Interim Decision #2147 

MATTER OF NG 

In Visa Petition Proceedings 

A-20029181 

Decided by Board April 28, 1972 

The validity of the simple adoption of beneficiary under Chinese law and custom 

(Tsing Code) in Hong Kong in 1954 is not vitiated by the fact beneficiary is a 

female. The Tsing Code provided for two different kinds of adoptions: (1) a 

"ritual adoption", an adoption of a male to act in the ritual capacity of an heir 

to the ancestral cult associated with the agnatic lineage of the adopted father, 

and (2) a "simple adoption", an adoption of a male or female to stand in the 

relationship of son or daughter of the adoptive parent, but without acting in 

the capacity of an heir to the ancestral cult or lineage. [Matter of Yiu, 13 I. & 

N. Dee_ 624, overruled.] 

ON BEHALF OF PETITIONER: ON BEHALF OF SERVICE: 

Charles J. Wong, Esquire R. A. Vielhaber 

250 Columbus Avenue, Room 200 Appellate Trial Attorney 

San Francisco, California 94133 (Brief filed) 

(Brief filed) 

The lawful permanent resident petitioner applied for preference 

status for the beneficiary as his Unmarried daughter under section 

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

Director denied the petition in an order dated April 29, 1971, and 

the petitioner appeals. The appeal will be sustained. 

The beneficiary is an unmarried female, born July 1, 1949 in 

Hong Kong, evidently of Chinese ancestry, who presently resides 

in Hong Kong. The file contains an adoption agreement stating 

that the beneficiary was adopted by the petitioner's wife on June 

17, 1954. The petitioner, who was married to his spouse in Hong 

Kong in 1938, stated in his petition that he had last resided 

together with his wife in Hong Kong in 1948. 

Section 203(aX2) provides for visa preference for qualified immigrants who are the unmarried sons or unmarried daughters of an 

alien lawfully admitted for permanent residence. The beneficiary 

is unmarried and the petitioner is an alien lawfully admitted for 

permanent residence. There is no definition of "son" or "daughter" 

in the Immigration and Natidnality Act, but "child" is defined in 

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Interim Decision #2147 

section 101(b)(1). Subsection (E) defines "child" 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 for at least two years. We have 

previously held that a child adopted in compliance with section 

101(b)(1XE) of the Act qualified as a "son" or "daughter" for 

purposes of receiving preference status, Matter of Yue, 12 I. & N. 

Dec. 747 (BIA, 1968). 

We note that the two-year legal custody and residence requirement may be satisfied when custody and residence have been with 

only one of the adoptive parents, Matter of Y—ni"--W—, 9 I. & N. 

Dec. 176 (A.G., 1961). The file contains evidence that the petitioner's spouse has resided at her present address since at least 

1961, and that the beneficiary resides at the same address. On the 

basis of this we presume that the residence and custody requirement has been met. The adoption in the present case took place 

before the beneficiary attained the age of fourteen years. 

The District Director denied the petition because he was of the 

opinion that the beneficiary could not be considered an adopted 

child for purposes of section 101(b)(1XE) because she is a female. 

He found that the validity of the adoption must be determined by 

Chinese law and custom, or the Tsing.Code. The District Director 

cited this Board's decision in Matter of Yiu, 13 I. & N. Dec. 624 

(BIA, 1970), as authority for the proposition that the adoption of a 

female is precluded under the Tsing Code. He accordingly denied 

the petition. 

It is well settled that the validity of an adoption upon which an 

immigration status is grounded is governed by the law of the place 

where the adoption status was created, Matter of 1?—, 6 I. & N. 

Dec. 760 (BIA, 1961). In Matter of Yue, 12 I. & N. Dec. 747 (BIA, 

1968), we held that the law of adoption applicable to Chinese 

domiciled in Hong Kong is Chinese law and custom. 

Counsel has furnished us with an expert opinion prepared by 

Anthony Richard Dicks, a Barrister-at-Law in Hong Kong, who is 

also a Lecturer in Oriental Law at the University of London. Mr. 

Dicks defines "Chinese law and custom" as relating to Hong Kong 

to mean "the rules of law which were generally in force in the 

Chinese Empire on, 5th April 1848 together with and subject to 

such rules of custom as were at that date and/or have thereafter 

been applied in China or any part thereof or in Hong Kong with 

the force of law." Chinese law and custom was described as "the 

common law of China" in a decision of the Supreme Court of Hong 

Kong, Ho Tsz-Tsun v. Ho Au-Siti, 10 H.K.L.R. 69 (1915). According 

to Mr. Dicks, this definition has been adhered to and applied by 

the courts of Hong Kong as denoting the customary law of China 

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Interim Decision #2147 

"as partly evidenced by, but not necessarily as wholly defined by 

or confined to, the provisions of the statutory law of the late 

Ch'ing (Tsing) imperial dynasty as they were in force on 5th April 

1843." We accept the expert opinion of Mr. Dicks on this point. 

