Christian Religion and Other Religions" with a supplementary course in "Theory and Practice of Christian Education." Prior to her present employment she taught at the Masters School in West Simsbury, Connecticut, which she described as a Christian School at which she taught from the perspective that all her teaching was in furtherance of her faith in God (Tr. p. 12). Her testimony indicates a religious motivation on her part in joining the Jesus People and organizing a school for their children (Tr. p. 13). Further testimony indicates that she considers her occupation to be a religious calling and that her religious perspective is involved in her performance of her occupation (Tr. pp. 14-18, 40–47). The record also contains evidence that the respondent meets the other qualifications required by the regulations to fit within this category. She has been primarily engaged in working for the religious organization for the previous two years; she has been working for them on a full-time basis since the summer of 1974. She has established that she will be principally engaged (more than 50% of working time) in working for the organization. She intends to work for the organization 100% of her working time. The difference from the prior terms of Schedule "A" is that presently it is sufficient that she intend to work for the organization for more than 50% of her time, whereas previously, (at least as interpreted below) the duties performed had to be ones which related to the "religious objectives" of the organization more than 50% of working time. In view of the fact that the record already contains sufficient evidence to establish that the respondent satisfies the new terms of Schedule "A," it is not necessary to remand the case to the immigration judge for further consideration. We shall order that her application for adjustment of status be granted. ORDER: The appeal is sustained, and the respondent's application for adjustment of status under section 245 of the Immigration and Nationality Act, as amended, is hereby granted, conditioned upon appropriate and requisite clearances by the Service. MATTER OF LEE In Visa Petition Proceedings A-20929617 A-20929618 A-20929619 Decided by Board August 18, 1977 Under Korean law, the relationship created between a child born out of wedlock and his father by "recognition" through registration in the Korean Family Registry is identical in all relevant respects to that between a father and child born during marriage. Since the rights and duties flowing from each of the relationships is identical, a “recognized" child is a "legitimated" child under section 101(b) of the Immigration and Nationality Act. Where, as here, the recognition occurred prior to the eighteenth birthday of the children, they are eligible for issuance of immigrant visas under section 203(a)(2) of the Act. ON BEHALF OF PETITIONER: Pro se BY: Wilson, Acting Chairman; Maniatis and Maguire, Board Members. Board Member Appleman dissenting. These cases are before the Board on a motion for reopening and reconsideration of our decision of September 7, 1976, in which we affirmed the decision of the District Director denying the visa petitions on the ground that the petitioner's sons, although "recognized" under Korean law by registration as the legal children of the petitioner in the Korean Family Registry, were not "legitimated" for the purposes of section 101(b) of the Act. The petitioner now contends that we have misconstrued Korean law, and that the relationship created by "recognition" brings into effect identical rights and duties to those which flow from the relationship between a father and a child born during wedlock. The petitioner has submitted a memorandum of law from a Korean attorney in support of his claim. See 8 C.F.R. 3.2. The motion to reopen and reconsider will be granted. Upon reconsideration, we shall withdraw our September 7, 1976, decision, and order the petitions approved. In the past we have relied upon a 1968 memorandum from the Library of Congress to hold that the legal relationship created by "recognition" is not equivalent to a "legitimation" under Korean law. Matter of Kim, 14 I. & N. Dec. 561 (BIA 1974). Nonetheless, we held until 1974 that this procedure created a valid adoption under Korean law, and consequently classified the relationship as one of father-child under section 101(b)(1)(E). Matter of Chong, 13 I. & N. Dec. 45 (BIA 1968). We withdrew from this holding in Matter of Chung, Interim Decision 2312 (BIA 1974), when we learned from the Library of Congress of a Korean Supreme Court decision to the contrary. Since 1974, we have thus held that "recognition" does not create a relationship valid under section 101(b) for the purpose of immigration benefits. In dealing with a relationship created under the laws of a foreign country, we have long analyzed that relationship in terms of the rights and duties it brings into effect under the foreign law. Matter of Kwong, Interim Decision 2387 (BIA 1975); Matter of Scaramuzzo, unreported (BIA October 16, 1957). Cf. Matter of Irani, Interim Decision 2468 (BIA 1975); Matter of Kong, Interim Decision 2360 (BIA 1974). If a Korean legal procedure brings into effect rights and duties coextensive with the rights and duties of children born during wedlock under the laws of Korea, then the procedure by which this is accomplished deserves inclusion under the legally descriptive term of art "legitimation." In the cases now before us for reconsideration, the petitioner has submitted a memorandum of law from a Korean attorney. This memorandum details the rights and duties flowing from the relationship created by "recognition" by registration of the child in the Korean Family Registry as the legal child of the father. The memorandum alleges that the rights and duties flowing from the legal relationship created by the act of "recognition" are identical to the rights and duties flowing from the relationship between a a father and a child "born. . . during the marriage." We have consulted the Far Eastern Law Division of Library of Congress. In a memorandum dated June 28, 