visa. The warrant of deportation did not issue until May 13, 1975. Thereafter deportation was stayed by reason of Senate consideration of a private bill. By October 1975 consular processing was finally completed and a visa number was made available for issuance of a visa the following month. The motion to reopen was filed on November 18, 1975, and the immigration judge directed reopening of the proceedings. In his decision granting the motion, the immigration judge commented as follows: Copies of letters sent by counsel to the Service, and an affidavit by the respondent, show that the Service had misplaced respondent's file and that the United States Consul in Toronto had two or three separate files on the respondent; only after considerable delay were these files consolidated, but until such consolidation had occurred, the visa application could not be processed . . . it appears that the failure to depart may have been caused by circumstances beyond respondent's control . . . Following the order of the immigration judge directing reopening of the proceedings, the district director moved for reconsideration and requested an opportunity to file a brief. The immigration judge reaffirmed on February 24, 1976. An appeal was taken by the Service which arrived here April 16, 1976. On May 10, 1976, we dismissed the Service appeal; whereupon the Service requested, and was granted, a stay of execution, and on June 11, 1976, filed a motion for reconsideration of our order. It is now over seven months since the original order of reopening. In all this time not only has no significant issue been raised concerning the administration of the immigration laws, as the majority points out, but the unusually vigorous efforts of the Service in this case, have been devoted to impeding exploration of a situation which may possibly have been brought about, at least in some part, by government derelictions. One would normally expect the Service to desire a close scrutiny of this possibility, and to welcome appropriate corrective action, if warranted. I concur in the vote of the majority and add the further thought that the zeal shown in prosecuting this particular appeal might have been better used in bringing the matter to a speedy conclusion on the merits. MATTER OF CARIAGA In Visa Petition Proceedings A-20950365 Decided by Board July 22, 1976 (1) Petitioner, the United States citizen adoptive father of beneficiary, filed petition to accord beneficiary, who was born in 1956, the status of an immediate relative under section 201(b) of the Immigration and Nationality Act. Beneficiary's natural father had executed an affidavit giving his consent to the adoption of his son on April 8, 1963. However, the actual adoption did not take place until October 20, 1975, when beneficiary was 19 years of age by a decree made retroactive to April 8, 1963, by the issuing court. (2) Section 101(b)(1)(E) of the Act respecting adoption of children for immigration purposes is to be construed strictly. In order for an adoption to be valid for immigration purposes, the act of adoption must occur before the child attains the age of fourteen. (3) Where the adoption did not take place until the beneficiary reached 19 years of age, the adoption was not valid for immigration purposes notwithstanding the retroactive effect given the adoption decree by the issuing court, and the visa petition to accord the beneficiary immediate relative classification was denied. ON BEHALF OF PETITIONER: Roman de la Campa, Esquire 2219 Allan Street Sioux City, Iowa 51103 The United States citizen petitioner applied for immediate relative status for the beneficiary as his adopted child under section 201(b) of the Immigration and Nationality Act. In a decision dated February 3, 1976, the district director denied the petition. The petitioner has appealed. The appeal will be dismissed. The beneficiary is a twenty-year old native and citizen of Mexico. It appears that in 1958, at two years of age, he was brought from Mexico to the United States by his father. It also appears that at that time, he went to live with the petitioner and his wife and has remained since. On April 8, 1963, a year before his death, the beneficiary's father executed an affidavit giving his consent to the adoption of his son by the petitioner. According to the petitioner, he did not adopt the beneficiary at that time because of advice he was given by an attorney in Idaho. The attorney told him that since the beneficiary's mother could not be located and her consent secured, the beneficiary could not be adopted until he reached eighteen. At that age, the beneficiary's own consent to the adoption would be sufficient. As a result of this advice, efforts to proceed with the adoption were abandoned until 1975. The record contains a Decree of Adoption issued by the District Court of the State of Iowa in and for Woodbury County on October 30, 1975 in which the beneficiary, at the age of nineteen, is declared adopted by the petitioner and his wife, retroactive to April 8, 1963. The decree also recites the fact that the beneficiary's father gave his consent to the adoption on April 8, 1963 and that the child has lived with his adopting parents from the time the consent was given. The issue raised is whether the retroactive effect which the Iowa Court has given the adoption should be considered by this Board in applying the provisions of the Immigration and Nationality Act. The legislative history of the Immigration and Nationality Act of 1952 clearly indicates that the Congress was concerned with