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Interim Decisions- 4k1433` 

MATTER' OF imat 

In Visa Petition Proceedings 

A-12990543 , 

Decided by Bicard October .19, and December Si, 1964 

Petition of an adult naturalized United States citizen, who was adopted in 

China during Infancy, is approved to accord her natural mother preference' 

quota classification under section 203(a) (2), Immigration and Nationality 

Act. as amended, notwithstanding the proviso to section 101(b) (1) (E) of the 

Act, since petitioner—who entered this country not as an adopted child but 

as the nonquota wife of a C. S. citizen and whose adoptive father is dead 

and her adoptive mother, not having been heard from in many years, is 

presumed dead—has received no ironligration benefit through her adoptive 

status and as qt matter of either law or fact is in no position to clef)/ such 

benefit through that status. 

BEFORE THE BOARD 

Petitioner, a native of China and a naturalized citizen of this 

country, seeks second preference quota status for her natural mother. 

The District Director has revoked the visa petition which petitioner 

filed for that purpose. 

A short time after petitioner's birth a family that lived near her 

village in China adopted her because her mother was ill. The 

Service approved the petition with knowledge of petitioner's adoptive 

status. An immigration officer, who interviewed petitioner preliminarily to the revocation of the petition, said that the approval 

was erroneous. 

The District Director's decision rests upon his conclusion that the 

Immigration end Nationality Act provides that the natural parents 

of an adopted child shall (by virtue of such parentage) be accorded 

no rights, privileges, or status under the Act. We tbinlr his statement inaccurately reflects the statutory provision. Our reasoning 

agrees substantially with petitioner's brief in support of her appeal. 

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Interim Decision #1433 

The pertinent portion of the statute reads : 

As used in titles I and II—The term "child" means an unmarried person ender twenty-one years of age who is- 

* • • • • • 

(E) 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 for at least two years: Provided, That no 

natural parent of any such adopted child shall thereafter, by virtue of such 

parentage, be accorded any right, privilege, or status under this Act 

• • • • • • • • 

Manifestly, the inclusion of an adopted child in the definition of the 

term "child" seeks to provide some immigration benefit for the child 

through\his relationship to his adoptive parent or parents. The 

immediate purpose is to enable an adopted child, who meets the section's conditions and who otherwise could not immigrate because of 

quota restrictions, to accompany his adoptive parent or parents to 

this country, or to join such parent or parents here. Reading the 

section as a whole, instead of considering only the language of subparagraph (E), makes clear the section's intended scope. 

In referring to "such adopted child" the proviso obviously means 

an adopted.child who under the terms of the section is eligible for—

or has obtained—an immigration benefit. The effect which the District Director gives to the proviso overlooks the significance of the 

word. "such." If, as his decision holds, the statute precludes the 

natural parent of any adopted child from obtaining by reason of 

blood relationship to that child any right, privilege, or status under 

the Aot, the proviso should omit the word "such" and read: 

Provided,, That no natural parent of any adopted child shall thereafter, by 

virtue of each parentage, be steeorded any right, privilege, or etetnR under Me 

Act. 

Thus, both the section as a whole and the proviso refer to an adopted 

child in relation to eligibilty through adoption for some immigration benefit, rather than either adopted children in general, • or, 

specifically, children who have been adopted while under the age of 

14, have thereafter been in the legal custody of, and resided with, 

the adoptive parent or parents for two years or more, but who have 

received no immigration benefit thereby. 

Petitioner came to this country not as an adopted child but as the 

wife of a United. States citizen. She is now 48 years old. Her 

counsel says her adoptive father died in China about 1951 and her 

' Section 101(b) (1) (E), Immigration and Nationality Act, added by Act of 

September ii, 195T, 71 stat. 689, 8 D.S.O. 1101(5) (1) (E). 

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Interim .Decision #1483 

adoptive mother has not been heard. from in many years and is 

presumed dead. 

In Matter of B —, cited by petitioner's counsel, we held that an 

adopted Child who as a matter of law could not obtain through the 

adoption any immigration right, privilege, or status could. confer 

second. preference quota status upon _her natural parents' Here, 

petitioner did not obtain any immigration right, privilege, or status 

through her adoption and as a matter of fact could not now obtain 

any immigration benefit from that status. We see no appreciable 

difference in the two situations. 

We consider the Proviso in subparagraph (E) of the definition 

of the term "child" for purposes of titles I and II of the Act is 

inapplicable when an adopted child has received no immigration 

banpfit from his adoptive status and as a matter of either law or 

fact is in no position to claim such benefit. Therefore, we hold that 

petitioner's adoption is immaterial here and does not affect 'beneficiary's eligibility for classification as a second preference quota immigrant based upon her alleged blood relationship to petitioner.! We 

shall sustain the appeal 

ORDER: It is ordered that the District Director's decision revoking the petition to classify status of alien relative for issuance 

of immigration visa filed by petitioner for her natural mother_be 

reversed and that the petition stand as approved. 

=FORE THE BOARD 

The Service moves for reconsideration of our order of October 19, 

1904, which reversed the District Director's decision revoking approval of the visa petition filed in behalf of petitioner's mother.' 

