Interim Decision #2098 

MATTER OF LEE 

In Visa Petition Proceedings 

A-17523878 

Decided by Board September 30, 1971 

Petitioner's alleged adoption of beneficiary in China in 1943 when latter was 

8 years of age has not been established for immigration purposes since 

there was no written adoption agreement nor was beneficiary brought up 

as a child of the adopter since infancy (under 7 years of age) in accordance with Article 1079 of the Chinese Civil Code. Further, even if adoption occurred as alleged, beneficiary's subsequent return in 1946 to Indonesia where he lived with his natural mother from 1946 to 1956 raises the 

possibility of mutual termination of the adoptive relationship under Article 1080 of the Chinese Civil Code, and petitioner has failed to offer sufficient evidence to explain away the doubt raised as to the continuing effect 

of the "adoption". 

ON BEHALF OF PETITIONER: Sanford A. Peyser, Esquire 

401 Broadway 

New York, New York 10013 

Petitioner, a permanent resident alien, applied for preference 

status for the beneficiary as her adopted unmarried son under 

section 203 (a) (2) of the Immigration and Nationality Act. The 

District Director denied the application in an order dated June 

19, 1970, and the petitioner appeals from that denial. The appeal 

will be dismissed. 

The beneficiary is an unmarried male, age 38, who was born in 

China in 1933. His natural father is Lee Ming Sam. Lee Ming 

Sam married the beneficiary's natural mother, Lam Tjon Ho, in 

1928. There were three other children issue of their marriage 

who were born in 1935, 1940 and 1953. 

In 1933, the beneficiary's father, Lee Ming Sam, moved his 

family to what is now Indonesia. In 1941, Lee Ming Sam, accompanied by the beneficiary who was then eight years old, returned 

to his native village in China to visit his mother. Shortly thereafter the Japanese invaded the Dutch East Indies and Lee Ming 

Sam, losing all communication with his wife, Lam Tjon Ho, and 

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his other two children, assumed that they had perished. The Japanese soon therafter occupied the village in China where Lee 

Ming Sam was staying with the beneficiary. 

In 1943, Lee Ming Sam, out of concern for the upbringing of 

the beneficiary, and upon the advice of his mother, purportedly 

married Sao Kin Louie, the petitioner in this case. Sao Kin Louie 

then went through a "ceremony," dinner party and public announcement to Lee Ming Sam's clansmen, which allegedly constituted an adoption of the beneficiary. Shortly thereafter communication with Indonesia was reestablished, and it was learned that 

Lam Tjon Ho and the other children were alive. The petitioner 

claims that Lam Tjon Ho wrote to her in 1943 and assented to 

Lee Ming Sam's marriage to the petitioner, and also to the "adoption" of the beneficiary. No independent evidence was presented 

to prove this allegation. All that the file contains in this regard 

are letters from Lam Tjon Ho to the petitioner, written in 1958, 

1959 and 1960, containing Lam Tjon Ho's consent to the "adoption" which took place over fifteen years earlier in China. 

Lee Ming Sam took the beneficiary back to Indonesia with him 

in 1946, leaving the petitioner in China. The beneficiary lived 

with his father and natural mother in Indonesia from 1946 until 

1956. He then went to Taiwan. The petitioner left China and 

went to Hong Kong in 1954, where she stayed until 1967, when 

she was admitted to the United States as an immigrant. The beneficiary joined the petitioner in Hong Kong in 1959, and stayed 

with her until 1967. The petitioner apparently supported the beneficiary while he was attending school in Taiwan, "with funds received from my husband in Indonesia." 

Section 203 (a) (2) provides for visa preference for qualified 

immigrants who are the unmarried sons or daughters of aliens 

admitted for permanent residence. There is no definition of "son" 

or "daughter" in the Immigration and Nationality Act, but 

"child" is defined in section 101(b) (1) (E) to include a child 

adopted while under the age of fourteen years if the child has 

thereafter been in the legal custody of, and has resided with, the 

adopting parent or parents. We have previously held that a child 

adopted in compliance with section 101 (b) (1) (E) of the Act 

qualified as a "son" or "daughter" for purposes of receiving preference status, Matter of Ate, 12 I. & N. Dec. 296 (BIA, 1967); 

Matter of Yue, 12 I. & N. Dec. 747 (BIA, 1968). 

The issue in this case is whether there was a valid adoption 

which also meets the requirements set forth in section 

101(b) (1) (E) of the Immigration and Nationality Act. To deter767 
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mine the validity of the adoption, we must look to the applicable 

adoption law. Inasmuch as we are concerned with an adoption 

which was supposed to have been accomplished in China in 1943, 

the provisions of the Civil Code of the Republic of China are controlling. 

Article 1073 of the Civil Code required that the adopter be at 

least twenty years older than the person to be adopted. In the 

present case the petitioner, born in 1926, is only five years older 

than the beneficiary. In a prior precedent decision, this Board 

recognized an adoption as valid for immigration purposes where 

there are only a sixteen-year age difference, Matter of Chan, 12 I. 

& N. Dec. 513 (BIA, 1967). We held that such an adoption was 

not automatically void, but only voidable. We need not decide 

whether we will extend the Ckan rule to the present case, because 

there are even more fundamental defects in the claimed adoption. 

Article 1079 required that the adoption be in writing, unless 

the person adopted had been brought up as a child of the adopter 

since infancy. Infancy has been construed by the Supreme Court 

of China to refer to that period of time during which a child is 

under the age of seven years, Matter of Lau, 10 I. & N. Dec. 597 

(BIA, 1964). In the present case the beneficiary was eight years 

old when the purported adoption took place. This could not have 

been an infancy adoption, and there was no written adoption 

agreement. 

Article 1080 of the Code provided for the mutual termination 

of the adoptive relationship. The fact that the beneficiary went 

back to Indonesia in 1946 to live with his natural mother until 

1956 raises the possibility that the relationship may have been 

terminated. The petitioner has failed to offer sufficient evidence 

:o explain away the doubt raised as to the continuing effect of the 

`adoption." 

The District Director was correct in holding that the petitioner 

ias not borne the burden of establishing the beneficiary is an 

Ldopted child as defined in section 101 (b) (1) (E) of the Immigraion and Nationality Act. Since he is not an adopted child for imnigration purposes, the beneficiary is not eligible for preference 

tatus under section 203 (a) (2) of the Act. The appeal will be dismissed. 

ORDER: The appeal is dismissed. 

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