Interim Decision #2165 

MATTER OF WONG 

In Visa Petition Proceedings 

A-19168778 

Decided by Board September 18, 1972. 

Since a visa petition involving a claimed adoptive relationship must be considered from a factual point of view to determine if the claimed familial 

relationship is established, the instant visa petition to accord beneficiary fourth 

preference classification on the basis of her claimed adoption in Hong Kong in 

1951 by the U.S. citizen petitioner's wife (allegedly unmarried at the time) is 

remanded to the District Director to make appropriate findings as to the factual 

validity of the adoption, with particular attention to the exploration of questions raised by certain factual discrepancies relating to identity of the parties 

and the existence of the adoptive relationship, and to require the submission of 

supporting secondary evidence in the form of affidavits executed by petitioner 

and his wife, by witnesses to the adoption, and by relatives and neighbors. 

ON BEHALF OF PETITIONER: 

Z. B. Jackson, Esquire 

580 Washington Street 

San Francisco, California 94111 

(Brief filed) 

ON BEHALF OF SERVICE: 

R. A. Vielhaber 

Appellate Trial Attorney 

(Brief filed) 

The United States citizen petitioner applied for preference 

status for the beneficiary as his married adopted stepdaughter 

under section 203(a)(4) of the Immigration and Nationality Act. 

The District Director, in an order dated April 16, 1969, denied the 

application. From that order the petitioner appeals. The case will 

be remanded. 

The beneficiary is a female of Chinese ancestry who was born in 

Canton, China in 1948. She was purportedly adopted in Hong Kong 

in 1951 by Leung Wai Jun, at a time when Leung Wai Jun was not 

married. The petitioner married Leung Wai Jun in Hong Kong in 

1959. The beneficiary, who was reportedly married in Hong Kong 

on March 14, 1959, now resides in French Guiana. 

The District Director denied the application for the reason that 

the purported adoption did not conform to Article 1078 of the Civil 

Code of the Nationalist Republic of China. Article 1078 required 

that an adopted child assume the surname of the adopter. The 

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Interim Decision #.4.1.0o 

petitioner urges that the Civil Code applies to his case. In the 

present case, the beneficiary, whose family name originally was 

Cheng, was reportedly given the name Wong May Po at the time 

of adoption. The petitioner claims that this was done because 

Wong was the surname of the deceased fiancé of Leung Wai Jun. 

It is settled that the law of adoption applicable to Chinese 

domiciled in Hong Kong, in addition to recent enactments by the 

Hong Kong government, has been Chinese law and custom. See 

Matter of Yue, 12 I. & N. Dee. 747 (BIA, 1968) and Matter of Ng, 

Interim Decision No. 2147 (BIA, April 28, 1972). The provisions on 

adoption of the Civil Code of the Nationalist Republic were in force 

in mainland China from May 5, 1931 until the People's Republic of 

China took over in 1950. The Civil Code remains in effect on 

Taiwan under the Nationalist government in power there. It 

never was in force in Hong Kong. Hence, the District Director was 

incorrect in relying upon the provisions of the Civil Code of the 

Republic of China in the present case. 

In any ease involving a claimed adoptive relationship, the 

petition must be considered from a factual point of view to see if 

the claimed familial relationship is established. 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 Branagan, 11 L & N. Dec. 493 (BIA, 1966). An 

application for preference classification must be accompanied by 

evidence of family relationship, 8 CFR 204.2(e)(1). 

In the present case the District Director never reached the 

question of the factual validity of the claimed adoption and made 

no findings in that regard. Hence, there are no findings before us 

for review. We shall remand the matter to the District Director in 

order that he may make the appropriate findings. In doing so, 

however, we believe it proper for us to note certain factual 

discrepancies that our examination of the record has disclosed. 

In any case in which an adoption is claimed to have taken place, 

it goes without saying that the identity of the parties must be 

established with a reasonable degree of certainty. In the present 

case, which involves a written agreement of adoption, there is no 

evidence that the petitioner's wife and the beneficiary are the 

persons named in the adoption paper. We note that the name of 

the adoptive parent is merely given as "Leung Shee." It is claimed 

that Leung Shee and Leung Wai Jun are the same person. 

When a Chinese female is married she retains her original 

family name and adds the suffix "Shee." The name "Leung Shee," 

then, could relate to any married female of the Leung family. We 

note that the petitioner's wife was allegedly unmarried at the time 

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Interim Decision #2165 

of the purported adoption. Therefore, she was not technically 

entitled to be called Leung Shee. 

In addition, the petitioner's wife stated under oath that at the 

time of the adoption she was living with her mother and a sister, 

Leung Chow Sue. A photograph submitted by the petitioner, 

identified as having been taken in 1960, shows an adult female 

with the name Leung Lai Ming. Leung Lai Ming is not further 

identified. If either Leung Chow Sue or Leung Lai Ming were 

married at the time of adoption she would have been entitled to 

the appellation "Leung Shee" and she could have been the 

adoptive mother referred to in the instrument. 

The fact that the beneficiary was given the surname of a 

deceased fiance of the petitioner's wife raises the possibility that 

the beneficiary was either (1) adopted by the deceased fiance's 

family, or (2) was actually an illegitimate child of the petitioner's 

wife. In the latter case she would still qualify as a "child" for 

purposes of the immigration laws, under section 101(bX1)(D). 

Inasmuch as the present case, like most Chinese adoption cases, 

is not grounded upon a recorded formal decree of adoption, it is 

necessary to determine the validity of the claimed adoption by 

means of a careful weighing of other probative secondary evidentiary material. 

Accordingly, it would be proper to require that the petitioner 

submit affidavits executed by (1) himself and his spouse, (2) 

witnesses to the adoption ceremony, and (3) relatives and neighbors. The record before us contains none of these. 

There are other actions on the part of the petitioner and his wife 

that seem inconsistent with the existence of an adoptive relationship. That is, the petitioner's wife came to the United States in 

1960, but waited eight years before attempting to bring the 

beneficiary here. Also, the petitioner made no reference to an 

adopted daughter at the time of his entry. 

In sum, a number of important questions have been raised 

which must be explored more fully. We feel that the proper 

development of the issues present in this case is essential before 

any determination can be made by us. For that reason the matter 

will be remanded to the District Director for further proceedings 

in line with the comments set forth above. The following order will 

accordingly be entered. 

ORDER: The case is remanded to the District Director for 

further proceedings consistent with the foregoing opinion. 

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