Interim Decision #1488 

MATTER Or CHAR 

In ViSEI, Petition Proceedings . 

A.--13924709 

Decided by Board chow -16, 1965 . 

Since acts of human kindness referable to an undertaking to rear and educate 

a helpless child do not alone prove an agreement to adopt nor is standing 

in boo parentis the equivalent of adoption, the mere 'fact that the petitioning grandfather may have stood in taco parentis to the beneficiary grandson, 

following the death of the latter's father in China when the benefielary was 

only 17 months of age, is insufficient 'to effect adoption in accordance with 

the applicable provisions of the Chinese Civil Code since in order to be reoognized as an adoption it is necessary that the adoptive parents have brought 

up the child intending to adopt it.. 

The case comes forward on appeal from the -order of the District 

Director, New .York District, dated March 17, 1965 for the reason 

that the beneficiary, an alleged adopted child, does not qualify under 

the definition of "child" within the provisions of section 101(b) (1) 

(B) of the Immigration and Nationality Act and that satisfactorY 

evidence has not been presented that.he was legally adopted. The 

notice of denial further sets forth that the evidence establishes the 

true son and his wife lived In the same household with his wife and 

other son from the time of their marriage until 1938 when the beneficiary, his grandson, was born; after the death of the beneficiary's 

father in 1939, the petitioner's daughter-in-law and grandson continued to live in the same household until the death of the petitioner's wife in 1942; thereafter his daughter-in-law, his grandson and 

his other son continued to live in the same household until this other 

son came to the United States in 1961 and the daughter-in-law And 

her son, the beneficiary, are presently living togethef in the same 

household. There is no evidence that the petitioner ever contemplated the adoption of his grandson either before his seventh birthday or at any time thereafter. 

The visa petition was filed by King Chin, a native born.citizen of 

the ;United States, 68 years old, seeking preference quota status on 

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Interim Decision *1480 

behalf of the beneficiary, a native and citizen of China, 27 years 

old, male. The beneficiary is alleged to be the adopted son of the 

petitioner. 

In support of the visa petition there has been submitted a statutory 

declaration executed December 14, 1964 at Hong Kong by Ng Choi 

Hang setting forth that she is the blood mother of the beneficiary 

who was born on. April 6, 1938 and that his father was Chin Bing 

Yu who died on September 5, 1939 when the beneficiary was only 17 

months of age. Her husband was the blood son of the petitioner. 

The beneficiary is, therefore, the grandson of the petitioner. After 

her marriage Ng Choi Hang resided with her husband in the ancestral home of her father-in-law, the petitioner, together with her 

mother-in-law, Dong Toy Kee, the petitioner's wife, who died in 

1942. Since the death of her husband, the affiant and her son have 

been continuously supported by the petitioner and since her hug-

-band's death, the beneficiary, from the time of his father's death 

until the death of his grandmother, resided with his grandmother 

who was his custodian and acted as his adoptive mother until the 

time of her death. From the time of her husband's death her son 

has been regarded as the adopted son of his paternal grandparents. 

There has also been submitted an affidavit by Gwon Bor Chin, 37 

years old, the blood son of the petitioner and the brother of Bing 

Yu Chin, the blood father of the beneficiary. The affiant states that 

lie is informed, believes and understands that the beneficiary is his 

adoptive brdther under the laws of the Republic of China. The date 

and basis of such information, belief and understanding is not set 

forth. The immigration record of the affiant is not included and it' 

is not known whether it is stated therein that the beneficiary was 

his brother. 

• A sworn statement was taken from the petitioner before an immigration officer on March 3, 1965. He testified he was married on CR 

9-12-20 to Dong Toy Kee and that they had two sons: Chin 

Bing, born OR 10-9-10 who died in 1941; and Chin Goon Bor, born 

CR 16-9-3, now in the United States, having been admitted in February 1961 as the son. of a citizen. The petitioner stated that his 

deceased son married Ng Toy Hong about CR 25th or 26th year and 

they had one son, Chin Ming Hang, the beneficiary. He testified 

that while his son Chin Bing You was alive, he lived together with 

his wife and son, Chin Ming Hang, and the petitioner's wife until 

she passed away in 1942, and his second son, Chin. Goon Bor. He 

learned about the birth of his grandson in CR 27 or 28 and he 

learned about the death of his older son about a week after the event. 

When asked to explain the circumstances under which his grandson 

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Interim Debision #1480 

was adopted by his wife, the petitioner stated there was no particular 

procedure in adopting his grandson as his son, it is understood that 

he is the petitioner's grandson and after his father's death he has 

been sending money to support him all of the time; it is different 

from- any case of adoption. When asked why it was necessary for 

him to adopt the grandson when his mother was still alive and living 

in the same household he stated that all that he wanted to do was to 

bring him to the United States so that he can take care of him since 

he has no father and he does not care whether you call him his 

adopted son or anything else. He stated there was no need to go 

_through any adoption proceeding since the benefieiary is his true 

blood grandson and he wanted to bring biro. to the United States. 

