MATTER OF K—B W— 

In DEPORTATION Proceedings 

A-11967768 

Decided by Board April 11, 1962 

Presumption of lawful admissicin for permanent residence- 8 CFR 101.1(j)(1)— 

Adoptive child. 

The alleged adoptive child of a United States citizen who is not within definition contained in section 101(b) (1) (E) of the 1952 Act, because not legally 

adopted under the law of his residence (China), or of his alleged adoptive 

father's residence (California), cannot qualify for presumption of lawful 

admission for permanent residence under 8 CFR 101.1(j) (1). 

CHARGES: 

Order : Act of 1952—Section 241(a) (2) [8 U.S.C., 1251 (a) (2) ]—Entered 

without inspection. 

Lodged: Act of 1932—Sectiou 241 (a ) (1) [8 U.S.C. 1251(a (1) ]—Escludable at time of entry, no immigrant visa. 

BEFORE THE BOARD 

DISCUSSION: The case comes forward on appeal from the order 

of the special inquiry officer dated December 20, 1961, ordering respondent deported on the charges set forth above. 

The order of the special inquiry officer contains a full discussion 

of the case. The record relates to a native and citizen of China 

who was born on May 3, 1935, under the name of W—, K—B—, 

the natural son of W—, Y—S— and D—S—, natives and citizens 

of China who have never resided in the United States. About the 

year 1944, when the respondent was 9 years of age., he was given by 

his parents to the family of W—, T—S—, a United States citizen, 

who however was not at that time in China. He resided with W—'s 

wife, Y—S—, and an aunt. The wife did not tell her husband about 

the adoption until after the war, in about 1945. The respondent's 

immigration mother has testified both that the respondent began to 

reside with her approximately in 1943 and when he was 9 years old. 

The respondent has testified that he was given to the W— family 

when he was ahmit 9, during the war. The immigration father 

has testified that although he did not know exactly, his son was 

about 11 or 12 when he came into his family. In connection with 

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an affidavit executed for the purpose of identifying the respondent 

as a citizen of the United States and to facilitate ''his travel to the 

United States as a eitizeri, the immigration father made a sworn 

statement on May 20, 1047, before a notary public that the respondent was the issue of his marriage to Y—M—Q-- or Y S , was 

born on CR 23-11-29 (January 4, 1935), and in connection with 

testimony he gave at the time of the respondent's application for 

admission as fi citizen on September 8, 1947, he named the respondent as his son, horn CR 23-11-29 (January 4, 1935), and replied in 

the negative to the specific question concerning whether he had 

ever adopted a son or a daughter. 

Respondent has admitted through counsel that he is not a citizen 

or national of the United States; that he is a native and citizen 

of China; that he last entered the United States at Los Angeles, 

California, on or about February 2; 1957; and that he was then 

admitted upon his false claim to United States citizenship upon 

presentation of a United States passport. 

The respondent was first admitted to the United States on September 8, 1947, at the port of San Francisco, California, as a United 

States citizen under the provisions of Public Law 271 (Act of 

December 28. 1945), accompanied by his immigration mother, 

and his immigration brother, W, Y—T—. Consul contends that proceedings should be terminated, arguing that the respondent is comprehended within the provisions of 8 CFR 101.1 

(j) (1). This regulation provides that for a presumption of lawful 

admission for permanent residence in the case of : 

An alien for whom there exists a record of admission prior to September 11, 

1957, as a United States citizen who establishes that at the time of such admission he was the child of a United States citizen parent ; he was erroneously 

issued a United States passport or included in the United States passport of 

his citizen parent accompanying him or to whom he was destined; no fraud 

or misrepresentation was practiced by him in the issuance of the passport or 

golfing min:LL5:,sion ; he was otherwise udrui.osible at the time of entry except for failure to meet visa or passport requirements; and he has maintained 

a residence in the United States since the date of admission. For the purposes of the foregoing, the terms "child" and "parent" shall be defined as in 

section 101(b) of the Immigration and Nationality Act, as amended. 

In order to qualify as a child the respondent must meet the definition set forth in section 101(b) (1) (E) of the Act, as amended, which 

provide ° that the child shall have been 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. Conceding that the respondent otherwise qualifies, 1the 

question remains to be decided whether the respondent was legally 

adopted pursuant to the prevailing law in China. Article 1079 of the 

1 if-otter 9 176. 

011 
Chinese Civil Code promulgated May 28, 1929, states that adoption 

shall be effected in writing, unless the person to be adopted has 

been brought up as a child of the adopting parents since infancy. 

The term "infancy" in this article has been construed to mean a child 

not more than seven years of age. 2There is no evidence to establish 

a valid adoption under the laws of California where the immigration 

father resided. 

Inasmuch as a valid adoption has not been established, the record 

fails to establish that the respondent was a child of a United States 

citizen at the time of his original admission in 1947 or at any time 

thereafter and he cannot qualify under the provisions of 8 CFR 101.1 

(j) (1).3Nor is respondent eligible for a -waiver of documents in 

connection with his last entry on February 3, 1957, since ho was 

never lawfully admitted for permanent residence. We agree with the 

special inquiry officer that the charge in the order to show cause 

and the lodged obsrgA are both sustained. Respondent declined to 

apply for any discretionary relief. The appeal will be dismissed. 

ORDER: It is orde,-ed that the appeal be and the same is hereby 

dismissed. 

2Matter of C—F—L, 8-151, 153, referring to a memorandum supplied by the 

Far Eastern Law Division of the Library of Congress on the formality of adoption under the law of the Republic of China in which the age limitation of not 

inure limn 7 years was promulgated in a Judicial Yuan Advisor,Opinion, 7842, 

No. Yuan 2332. The case of Matter of W-11-0—, 3---609, in which the term 

"infancy?" was defined as early childhood or babyhood, concerned a child who 

was adopted when approximately 2 to 4 years old. 

3We find it unnecessary to reach the question of whether a person is "erroneously" admitted as a United States citizen where the true facts are not 

revealed. 

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