that country, lived in that country as husband and wife, consented to the jurisdiction of the foreign court, and appeared in the foreign action through their authorized representatives. Matter of Koehne, 10 I. & N. Dec. 264 (BIA 1963); cf. Matter of Ma, 15 I. & N. Dec. 70 (BIA 1974); Matter of Kurtin, 12 I. & N. Dec. 284 (BIA 1967). The record indicates that the beneficiary's first wife may have been domiciled in Ecuador at the time of the divorce. It also indicates that the first wife may have been personally served with the complaint in the Ecuadorian action.1 If the preceding facts are true, we believe that any policy objections to the recognition of the divorce based on the parties' failure to appear personally before the Ecuadorian court would be overcome. The burden of establishing the validity of the Ecuadorian divorce is upon the petitioner. See Matter of Brantigan, 11 I. & N. Dec. 493 (BIA 1966). Nevertheless, since there was confusion concerning the law to be applied in this case, we shall remand the record to give the petitioner an opportunity to establish the facts surrounding the Ecuadorian divorce. The district director should then enter a new decision. ORDER: The appeal is sustained, and the record is remanded to the district director for further proceedings in accordance with the above opinion. 'On appeal, counsel claimed that the wife personally appeared in the Ecuadorian action and offered to submit proof of such appearance. However, no such proof has been received. MATTER OF LEE In Visaa Petition Proceedings A-20316834 Decided by Board March 21, 1975 The petitioner, a United States citizen, applied for preference status for the beneficiary as her brother under the provisions of section 203(a)(5) of the Immigration and Nationality Act. However, blood tests excluded the claimed relationship and the visa petition approval was revoked. Petitioner's mother now claims that she adopted the beneficiary at birth in Hong Kong in 1957. The petition must be denied for two reasons. First, under Chinese law, the beneficiary's mother could not adopt without the consent of her husband (who was unaware of the alleged adoption in 1957). Such consent was not forthcoming until 1973, after beneficiary had passed the age of 14 years (see section 101(b)(1)(E) of the Act). Secondly, the sole evidence presented in support of the adoption was a statutory declaration executed by the putative adoptive mother in 1973. This evidence does not meet the standards for proof of Chinese customary adoption. See Matter of Kwan, 14 I. & N. Dec. 175 (BIA 1972) and Matter of Chin, 14 I. & N. Dec. 150 (BIA 1972). ON BEHALF OF PETITIONER: Z. B. Jackson, Esquire Jackson & Hertogs San Francisco, California 94111 The United States citizen petitioner applied for preference status for the beneficiary as her brother under section 203(a)(5) of the Immigration and Nationality Act. The district director approved the petition on June 15, 1973. However, when blood tests excluded the claimed relationship, the district director notified the petitioner of his intent to revoke approval of the petition. After giving the petitioner an opportunity to submit evidence in opposition to revocation, the district director revoked approval of the visa petition in a decision dated July 18, 1974. The petitioner has appealed from that decision. The appeal will be dismissed. The petitioner's mother now claims that she adopted the beneficiary at birth in Hong Kong in 1957 and raised him as her son. Her husband was not informed of the adoption until sometime after October 16, 1973; prior to that time he had allegedly considered the beneficiary to be his blood son. Upon learning the true circumstances of the beneficiary's birth, the husband purportedly consented to the adoption. By that time, however, the beneficiary was beyond the 14-year age requirement for adoption in accordance with section 101(b)(1)(E) of the Act. See Matter of Butterly, 14 I. & N. Dec. 460 (BIA 1973). The law of adoption applicable to Chinese domiciled in Hong Kong, in addition to recent enactments by the Hong Kong authorities, has been Chinese law and custom. Matter of Poon, 14 I. & N. Dec. 155 (BIA 1972); Matter of Ng, 14 I. & N. Dec. 135 (BIA 1972). The record contains a memorandum regarding Chinese law and custom in Hong Kong prepared in March 1974 by the Far Eastern Law Division of the Library of Congress. That memorandum contains the following passage taken from T'ungtsu Chu, Law and Society in Traditional China 104 (Paris: Mouton & Co. 1965): A wife's authority was controlled and limited by her husband. To be sure, she had the right to discipline her children and arrange for their marriages, but she could not go counter to her husband's will. And while she had authority to control the household and the household property, this authority also derived from her husband. Any activity over and above routine matters had to be approved by him. This was clearly stated by the Supreme Court [of China] as late as 1916. Undoubtedly, it reflected a traditional viewpoint. The same source also indicates that under the principle of the "three dependencies," the wife in the traditional Chinese household could never act autonomously. Another authority on Chinese law indicates that the wife in traditional Chinese society was not the equal of her husband. The concept of husband