1977, Dr. Sung Yoon Cho, Acting Chief of the Division, has verified that, with the exception of one minor difference which is arguably irrelevant for immigration purposes, the rights and duties flowing from the two relationships are coextensive. The rights and duties flowing from the relationship created by "recognition" directly parallel those resulting from the relationship between the father and a child "born during . . . the marriage" in the following ways: (1) The father in both cases owes an absolute duty of support (Article 974 of the Korean Civil Code of 1960); (2) The father in both cases has an absolute right of custody (Art. 909); (3) The child in both cases has full and equal inheritance rights with respect to property (Arts. 1000, 1008, 1014); (4) The child in both cases has a legal duty to obey his father (Art. 974); (5) The child in both cases has a right to use the family name (Arts. 781 and 782); (6) A son in both cases can succeed to the role of "Head of Family" (Art. 984). The sole difference in the rights flowing from these two relationships revealed in the two documents is that, although both a recognized son and a son born during the marriage may succeed to the title of "Head Of Family," the oldest son born during the marriage takes precedence over the "recognized" son in the assumption of that role (Article 985). This difference is immaterial for two reasons. First, although a daughter born during the marriage may succeed to "Head Of Family," her rights are inferior to the rights of the "recognized" son. Thus, if there were no son born during the marriage, the "recognized" son would succeed to the role of "Head Of Family" ahead of a female sibling born during the marriage. Second, the concept of "Head of Family" is entirely foreign to United States common law, and has no parallel in United States parent-child relations. Thus, if all the remaining rights and duties are identical, it should be deemed irrelevant to the issue of immigration benefits, as beyond the twin goals of family unity and the prevention of immigration fraud. We conclude that the relationship created by "recognition" through registration in the Korean Family Registry as the legal child of the father is identical in all relevant respects to that between a father and a child born during the marriage under Korean law. Since the rights and duties flowing from each of the relationships are identical, we shall therefore include a "recognized" child within the ambit of a "legitimated" child under section 101(b). We therefore recede from our earlier holding in the present case, and hold that the petitioner's three sons have been "legitimated" under Korean law. As legitimated children who were under the age of eighteen years at the time of their legitimation, and were at that time in the custody of their father, they are eligible for the issuance of an immigrant visa under section 203(a)(2) of the Act. The petitions will therefore be approved. ORDER: The motion to reconsider is granted. FURTHER ORDER: The petitions are approved. Irving A. Appleman, Member, Dissenting In my opinion this decision is premature. The ruling is based on a memorandum from the Far Eastern Law Division of the Library of Congress, in response to a communication from this Board. Neither our communication nor the response, was seen by the parties prior to the decision. The memorandum appears to be somewhat at variance with earlier memoranda from the Library of Congress involving the same subject matter. Relying on an earlier statement, we held in Matter of Chong, 13 I. & N. Dec. 45 (BIA 1968) that there was a valid adoption on somewhat similar facts. In 1974, as a result of another memorandum from the Library of Congress, we withdrew from this in Matter of Chung, Interim Decision 2312. Now, armed with still a third memorandum, we are holding that timely legitimation occurred. In Matter of Hassan, Interim Decision 2531 (BIA 1976) I expressed the view, in a separate opinion, that these memoranda of foreign law, obtained from the Library of Congress, should be furnished to both sides, with opportunity for comment, prior to decision. To my mind this case still further illustrates the evils flowing from the somewhat arbitrary manner in which the Board requests these statements, and then acts upon them ex parte. I have no quarrel with the Board seeking the help of the experts in the Library of Congress. Foreign law, and particularly the kind of nonstatutory, custom law with which this Board must often deal, is sometimes hard to ascertain. It is particularly difficult for the alien, who frequently finds that local consulates, or even his embassy, do not have appropriate legal help or may even be unsympathetic to his claims and hence not disposed to be helpful. I am somewhat less tolerant of the lethargy demonstrated by Service personnel, in ascertaining the foreign law, since they do have access to the Library of Congress and can, with a little effort, obtain the necessary information at a level where it can be made part of the record and appropriately addressed by the parties. It is possible they assume that this is part of the alien's overall burden of proof, without entirely recognizing the practical difficulty he may encounter. In this case, however, it is difficult to fault the Service inasmuch as the Board had already twice examined the Korean law. Accordingly, without at this time expressing a view as to correctness of the majority interpretation, I would furnish a copy of the Board's letter of inquiry and of the response of the Library of Congress, to both Service and petitioner, and would solicit a statement of position. If the responses cast sufficient doubt on the foreign law, I would remand the case and reopen the proceedings for appropriate development. As pointed out in my concurring opinion in Hassan, supra, foreign law is a question of fact to be appropriately proved. I think there is a dueprocess limit to the extent administrative shortcuts can or should be taken in this area. APPENDIX RECOGNITION AND THE RESULTANT PARENTAL The Status of a Recognized Child |