing up the 

child is not suffisient. 2 

Adoption is a juridical act creating between two persons certain 

relations, purely civil, of paternity and affiliation. Adoption in legal 

contemplation is the act by which the parties thereto establish the 

relationship of parent and child between persons not so related by 

nature. Acts of human kindness referable to an undertaking to rear 

and educate a helpless child do not prove an agreement to adopt; 

nor is loco ?arentzs the equivalent of adoption. 3 

It has been held that a beneficiary's adoption in China by petitioner's 

mother on behalf of, and without the knowledge of the petitioner, 

without the petitioner knowing of the existence of or personally 

meeting the beneficiary until the latter was over seven years of age, 

did not constitute a valid adoption in accordance with Article 1079 of 

the Chinese Civil Code since it was not established that the adoption 

was effected in writing or that the beneficiary was brought up since 

infancy, meaning under seven years of age, as a child of the adopter.' 

The requirement of Article 1074 of the Civil Code of China providing that a married person, in order to adopt a child, must do so 

jointly with his spouse, is satisfied for the immigration purposes 

where the evidence establishes a valid adoption by the female petitioner, residence and custody with the adoptive mother for more than 

two years, consent and ratification of the adoption by the father when 

the beneficiary was less than a year old. Such consent and ratification 

satisfies the requirements of a valid adoption under the provisions 

of section 101(b) (1) (E) of the Immigration and Nationality Act. 

In Matter of Jue, Int. Dec. No. 1750, the evidence established a valid 

infancy adoption by the mother which was ratified in infancy by the 

husband. Once the valid infancy adoption had been established, the 

adoption was valid for immigration purposes inasmuch as it was 

effected before the child had reached the age of 14 years. 

In the instant case the beneficiary was adopted in 1939 but the 

petitioner- had no knowledge that this beneficiary was an adopted 

child until June 1967 when he consented to the adoption thus ratifying 

the prior act of his wife. Prior thereto the petitioner had regarded the 

beneficiary as a natural son and was not made aware of the fact that 

1Matter of If—B—TV—, 9 I. & N. Dec. 610, 612. 

Matter of Chan, 11 L & N. Dec. 219, citing M. H. 'Van Der Talk, An Outtino 

of Modern Chineoe Family Law (1939), page 135, citing Dee. 1935-4823; Them 

1167 ; Eisti-fa-kung-pao 163. 

$ Matter of Chan,11 I. & N. Dec. 219, 222. 

• Matter of Laa,10 I. &N. Dec. 697. 

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the child was an adopted son until June 1967 when the child was almost 

28 years of age. The Secretariat for Chinese Affairs of the Government 

of Hong Kong, which is authorized to furnish opinions regarding 

Chinese Law and Custom, has advised that under the provisions of 

the Civil Code of China the effective date of the adoption was June 

1967. Counsel for .the respondent has produced no evidence to the 

contrary. The cases cited by counsel are not considered pertinent 

upon the facts in this case. Upon a full consideration of all the 

evidence the petitioner has not borne the burden of establishing that 

the beneficiary is an. adopted child as defined in section 101(h) (1) (E) 

of the Immigration and Nationality Act. The appeal will be 

dismissed. 

ORDER: It is ordered that the appeal be and the earns is hereby 

dismissed. 

603