the problem of keeping the families of immigrants united. As part of that policy, Congress provided liberal treatment of children. Despite this concern, Congress did not extend immigration benefits to adopted children for fear that fraudulent adoptions would provide a means of evading the quota restrictions. See S. Rept. 1515, 81st Cong., 2d Sess. 468. In 1957, however, Congress included within the definition of "child", "one adopted while under the age of fourteen 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 . . ." See Immigration and Nationality Act of September 11, 1957 (71 Stat. 639). Through the imposition of an age restriction on the creation of the adoptive relationship, Congress has attempted to distinguish between bona fide adoptions, in which a child has been made a part of a family unit, and spurious adoptions, effected in order to circumvent statutory restrictions.1 In light of the history behind the age restriction in section 101(b)(1)(E), it appears clear that the provision should be given a literal interpreation. The act of adoption must occur before the child attains the age of fourteen. Therefore, despite the retroactive effect given the beneficiary's adoption by the Iowa Court, an adoptive relationship was not created within the meaning of the Immigration and Nationality Act, when the beneficiary was adopted under Iowa law at age nineteen. We are aware of the sympathetic aspects of this case. However, the provisions of the Act do not permit recognition of this adoption for immigration purposes. The petition must be denied. ORDER: The appeal is dismissed. 1 For remarks by Congressman Walter on the "deliberate evasions of quota restrictions" which occurred under section 203(a) of the Act, by "permitting the preferential entry of adult aliens adopted long after they reach their majority", see The Congressional Record on July 6, 1959, pages 11578-80. See also, Matter of Caramanzana, 12 I. & N. Dec. 47, 48 (BIA 1967). MATTER OF M/T "DONA RITA" In Fine Proceedings NYC-10/52.3953 Decided by Board July 30, 1976 (1) Alien crewman arrived in New York via British Airways and was inspected and admitted into the United States as an alien in transit without a visa enroute to his vessel which was docked in Trinidad. Since his vessel was not in New York, he was taken into custody there by the vessel's owners, and subsequently absconded. The Service then instituted these fine proceedings against the vessel pursuant to section 254(a)(?) of the Immigration and Nationality Act. (2) Section 254(a)(2) of the Act is directed against the carrier which, having brought an alien crewman to the United States, fails to detain him on board the vessel after he has been refused a landing permit. Since the M/T "Dona Rita" was not in the United States and was not expected to be in the United States, the fine proceedings were unproperly instituted and the fine will be cancelled. In re: M/T "DONA RITA"; alien crewman involved: Asadulo Hogue Basis for Fine: Act of 1952-Section 254(a)(2) [8 U.S.C. 1284]. ON BEHALF OF CARRIER: John C. Lane, Esquire New York, New York 10006 The Acting District Director in New York imposed a fine of $1,000 upon the carrier, with regard to the vessel M/T "Dona Rita," for a violation of section 254(a)(2) of the Immigration and Nationality Act, and, in a decision dated October 14, 1975, he denied a request for cancellation of the fine. The carrier has appealed from that decision. The appeal will be sustained and the fine will be cancelled. Section 254(a)(2) of the Act provides in pertinent part as follows: "The owner, agent, consignee, charterer, master or commanding officer of any vessel or aircraft arriving in the United States from any place outside thereof who fails . . . (2) to detain any alien crewman on board the vessel . . . after such inspection [as set out in section 254(a)(1)] unless a conditional permit to land has been granted such alien crewman . . . shall pay to the collector of customs of the customs district in which the port of arrival is located or in which the failure to comply with the orders of the officer occurs the sum of $1,000 for each alien crewman in respect of whom any such failure occurs." (Emphasis supplied.) The record shows that an alien, a citizen of Bangladesh, was hired in Bangladesh as a crewman on the M/T "Dona Rita," which was docked in Trinidad. A ticket was purchased for him from Bangladesh to New York on British Airways. According to the carrier, the alien was to be flown from New York to Trinidad where he would join the vessel. Upon arrival in New York he was inspected and admitted as an alien in transit without visa through the United States. In his decision of October 14, 1975 the Acting District Director states that it was the understanding of the Immigration and Naturalization Service and British Airways that the M/T "Dona Rita" was in New York. Upon learning that the vessel was, not in New York, British Airways notified the carrier in New York, who thereupon took custody of the alien. The alien subsequently absconded and the Service instituted these proceedings. Section 254(a)(2) is directed against the carrier which, having brought an alien crewman to the United States, fails to detain him after he is refused a landing permit. Since the M/T "Dona Rita" was not in the United States and was not expected to be in the United States, fine proceedings under section 254(a)(2) were improperly instituted. Accordingly, the appeal will be sustained and the fine will be cancelled. ORDER: The appeal is sustained; the fine is cancelled. |