Counsel for the Service contends section 101(b) (1) (E) of the Immigration. and Nationality Act bars approval of the petition. The 

District Director took the same ,position in his decision. We adhere 

to our previous ruling. 

The Service's counsel's concern .with the statutory prohibition has 

led him into the same error which the District Director committed—

interpreting the statute mechanically and unrealistically. What we 

said in our previous order about the scope of section 101(b) (1) (E)' 

applies with equal force to this motion. That statutory provision 

simply has no applicability here. 

'9 L & N. Dec. 46. 

'We note, moreover, that this record ialls.to establish that petitioner was 

legally adopted under Chinese law. 

'The motion seeks- also reopening of the proceedings for the presentation of 

farther evidence. We shall consider this aspect later. 

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Interim Decision #1433 

We believe the following hypothetical situations point up that 

inapplicability. In each we assume the factual situation here, as set 

forth in our previous order, except that we vary the' facts with 

respect to the adoption. We also assunie ,that the adoption in each 

case is valid under Chinese law and that the adoptive parents are 

deceased. 

Case A. Petitioner was adopted when over the age of 14 years.' 

Case B. Petitioner was adopted when under the age of 14 years but following the adoption resided with them for less than two years. 

Case C. Petitioner, as here, was adopted when under the age of 14 years 

and following the adoption was in the legal onatody a the adopting parents, 

and resided with them for two years or more. 

Apparently, the Service would approve petitions for petitioner's 

natural mother in Cases A and B but deny such a petition in Case C. 

In the circumstances we have assumed, however, we discern no special 

magic in the fact that the situation in Case 0 happens to fit the 

language which immediately precedes the proviso in section 

101(b) (1) (B). That language was not designed for the situations 

we envisage. It limits the situations in which an adopted child may 

benefit under the immigration laws through, its relationship to its 

adoptive parents. Congress particularized the adopted child who 

might so benefit in order to forestall use of the provision simply as a 

means of evading other provisions of the law. Thus, the language 

which precedes the proviso loses its force when considered out of the 

context of the adoptive relationship In our situations, that language has never been applied—and could not be applied—to accord 

any status under the immigration laws. Therefore, the language 

should have no more significance in one of the situations than in the 

others. 

In the proviso, Congress particularized the natural parent in the 

same manner. The proviso does not preclude a petition by any 

adopted. person for a natural parent. It precludes such a petition 

only if the petitioner has obtained a benefit under the immigration 

laws, or may obtain some benefit under those laws, by reason of his 

adopted status. Such person must, of course, qualify under the 

language preceding the proviso in order to be eligible for the benefit 

We. consider, however, the language of the proviso also loses its 

force where the adopted person, even though mechanically qualifying undert the definition, has never used, and never could use, his 

qualifications for immigration purposes. Thus, looking at the statutory provision as a whole, petitioner's adoption under circumstances 

Essentially, this was the situation in Matter of B—, 9 1. & N. Dee. 46. 

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Interim Decision #1433 

which meet the statutory requirements in the definition of an adopted 

child is immaterial for the purposes here considered. 

In addition to applying section 101(b) (1) (B), erroneously, the 

Service's motion misconstrues the effect of our decision.' -We -believe 

the Service's difficulty arises primarily -from misstatement of the 

issue. The motion states the issue to be whether' a child, whO in all 

respects comes within the definition of an adopted child in the immigration and Nationality Act, can have a visa petition approved for 

her natural pare& on the ground that the child had not gaineda 

benefit tinder the immigration laws by reason of the adoption. As 

we have seen, petitioner "4:100a not "in all respects" come within the 

definition of an adopted child in the Immigration and Nationality 

Act. Actually she does not come within' itat all. 

Assuming that petitioner was legally adopted, the circumstances of 

her adoption merely coincide mechanically with the conditions imposed by the definition. Moreover, the criterion heh is not that the 

adopted person has not at the time of petitioning already obtained 

a benefit under the immigration laws. Our decision contemplates 

that petitioner not only has not gained a benefit under the immigration laws through her adoption but could not 'now or ever obtain 

such a benefit. Both conditions must be present. 

We believe the foregoing statement disposes of the .Serrici's con-

'tendon that our holding permits an adopted child to haie greater 

rights than a natural child in that the adopted child could petition 

for two sets of parents and two sets of brothers and sisters. We need 

not discuss the Service's suggestion that petitioner might be considered to make an election in favor of tho natural paront —although 

the motion urges that an adopted person shonld not have an election. 

There is no election-here. Beneficiary is the only mother 'petitioner 

now has. The possibility that petitioner might someday be in a position to petition for her adoptive mother is so remote that it can. have 

no part in any realistic aPpraisal Of the situation. 

The motion suggests that our original decision should have been 

based upon the failure of the record to show petitioner has been 

legally adopted under Chinese law and urges that we remand the 

case for further evidence on this point." The petition was initially 

approved on October 15,1962. .Beneficiary is now Over 74 years old: 

Although we noted in our original decision:that the record did not 

properly develop petitioner's adoptive status, we were not disposed to 

remand the ease to Overcome deficiencies we considered to be immaterial. If anything, we are less disposed to do so now. 

