Interim Decision #2145 

MATTER OF KWOK 

In Visa Petition' Proceedings 

A-19406572 

Decided by Board April 25, 1972 

(1) The validity of the infancy adoption of beneficiary in mainland China in 1936 

is not vitiated by the fact beneficiary is a female, since Article 1072 of the Civil 

Code of the Republic of China specifically provided for the adoption of either 

males or females. [Matter of Yin, 13 I. & N. Dee. 624, distinguished.] 

(2) The contention that an adoption must be accomplished by a juridical act 

before it can be recognized as valid for immigration purposes, is rejected. 

Matter of Fong, 10 I. & N. Dec. 497; Matter of Chin, 12 I. & N. Dec. 240; Matter 

of Jae, 12 L & N. Dec. 296; Matter of Chan, 12 I. & N. Dec. 513; among other 

prior precedent decisions which recognized Chinese adoptions, even though 

created without benefit of a juridical act, are reaffirmed. 

(3) The long-standing rule that the validity of an adoption for immigration 

purposes is governed by the law of the place where the adoption occurred 

(Matter of 5 L & N_ Dee. as, 6 I. & N. Doe. 760), io reaffirmed. 

ON BEHALF OF PETITIONER: ON BEHALF OF SERVICE: 

Benjamin Gim, Esquire R. A. Vielhaber 

217 Park Row Appellate Trial Attorney 

New York, New York 10038 

The United States citizen petitioner applied for preference 

status for the beneficiary as his adopted daughter under section 

203(a)(1) of the Immigration and Nationality Act. The facts are not 

in dispute. The District Director, on January 14, 1971 found that 

an adoption had occurred under the laws of China and approved 

the petition. However, his initial approval was revoked on July 22, 

1971 on the basis of this Board's decision in Matter of Yiu, 13 I. & 

N. Dec. 624 (B IA, 1970). The District Director construed Matter of 

Yin to rule out a valid adoption in the present case because the 

beneficiary is a female. The petitioner appeals from the revocation. 

His appeal will be sustained. 

The record indicates that the beneficiary was adopted in China 

in May of 1936. The beneficiary was ten months old at the time of 

adoption. The petitioner's husband, who is now deceased, evidently 

gave his consent to the adoption_ The beneficiary resided with the 

petitioner from 1936 until 1955. Although no written adoption 

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agreement was presented, the District Director was correct in his 

initial determination that an "infancy" adoption was proved in 

this case. See Matter of Ace, 12 L & N. Dec. 296 (B IA, 1967). 

Petitioner's counsel protested the proposed revocation on the 

ground that it was incorrect to apply Matter of Wu, supra, to the 

present case. Counsel's contention was entirely correct. As he 

pointed out, the Yiu decision was concerned with a 1949 Hong 

Kong adoption and was decided on the basis of Chinese customary 

law as it was applied in Hong Kong. Our opinion in Matter of Yiu, 

supra, expressly held that the provisions of the Civil Code of the 

Republic of China did not apply. The present case, on the other 

hand, involves a Chinese adoption that took place on the mainland 

of China in 1936. Consequently, the Civil Code of the Nationalist 

Republic will be controlling. We note that the portion of the Civil 

Code dealing with adoption, Book IV (Family), was promulgated on 

December 26, 1930 and came into force on May 5, 1931. 

As counsel indicated, the Civil Code of the Republic of China did 

not prohibit the adoption of females. Article 1072 specifically 

provided for the adoption of either males or females. See Matter of 

Chan, 11 I. & N, Dec. 219 (BIA, 1965). 

Ordinarily we would simply sustain the appeal and reinstate the 

approval of petitioner's petition. However, the Service has raised 

an additional issue which must be disposed of before the present 

appeal may be resolved. 

The issue is a crucial one with potential impact, not only upon 

all Chinese adoptions, but also upon adoption cases from many 

other countries. The Service would have us recede from a long line 

of decisions in which we recognized adoptions in China as valid for 

purposes of section 101(bX1)(E) of the Immigration and Nationality 

Act. The contention is that Chinese adoptions, even though valid 

under the laws of China, nevertheless do not constitute "adoptions" for immigration purposes because, it is argued, an acceptable adoption may be created only as a result of a "juridical act." In 

essence, the Service would have us recede from the long-standing 

rule that the validity of an adoption upon which an immigration 

status is grounded is governed by the law of the place where the 

adoption status was created, Matter of R—, 6 I. & N. Dec. 760 (BIA, 

1955). 

Historically, the courts have recognized Chinese adoptions as 

valid for purposes of the immigration laws. One court, in Ex Parte 

Fong Yin?, et al., 134 Fed. 938 (S.D.N.Y., 1905), held as follows: 

The evidence shows that the practice of adopting children in China is very 

common, that it takes place substantially without legal formalities, but that 

the rights and obligations of children adopted and recognized as such are 

similar to those of natural children. Under these circumstances I can see no 

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Interim Decision #2145 

difference between the legal status of adopted children and of natural 

children. 

This holding was specifically endorsed in Johnson v. Shue Hong, 

300 Fed. 89 (1 Cir., 1924). 

The general rule in favor of recognizing adopted children as 

children was changed by the Immigration Act of 1924. That 

statute ordered that adoptions occurring after January 1, 1924 

would no longer be recognized for immigration purposes. In 

Tillinghast v. Chin Mon, 25 F.2d 262 (C.A. 1, 1928), cert. dismissed 

278 U.S. 666 (1929), the court stated that the 1924 Act took into 

account the construction of the prior act found in Johnson v. Shue 

Hong, supra. Thus, from 1924 onward, adoptions were given no 

recognition for immigration purposes until the 1957 amendment to 

the Act of 1952 which created section 101(b)(1XE). The rule set 

forth in Ex Parts Fong Yim et al., supra, and endorsed in Johnson 

v. Shue Hong, supra, then, is back in operation by virtue of the 

1957 amendment to the 1952 Act. 

