MATTER OF D—W—MIn VISA PETITION Proceedings 

A–T134526 

Decided by Board April 4, 190 

Adopted child—Custody and residence with one adoptive parent—Effect of 

divorce. 

Where the custody and residence requirements of section 101(b) (1) (E) of 

1052 Act are satisfied primarily by residence with adoptive mother, the 

divorce of adoptive parents is not disqualifying in view of evidence that 

beneficiary (with adoptive mother) has continued to reside with petitioner's 

family in Korea, has continued to be regarded as his adopted son, has been 

supported by petitioner, and divorced wife has signified her consent and 

approval for beneficiary to join his adoptive father in the United States. 

BEFORE THE BOARD 

DISCUSSION: The case comes forward pursuant to certification 

of the order of the District Director, San Antonio District, dated 

February 9, 1962, approving the visa petition for nonquota status 

on behalf of the beneficiary. 

The petitioner, a native of Korea, a naturalized citizen of the 

United States, 58 years old, male, seeks nonquota status on behalf 

of the beneficiary, a native and citizen of Korea, born on January 19, 

1943, as the adopted child of the petitioner. 

As evidence of the adoption there has been submitted a copy of the 

family register and a copy of an adoption paper indicating that the 

beneficiary's name was entered in the family register of the petitioner 

on August 1, 1949, as the adopted son of C—W-- and is listed as 

the grandson of the head of the family, the petitioner's father, 

K—W—M—. In a sworn statement to an immigration officer on 

Novemhex 98, 1961, the petitioner identified the beneficiary as his 

adopted son. He explained that in Korea there is a custom that the 

elder son becomes the head of the family when the father dies; that 

when the elder son is married but no male child is born, then the 

second oldest child gives his first-born male child to the older son 

in order that the head of the family may be retained in proper order; 

that he was married but had no children and that C I—M—, his 

brother and the natural father of the beneficiary, gave his child to 

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the petitioner and his wife in 1945 and the child has resided with 

them since 1945 He was placed in the family register as his adopted 

son on August 1, 1949. He stated that the beneficiary resided with 

him and his wife in Korea from 1945 until November 1948 when he 

entered the United States, that the beneficiary resided with them for 

about four years including the summer of 1955 when the petitioner 

returned to Korea. Evidence has been presented that the petitioner 

divorced his first wife on November 30, 1956, by decree of the District Court, Tarrant County, Texas, but the divorce decree makes no 

mention of the adopted child. The petitioner states that the beneficiary is known as his son in Korea, that in addition to income from 

their family he has sent him money, exhibiting receipts. The adoptive mother, in a statement executed May 2, 1961, before a county 

magistrate in Korea certifies that she agrees and consents that the 

beneficiary should join his father in the United States; that the 

child was adopted by the petitioner and his wife when 5 years old 

and that they have lived together for 12 years. There has also been 

submitted a statement signed by one L—G—J—, otherwise unidentified, dated August 18, 1961, to the effect that the benficiary is the 

adopted son of the petitioner, and has resided with him from 

August 1945 to November 1948 and that the petitioner is the legal 

custodian of the beneficiary. 

In order to be eligible for nonquota status the beneficiary must 

qualify as an adopted child under the immigration laws as provided 

in section 101(b) (1) (E) of the Immigration and Nationality Act, as 

amended. This section defines an adopted child as a child adopted 

while under the age of 14 years if the child has thereafter been in 

the legal custody of, and has resided with, the adopting parent or 

parents for at least two years. 

In the instant case the beneficiary was given to the petitioner 

and his first wife in 1945. He appears not to have been formally 

adopted until his name was placed in the family register on August 1, 

1949. • Thereafter, he continued to reside with the adoptive mother 

except for the summer months of 1955 when he resided with both 

parents. Since the adoptive father's divorce in November 1956, petitioner has been staying with his family with whom his divorced wife 

also continues to reside. No question has been raised as to the legality 

of the adoption or of the relationship between the husband and wife 

or between either of them and the adopted son. 

It is believed that the case falls within the principle enunciated 

in the holding of Matter of Y—K—TV—, 9-176 (Atty. Gen., 

Feb. 28, 1961), in which it was held that the two -year legal custody 

and residence requirement imposed upon an adopted child under the 

definition of adopted child as set forth in section 101(b) (1) (E) of 

the Immigration and Nationality Act, as amended by section 2 of the 

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Act of September 11, 19.7. , is satisfied when custody and residence 

have been with only one of the adoptive parents rather than both. 

In so holding, and'reversing a prior ruling to the contrary, the Attorney General recognized the remedial purpose of preserving rather 

than interrupting bona fide family relationships as exemplified in 

the legislative history seeking to prevent a separation of bona fide 

family units, and pointed out that safeguards against abuses might 

better be established by looking at the surrounding circumstances of 

the adoption and making a determination on the facts that, assuming 

the statutory qualification is met, the legislative purpose would be 

served in a particular case.' 

There is no doubt that had there not been any divorce the beneficiary would qualify as an adopted child under the holding in Matter of 

Y—K—W---, supra. It is not believed that the divorce of the adoptive parents on November 80, 1556, requires any different result in 

view of the evidence establishing the continuance of the bona fide 

family relationship of adoptive father and adopted child, as evidenced by the fact that the beneficiary has continued to reside with 

the petitioner's family in Korea, has continued to be regarded as 

his adopted son, has been supported by the petitioner and there is 

no objection from the divorced wife who has signified her consent 

and approval that the beneficiary join his father in this country. 

ORDER: It is ordered that the order of the District Director 

dated February 9, 1962, approving nonquota status on behalf of the 

beneficiary as the adopted child of the petitioner be and tho same 

is hereby affirmed. 

The residence requirement of section 101(b) (1) (E), as amended, does not 

exclude computation of residence occurring prior to the formal adoption 

decree. Mailer of M—, 8-118. 

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