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Interim Decision #1433 

Finally, the Service declares that our order of October 19, 1964 

departs from our other decisions relating to section 101(b) (1) (E). 

The motion attaches significance to our resting our decision in Matter 

of B— upon the age of the child at the tirao of adoption rather than 

the child's nonacquisition of any benefits wider the immigration laws 

through the adoption.3We see no such significance. The situation 

merely presented an obvious basis for decision apart from any question of benefits arising from the adoption. Moreover, the case was 

before us on certification to consider the District Director's decision 

approving the petition. Apparently, the District Director reached 

his decision because of petitioner's age when adopted. 

The motion also cites Matter of Martinelli, unpublished.* There, 

we first approved a petition by, a mother for her natural daughter, 

who had been adopted in Italy at the age of 17.. We noted that beneficiary was over 14 years of age when adopted but preferred to rest 

our decision upon the failure of any immigration status or benefit to 

result from the adoption. The Service moved for reconsideration of 

our order. On reconsideration we found to be appropriate adoption 

of the doctrine of Matter of B—, which hid been decided subsequent 

to our original order in Martinelli and just a few days before the 

Service's motion. Therefore, we concluded that the petition should 

be approved on the basis of petitioner's daughter's age at the time of 

adoption. Our final action in Martinelli, did not necessarily repudiate the previous basis for our decision. As in Matter of B—, we 

simply used another, and perhaps then more convenient, basis for 

decision. 

In the present motion, counsel for the Service attributes to Matter 

of the rule- that the determining factor is whether the child 

comes within the statutory definition of an adopted child. Although 

we do not find this specific language in either B— or Martinelli, we 

believe it may be a fair -statement of the rule, but only if properly 

understood. For example, as we have emphasized, we consider petitioner here does not "come within" the statutory definition' of an 

adopted child. 

In Matter of K—, discussed also in the Service's motion, we held 

that, because of the provisions of section 101(b) (1) (E), in adoption 

at the age of two years precluded the -natural parent of the adopted 

child from asserting any right, privilege or status with respect to the 

child." The natural mother, a permanent resident of this country, 

*Supra°. 

4 A-11490302. decided October 19, 1960. 

. L 8; N. Dee. 116. 

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Interim Decision #1438 

had Bled. the -visa petition. The 'opinion is brief and contains no 

facts about the adoptive paients. Ncithini indicates whether we considered the possibility of 'disregarding the adoption on any basis. 

Some of the language in the opinion is quite broad and must be read 

in the light of our statements in other matters involving the definition of an. adopted child for immigration purposes—including our 

opinion here. We do not consider Matter of K — to be inconsistent 

with our present holding. The circumstances in which that opinion 

was rendered do not sufficiently appear to determine -whether there is 

any conflict. 

Matter of 8 —, in which petitioner had been adopted at 18 years of 

age and was petitioning for his natural parents, must also be read in 

the light Of our ruling here" The statement from Matter of 8- 

quoted in the Service's motion—to tho effect that the adoption 

changed, for immigration purposes, petitioner's preadoption relationship to his natural parents applies in many, if not most situations, 

but not in all. 

None of the decisions which we have discussed squarely meet the 

question of the applicability of section 101(b) (1) (E) where the 

adoptive parents are deceased, or presumed deceased. In Matter of 

B— the adoptive parents, who were petitioner's aunt and uncle were 

living in Arizona. Martinelli's adoptive parents—again an aunt and 

uncle—were living in Italy. Matter of K — does not reveal whether 

the adoptive parents were alive or dead. The adoptive parents in 

Matter of 8 — were living in New York City. 

Although we answered the Service's motion when we pointed out 

the inapplicability here of the statutory definition of an adopted 

child, we have dismissed it at some length in an attempt to (Nun/Tome 

much apparent confusion concerning the effect of the definition. 

Upon cursory reading, the provision appears to support the Service's 

position. The District Director—as well, apparently, as the consular 

officer .who returned the approved petition to the Service for consideration under the definition—labored under the same misapprehension as the Service's counsel here. We have not previously had 

occasion to consider the precise situation now before us. As a result, 

some of the language of our prior opinions has not served to dispel 

confusion of thought in this area. 

We affirm nur order of October 19, 1964. Matter of B —, supra, 

laid down the rule that an adopted child who could not benefit by the 

adoption under the immigration laws because not within the definition of an adopted child under section 101(b) (1) (E) was not dis- 

& N. Dec. 58Y. 

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Interim Decision #1433 ' 

qualified by the proviso to that sub-section from receiving the benefit 

from his natural parents. Our present decision holds that the prohibition contained in the proviso also has no application where an 

adopted child has received no benefit under the immigration laws 

through the adoptive parent or parents and cannot in the future 

receive such a benefit, as in the instant case where the adoptive parents are dead (the death of one is proved; the death of the other is 

presumed). Hence, there is no reason for not approving the petition 

for the natural mother of the petitioner. We deny the motion. 

ORDER: It is ordered that the Service's motion be, and hereby is, 

denied. 

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