Interim Decision #2151 

MATTER OF CHIN 

In Visa Petition Proceedings 

A-19425410 

Decided by Board May 25, 1972 

As many Chinese adoption cases are not grounded upon a formal adoption 

decree, the validity of such claimed adoptions must be determined bye careful 

weighing of the evidentiary materiaL Certified copies of affidavits, photographs, evidence of support, letters, and other documents presented bearing 

on validity should be made a part of the record. Photographs should be 

positively identified and verified under oath. Affidavits submitted should state 

(1) the nature of the affiant's relationship, if any, to the parties; (2) the basis of 

afflant'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 an 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. In addition, 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. Affidavits 

executed by counsel would have little, if any, probative value. 

ON BEHALF OF PETITIONER: 

Benjamin Gim, Esquire 

21'7 Park Row 

New York, New York 10038 

(Brief filed) 

ON BEHALF OF SERVICE: 

R. A. Vielhaber 

David L. Milhollan 

Appellate Trial Attorneys 

(grief tiled) 

The United States citizen petitioner applied for preference 

status for the beneficiary as his adopted married son under section 

203(a)(4) of the Immigration and Nationality Act. The District 

Director, evidently finding that an adoption had been established, 

approved the petition on October 14, 1970. However, his initial 

approval was revoked on June 21, 1971 on the basis of this Board's 

decision in Matter of Yiu, 13 L & N. Dec. 624 (BIA, 1970). The 

petitioner appeals from the revocation. The appeal will be sustained, but the case will be remanded. 

The beneficiary is a married male who was born in China on 

January 9, 1928. He was purportedly adopted on March 15, 1931. 

Counsel urges that the validity of the adoption be gauged by the 

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Interim Decision #2151 

provisions of the Civil Code of the Republic of China. We do not 

accept this point of view, inasmuch as the provisions of the Civil 

Code dealing with adoption were not put into effect until May 5, 

1931. The validity of the adoption in the present case, therefore, 

must be determined with reference to the adoption law in effect 

prior to the Civil Code of Nationalist China. The relevant provisions were found in the Ching Code, which was the subject of our 

decision in Matter of Yiu, supra. 

At the time he made his decision to revoke, the District Director 

was not incorrect in citing the Yiu case as authority. However, 

since we rendered our decision in the Yiu case, we have had 

occasion to reconsider the principles enunciated therein. As a 

result, in Matter of Ng, Interim Decision No. 2147 (BIA, April 28, 

1972), we receded from our ruling in Yiu. That case, therefore, no 

longer serves as a bar to the approval of the present petition. 

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." 

Shortly thereafter we receded from two precedent decisions that 

had served as legal obstacles to the acceptance of many Chinese 

adoptions. In Matter of Ng, supra, we receded from our decision in 

Matter of Yiu, supra, and returned to our earlier position as 

expressed in Matter of Yue, 12 I. &. N. Dec. 747 (BIA, 1968). In the 

Yue case we had recognized the validity of both (1) the adoption of 

females and (2) the adoption of males even though not related by 

birth, not of the same clan and not with the same surname. In 

Matter of Yee, Interim Decision No. 2146 (BIA, April 28, 1972), we 

receded from our earlier decision in a case involving a Chinese 

with the same family name, Matter of Yee, 13 I. & N. Dec. 620 (BIA, 

1970). The first Yee case had ruled out the possibility of recognizing an adoption occurring in the People's Republic of China as 

valid for immigration purposes. 

Even though the legal impediments to the recognition of 

Chinese adoptions have been removed, each petition based upon 

an adoptive relationship still must be considered from a 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 the family relationship, 8 CFR 

204.2(0(4 

In any case where an adoption is claimed to have taken place it 

goes without saying that the identity of the parties must be 

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Interim Decision #2151 

established. The adoption paper which has been submitted refers 

to the adoptive father as Mr. Chin Leung Suey of Ou Bing Village, 

Konghoi. The petitioner's name is not Chin Leung Suey, but Kee 

Yick Chin. An affidavit of the petitioner's wife executed on July 10, 

1970, indicates that, at the time of the claimed adoption of the 

beneficiary, the petitioner did not reside in China at all, but was 

residing permanently in the United States. The name of the 

petitioner's wife, who, in her affidavit of July 10, 1970, stated that 

she had adopted the beneficiary with the consent of the petitioner, 

likewise is not mentioned in the adoption paper. The case will have 

to be remanded in order to enable the District Director to verify 

that the petitioner and the adoptive father are indeed the same 

person. 

Inasmuch as many Chinese adoption cases are not grounded 

upon a formal decree of adoption, it is necessary to determine the 

validity of the claimed adption by means of a careful weighing of 

the evidentiary material submitted. Certified copies of affidavits, 

photographs, evidence of support, letters and other documents 

bearing upon the issue of the validity of the adoption exhibited by 

the petitioner should be made part of the record. Affidavits 

submitted should (1) state the nature of the affiant's relationship, 

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

knowledge, and (3) contain a statement of the facts the affiant 

knows regarding the adoption, rather than mere conelnsory statements as to the existence of an adoption. Information contained 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 such evidence. In addition, there is an 

exception to the hearsay rule on behalf of statements as to 

pedigree and family history made by (1) relatives or (2) members of 

the same community. Along the same line, affidavits executed by 

counsel would have little, if any, probative value. Photographs 

should be positively identified and verified under oath. 

The affidavits and photographs contained in the file before us 

appear to be unobjectionable. We shall remand this matter to the 

District Director, however, so that petitioner will be afforded an 

opportunity to explain the discrepancies noted above and to 

establish that there was, in fact, a valid adoption of the beneficiary, and so that a new order can then be entered by the District 

Director. 

ORDER: The case is remanded to the District Director for 

further proceedings consistent with the foregoing decision. 

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