The Service's position ignores many judicial and administrative 

precedents recognizing Chinese adoptions as valid for immigration 

purposes. The Service bases its argument almost entirely on a 

definition of the word "adoption" appearing in Matter of Chan, 

supra, which equates adoption with a "juridical act." In that case 

two definitions of adoption were set forth. The first, taken from 

Bouvier's Law Dictionary (3d revision), is as follows: "Adoption is a 

juridical act creating between two persons certain relations, 

purely civil, of paternity and filiation." The second, taken from 2 

Corpus Juris Secun,du?n, 367, reads as follows: "Adoption, in legal 

contemplation, is the act by which parties thereto establish the 

relationship of parent and child between persons [not] so related...." 

It is well-settled that under the Chinese Civil Code an adoption 

did not require the permission or approval of a court or other 

governmental agency. The same was true of adoptions under the 

Ching Code. Hence, no "juridical act" was required under Chinese 

law. As regards the present case, Article 1079 of the Civil Code 

merely required that "Adoption must be effected in writing, unless 

the person to be adopted has been brought up as a ■ Child of the 

adopter since infancy." The word "infancy," as used in this connection, has been defined by the Supreme Court-of China to relate to 

a child who is under the age of seven years. 

This Board has published a number of precedent decisions 

concerning adoptions which took place under the Civil Code of the 

Republic of China. In no case was it found that a Chinese adoption 

was invalid because there was no juridical act of adoption. In the 

following cases we recognized the Chinese adoptions as valid for 

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Interim Decision #2145 

purposes of section 101(b)(1XE), despite the absence of any juridical 

act: Matter of Fong, 10 I. & N. Dec. 497 (BIA, 1964); Matter of Chin, 

12 I. & N. Dec. 240 (BIA, 1967); Matter of Jue, supra, and Matter of 

Chan, 12 I. & N. Dec. 513 (BIA, 1967). A child adopted according to 

the Civil Code was found to qualify as a "child" for purposes of the 

Act of December 28, 1945, in the following reported cases: In the 

Matter of W—M—S—and W—O—W—, 3 I. & N. Dec. 131 (BIA, 1948 

and A.(L, 1948) and In the Matter of .W—M--G—, 3 I. & N. Dec, 608 

(BIA, 1949). See also Matte of Yue, 12 I. &.N. Dec. 747 (BIA, 1968) 

for a case arising under the Ching Code. 

Inasmuch as the Service's objection rests upon the technical 

ground that one of the definitions of "adoption" contained in 

Matter of Chan, supra, seemingly requires a juridical act, we 

should examine that definition to ascertain- its derivation and 

proper legal effect. We note that Bouvier's Law Dictionary (3d 

revision) may hardly be classed as a contemporary source of law, 

being first written in 1838 and last revised in 1914. The definition 

of adoption equating adoption to a juridical act is not the primary 

definition of adoption set forth in Bouvier's Law Dictionary. The 

first definition listed is the following: "The act by which a person 

takes the child of another into his family and treats him as his 

own." The definition found in that work that equates adoption to a 

juridical act is credited to "6 Demolombe, § 1," a reference to a 

commentary on the Code Napoleon. Hence, the definition of 

adoption upon which the Service relies has no validity in connection with non-civil law countries such as China. 

In addition, Matter of Chan, 11 I. & N. Dec. 219 (BIA, 1965), in 

which the restrictive definition appears, was decided on other 

grounds. In Chan we held that no adoption had been established 

because the facts merely disclosed a loco parentis relationship, 

with no adoption intended. The statement that an adoption contemplated a juridical act was pure dictum not essential to the 

resolution of the case. 

Since Congress did not provide us with a definition of "adoption," we should apply the terrain its plain and ordinary meaning. 

Webster's New International Dictionary, 2d edition, defines adoption as "Voluntary acceptance of a child of other parents to be the 

same as one's own child." Absent a more particular formulation 

from Congress, we shall employ this definition. We note that it is 

in general accord with (1) the definition of adoption found in 

Corpus Juris Secundum, supra, and (2) the first definition of 

adoption found in Bouvier's Law Dictionary. 

We reject.the argument that an adoption must be accomplished 

by a juridical act before it can be recognized as valid under section 

101(b)(1XE) of the Act. We reaffirm our prior precedent decisions 

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Interim Decision #2145 

which recognized Chinese adoptions, even though created without 

benefit of a juridical act. We also reaffirm our long-standing rule 

that the validity of an adoption for immigration purposes is 

governed by the law of the place where the adoption occurred. 

In the present case a valid infancy adoption under Article 1079 

of the Civil Code was intitially established to the satisfaction of the 

District Director. The approval of the petition was subsequently 

revoked, but, as we have seen, for improper reasons. The beneficiary, then, qualifies as a "child" for purposes of section 

101(b)(1)(E). The approval of preference status should be reinstated. The appeal will be sustained and the following order will be 

entered. 

ORDER: It is hereby ordered that the District Director's 

revocation of the approval of the petition granting preference 

classification to the beneficiary be and the same is hereby set 

aside, and the approval of the beneficiary's preference classification be and the same is hereby reinstated as of the date of original 

approval. 

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