We agree with counsel that part of the confusion regarding 

Chinese adoption stems from the use of the words "formal" and 

"informal" to refer to the two kinds of adoption possible under the 

Tsing Code. In Matter of Chin, 12 I. & N. Dee. 240 (BIA, 1967), we 

endorsed the view that the Tsing (or Ching) Code provided for two 

kinds of adoption, each with different legal implications: (1) adoption of a male child for the purpose of instituting him as an heir for 

perpetuation of the ancestral cult, and (2) the adoption of a child, 

whether male or female, without intending to institute it as an 

heir. In Matter of Yue, supra, we referred to these two kinds of 

adoption as (1) a formal adoption, and (2) an informal adoption. 

We agree that it would be better to distinguish between "ritual 

adoptions" and "simple adoption." Counsel would describe the first. 

as "an adoption by a childless married man or his widow of a male 

to act in the ritual capacity of an heir to the ancestral cult 

associated with the agnatic lineage of the adopted father," and the 

other as "the adoption of a male or female to stand in the 

relationship of son or daughter of the adoptive parent, but without 

acting in the capacity of an heir to the ancestral cult or lineage." 

This definition agrees with the classification used by the noted 

Dutch authority on Chinese law, Professor M. H. Van Der Valk, in 

his text, An Outline of Modern, Chinese Family Law (Peking, 1939), 

at page 134. Van Der Valk refers to the simple or "informal" 

adoption simply as "an adoption." 

This Board has on several occasions recognized the second kind 

of adoption as valid for immigration purposes, Matter of Dung 

Chan, VP3-I-123920 (BIA, unreported, April 30, 1962); Matter of 

Chin, 12 I. & N. Dec. 240, supra. The cases of Matter of Yue, 12 I. & 

N. Dee. '747 (BIA, 196k); and Matter of Lung Chart, VP2-I-123920 

(BIA, unreported, April 30, 1962), both involved simple adoptions of 

a female in Hong Kong. In both cases we approved the petition. 

The provisions of the Tsing Code dealing with adoption were 

construed by the Supreme Court of the Republic of China in 1918 

to permit the adoption of a female child. See the reference to 

Appeal Case No. 195 found in Matter of Yue, supra, at page 748. 

Our decision in Matter of Yiu, supra, was in conflict with these 

decisions recognizing simple adoptions. In Yiu, we held that 

"Chinese customary law jin Hong Kong] permits adoption only for 

purposes of succession to the family and is limited to males." The 

authority cited in support of our holding was the. Report of the 

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Governor's Committee on Chinese Law and Custom in Hong .17cmg, 

p. 200 (Hong Kong, 1948). 

Petitioner's counsel asks that we reconsider and overrule our 

precedent decision in Matter of Yiu, supra, on the basis of new 

material not previously available to us. He points out that the 

authorities cited in the Yin decision actually do not preclude the 

adoption of females under the Tsing Code. 

For instance, Appendix 9 of the Report of the Governor's Committee on Chinese Law and Custom in Hong :long was cited in 

footnote 2 to support the proposition that only the formal institution of a male child as an heir was permitted in Hong Kong. The 

expert opinions furnished by counsel support his position that the 

writer of the appendix was not expressing the official view of the 

Governor's Committee, but was merely stating his own personal 

opinion. Further, it appears that his remarks were confined to the 

subject of the formal institution of an heir. 

An extract from a statement by Judge Russell of the Supreme 

Court of Hong Kong, appearing in the report of the Governor's 

Committee, was cited in footnote 3 in Yin. Counsel calls to our 

attention the fact that the report of the Governor's Committee did 

not contain the full text of Justice Russell's Report on Child 

Adoption and Domestic Service Among Chinese. In fact, on page 

two of the report, discussing the legal effect of the simple adoption 

of females in Hong Kong, Justice Russell wrote the following: 

They have equal rights with natural-born daughters. They are provided 

with a dowry when married, but, like natural-born daughters, they have no 

other claim on the inheritance. 

Based upon the foregoing, we conclude that counsel is correct in 

his contention that our decision in Matter of Yin, supra, was in 

error. We accordingly overrule that decision on the basis of the 

new material before us that was unavailable when we decided Yin. 

Once our prior holding in the Yiu, case is overruled, the legal 

basis for the District Director's denial of the present petition is 

gone. We reaffirm our earlier holding in Matter of Yne, wpm, 

which recognized the possibility of the simple adoption of a female 

in Hong Kong. We shall proceed to resolve the present appeal on 

the basis of the legal principles set forth in Matter of Yue, supra, 

which antedated our decision in Yiu. 

The evidence in the record establishes that a valid simple 

adoption of a female child took place in Hong Kong in 1949. The 

Service does not claim that there is no bona fide family unit. We 

hold that such an adoption meets the requirements of section 

101(bX1)(E) of the Act. We.accordingly overrule the District Director and hold that the beneficiary is entitled to preference status 

under the provisions of section 203(a)(2) of the Immigration and 

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Interim Decision #2147 

Nationality Act as the child of the petitioner. The following order 

shall be entered. 

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

sustained. 

It is further ordered that the petition for preference classification filed by the petitioner pursuant to section 203(a)(2) of the 

Immigration and Nationality Act be and the same is hereby 

approved. 

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