and wife having "equal rank" was merely an external aspect; inside the house, the wife owed obedience to her husband. M. J. Meijer, Marriage Law and Policy in the Chinese People's Republic 15 (Hong Kong: Hong Kong University Press 1971). In an unpublished decision, Matter of Wing Hon Leong, A-17190825 (BIA September 30, 1971), we considered the question of an adoption by a married woman without her husband's consent under the law of China prior to the effective date of the Civil Code of the Republic of China. We found that there was no provision of Chinese law in effect prior to the Civil Code which would have permitted an adoption to be effective as to a married man without his consent or knowledge. Counsel has relied on an earlier unpublished decision, Matter of Lung Chan, VP3-I-123920 (BIA April 30, 1962). In that case we recognized an adoption under Chinese law and custom in Hong Kong where there evidently had been an accidental switch of children at birth, and neither parent knew that the child was not their blood child until blood tests were undertaken. The result in that case may have been influenced by the sympathetic factors present; we do not believe that it represents a correct application of the adoption laws of Hong Kong, and we decline to follow it in the present situation. In Matter of Rodriguez, 14 I. & N. Dec. 335 (BIA 1973), we held that an adoption by a single woman was possible under Chinese law and custom in Hong Kong. Obviously, that case is distinguishable from the present situation involving a married woman who allegedly adopted without her husband's consent or knowledge. Nevertheless, counsel has pointed out that in Matter of Rodriguez we noted an assertion by the district director "that the courts of Hong Kong have accepted the principle that a married woman was capable, acting alone, of adopting a child, In Re T.M.H. (An Infant), 1962 H.K.L.R. [181,] 184." In the context of Rodriguez, that statement was only dictum. Moreover, upon a rereading of In Re T.M.H., supra, we are satisfied that case does not establish that a married woman can adopt without her husband's consent under Chinese law and custom in Hong Kong. Counsel has also referred to our unpublished decision in Matter of Yu Lung Hei, A-19192671 (BIA October 3, 1973). That case, however, dealt with adoption under the Civil Code of the Republic of China and is not applicable to the present situation involving Chinese law and custom in Hong Kong. On the basis of the information presently available to us, we conclude that the petitioner has failed to establish that a married woman is empowered to adopt without her husband's consent under Chinese law and custom in Hong Kong. Moreover, there is an additional basis for not approving this visa petition. The sole evidence of the alleged adoption is a Hong Kong statutory declaration executed by the putative adoptive mother on October 16, 1973. This evidence does not meet the standards for proof of Chinese customary adoptions set forth in Matter of Kwan, 14 I. & N. Dec. 175 (BIA 1972), and Matter of Chin, 14 I. & N. Dec. 150 (BIA 1972). The district director's decision to revoke approval of the visa petition was correct. The appeal will be dismissed. ORDER: The appeal is dismissed. MATTER OF KONG In Visa Petition Proceedings A-20282149 Decided by Board March 21, 1975 Under Burmese law a Kittima adoption to be valid must be registered pursuant to the Registration Act. A registered instrument may operate from the date of its execution if such date is prior to the date of registration (Section 47 of the Registration of Kittima adoptions Act). An Appatittha (informal) adoption is not sufficient to confer immigration status under section 203(a)(2) of the Immigration and Nationality Act. ON BEHALF OF PETITIONER: Joe M. Chan, Esquire San Francisco Neighborhood Legal Assistance Foundation 250 Columbus Avenue, Suite 200 San Francisco, California 94133 The petitioner has moved for reconsideration and reversal of our decision dated March 25, 1974, in which we dismissed her appeal from the district director's denial of her petition to classify the beneficiary as her adopted son under section 203(a)(2) of the Immigration and Nationality Act.' Counsel has submitted additional material pertaining to Burmese law, and we have received another memorandum of Burmese law from the Far Eastern Law Division of the Library of Congress. The motion to reconsider will be denied. Initially, counsel challenges our determination that an Appatittha (informal) adoption under Burmese law is not sufficient to confer immigration status upon the beneficiary. We have reviewed the contentions advanced on appeal, as well as the materials in the record pertaining to Burmese law. We are satisfied that our decision not to accept an Appatittha adoption as sufficient for the purpose of the Immigration and Nationality Act was correct. We have since reaffirmed that decision in Matter of Chang, 14 I. & N. Dec. 720 (BIA 1974). Counsel maintains that a Kittima adoption effected under the Burmese law does not give the adopted child the full rights of a natural born legitimate child in Burma. While this contention may be true, we do not see how it aids the present beneficiary. Counsel also argues that registration is not a prerequisite to the 1 That decision is Matter of Kong, 14 I. & N. Dec. 649 (BIA 1974). |