When asked whether his wife had ever written to him as to whether 

she would adopt the grandson legally or whether he had over -written 

his wife in China asking her to adopt his grandson legally he replied 

he did not understand the necessity of talking about those things 

because there is no doubt that the child is his grandson. The petitioner agreed with the statutory declaration executed by his daughter-in-law that his son probably died on September 5, 1939 as indicated by her and that, his wife died in 1942. The petitioner stated 

that since he last returned from .China in 1928 he has kept all 

receipts for remittances he-has sent his family in China and the 

attorney indicated that this evidence is in the files of the American 

Consulate at Hong Song. . 

The petitioner has filed an affidavit, which is in essence a brief, as 

well as a separate brief filed by counsel. The affidavit sets forth the 

conception of Chinese family life in the rural areas of China and 

claims that a de facto adoption within the concept of Article 1079 of 

the Chinese Civil Coder exists in the present case. In his brief counsel cites a number of cases to show that the trend of administrative 

and judicial decisions with regard to "children" is a, liberal one and 

that the legislation is remedial in nature, enacted to preserve and 

keep together bona fide family relationships, realizing that to do 

otherwise would cause undue hardship. He urges that the word 

"adopt" be given its ordinary simple dictionary definition. 

Article 1079 of the Chinese Civil Code specifies that an adoption 

must be effected. in writing, unless the person to be adopted. has been 

brought up as a child of the adopter since infancy. Also peitinent 

are the provisions of Article 1072 which provide that where a person 

adopts a child. of another as his own child, the adopter is called the 

adoptive father or adoptive mother and the person adopted is called 

adopted son or adopted daughter; Article 1074 which provides that 

where a married person adopts a child.; he must do so jointly with 

221 
Interim Decision #1480 

his spouse; and Article 1078 which provides that an adopted child 

assumes the surname of the adopter. In 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 feet of bringing up the 

child is not sufficient.' 

The term "child" is defined in section 101(b) (1) to mean a legitimate child, a stepchild, a legitimated child, an illegitimate child in 

relation to its mother, an adopted child, and an eligible orphan. The 

terms are all defined and connote a legal status or relationship and 

are words of art as distinguished from words in ordinary usage. 

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- 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 parentis the equivalent of adoption. 4 

The petitioner has the burden of establishing the existence of the 

relationship upon which is predicated the benefit he seeks under the 

immigration laws on behalf of the beneficiary. The beneficiary in 

the instant case is the petitioner's grandson, whose father is the petitioner's deceased son. The beneficiary's mother continued to reside 

in the same household together with another son until this other son 

came to the United -States in 1961 and the beneficiary and his mother 

are presently living together in the same household. The petitioner 

in-his sworn statement of March 3, 1965 did not state that his grandson had been adopted by his wife, the beneficiary's grandmother or 

that he ever consented to such adoption or that there was ever an 

adoption procedure. He stated there was no need to go through an 

adoption proceeding because the beneficiary is his true blood grandson and that after his father's death he had been sending money to 

support him all the time and- it is different from any case of 

adoption. 

As far as the evidence establishes, there was never an actual intent 

to adopt the child but the grandfather merely contributed to the support of the beneficiary who resided with and at all times was within 

the custody of his own mother. The evidence fails to establish an 

intent to adopt as distinguished from merely supporting the child. 

11f. H. Van Der Valk, An Ontiine of Modern Wanda, Faintly Data (1939), 

185 citing Dec. 1933-4828; Thom 1107; Satt-fa-Ifiung-yao 

. 'Bouvier's IMO Dictionary (3rd Revision). 

B2 Corpus 'aria Elecandurn 367. 

'Garcia v. Beene et al., 242 S.W. 2d 230 (CA. Texas, 1951). 

222 , 
Interim Decision. #1480 

It has not been esta alishedthat the requirements of the Chinese 

Civil Code relating to adoption have been complied with by the production of evidence relating thereto. When the term "child" was 

defined as meaning an adopted child, it envisioned a legal status or 

concept of adoption which has not been established in this case. The 

mere fact that the petitioner may stand in loco parentis to the beneficiary is not the equivalent of adoption. We have examined the 

case cited by counsel relating to equitable adoption but do not find it 

relevanto Upon consideration of the entire record, we conclude that 

the petitioner has not borne the burden of establishing that the beneficiary is his adopted child and, therefore, the beneficiary is not eligible for preference quota status as the adopted son of the petitioner. 

• ORDER: It is ordered that the appeal be and the same is hereby 

,dismissed. 

`Davis v. Celebrezze, 239 F. Supp. 608. 

423