adoptive mother reared the child but left him with her own mother in Hong Kong when she left for the United States in July 1957. The affidavit concludes that the beneficiary is her adopted child with the consent of the husband who has been supporting her and the child all during that time, and that the child has lived with her since infancy and that she has treated him as her own child. The file also contains a copy of a notarized statutory declaration executed by the petitioner on February 16, 1957, in Hong Kong which sets forth that on December 15, 1947, the petitioner's wife who was then residing at Cheung On Village, at the request of the surviving parent of the child and with his consent adopted the said child as their own child according to Chinese law and custom; that since December 15, 1947, the child has been residing with and under the care of his wife; that on December 15, 1947, a dinner party was given by his wife in celebration of the adoption of the child in accordance with Chinese law and custom; and there was attached to the affidavit a photograph of the adopted child. In addition, there has been submitted a certificate issued at the Chinese General Consulate at New York dated January 30, 1958, in which it is set forth that on January 9, 1958, the notarized statutory declaration referred to above was exhibited to the Consulate General and on January 9, 1958, the petitioner and his wife appeared at the Consulate and were questioned regarding the adoption. In order to protect the interests of the adopted person the Consulate General requested the petitioner and his wife to reiterate in writing the continuation of this adoptive relationship and their determination to observe the right and the duty to protect, educate, and maintain their minor child. The certificate concludes that the Consulate General is satisfied that the adoption was effected in good faith and that the petitioner and his wife were discharging faithfully their duties as parents. At oral argument counsel exhibited pictures of the mother and adoptive child at the age of 2 and 3 years and, in addition, a photograph of the petitioner, his wife, and the child in 1957, as well as individual pictures of the beneficiary. The first question presented is whether there has been a valid adoption in accordance with the law of the place of adoption. The parties involved are all native Chinese persons and the provisions of the Chinese Civil Code, promulgated on May 23, 1929, are applicable.1 Article 1074 of the Chinese Civil Code provides that when 1 Under the law of the Republic of China, when a party to an adoption is an alien (other than a Chinese), the Rules on the Conflict of Law, effective June 6, 1953, govern. Article 18 of this law provides: "The conditions of adoption and the dissolution thereof are determined as to each party by the law of his or her home country. Regarding the effect of adoption, the law of the home country of the adopting parents governs." a married person adopts a child, he must do so jointly with his spouse. Article 1079 of the Chinese Civil Code provides: Article 1079. Adoption shall be effected in writing, unless the person to be adopted has been brought up as a child of the adopting parents since infancy. The Far Eastern Law Division of the Library of Congress has provided a memorandum on the Formality of Adoption under the law of the Republic of China. Concerning the "savings clause" in article 1079 dealing with the "infancy" adoption which is not required to be in writing, according to an advisory opinion of the Judicial Yuan, the terminology of the so-called "infancy" provided in the savings clause of Article 1079 of the Civil Code, shall be construed to mean a child not more than 7 years of age (Judicial Yuan Advisory Opinion, 1942, No. Yuan 2332). To further illustrate the meaning of this statutory provision, a Supreme Court decision states that to effect an adoption of a person over 19 years of age as an adopted son, without a written document, is in itself not complying with the formality required by law as provided in article 1079 of the Civil Code. In accordance with article 73 of the Civil Code, which provides that a juristic act which is not in the form prescribed by law is void unless otherwise provided by law, it is not valid and, therefore, the legal relationship of an adopted son and the adopting parents had never been created (Supreme Court, 1940, No. Shang 1817). There has been evidence submitted in the form of affidavits and photographs that the beneficiary was adopted in China when less than 3 months old by the petitioner's wife with the consent of her husband. There appears, therefore, to have been a valid infancy adoption which was not required to be in writing as provided in article 1079 of the Chinese Civil Code. Furthermore, in view of the requirement in article 1074 that where a married person adopts a child he must do so jointly with the spouse, it would appear that there was effective an adoption by both of the adoptive parents, inasmuch as the husband has sworn he consented to the adoption in 1947. The second point to be determined is whether the beneficiary qualifies as an adopted child under the immigration laws. A child of a United States citizen is eligible for nonquota status. By amendment contained in section 2 of the Act of September 11, 1957 (71 Stat. 639; Public Law 85-316), the definition of the term "child" contained in section 101 (b) (1) of the Immigration and Nationality Act was expanded to include: (E) a child adopted while under the age of 14 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 562713-61- -12 By this amendment the definition of "child" was extended to include adopted children under limited circumstances. The legislative history reveals the amendment was considered desirable to prevent hardship in cases where the child was chargeable to a heavily oversubscribed quota and would not otherwise be able to accompany his adoptive parents; the amendment included adequate safeguards to prevent abuse.2 The legislative history discloses that the amendments to the definition of the term "child" as used in Titles I and II of the Immigration and Nationality Act were enacted for the purpose of alleviating certain hardships which had arisen as a result of an administrative interpretation that a child born out of wedlock to a woman who subsequently marries a man not the father of the child is not included within the term "stepchild," and to clarify the law so that an illegitimate child would in relation to its mother enjoy the same status under the immigration laws as a legitimate child. The amendment to include adopted children in those cases where the child was adopted while under the age of 14 years and who had thereafter been in the legal custody of and resided with the adopting parent for at least two years was likewise for the purpose of preventing hardship. Thus, throughout the amendatory legislation in the Act of September 11, 1957, there is set forth the principle of amending the immigration laws for the purpose of providing for more generous treatment of children and demonstrating the concern of Congress with the problem of keeping families of United States citizens and immigrants united by affording a more liberal treatment of children so as to implement the underlying intention of the immigration laws regarding the preservation of the family unit.3 The legislative history fails to disclose what abuses were intended to be guarded against in adoption cases. However, it is evident from the requirement that the adoption be limited to children adopted while under the age of 14 years who had been in the legal custody of and resided with the adopting parent for at least two years that it was intended to prevent ad hoc adoptions which were undertaken merely for the purpose of circumventing the immigration laws. The statute requires legal custody and residence for two years with "the adopting parent or parents." No light is shed by the legislative history as to why the term "adopting parent or parents" was used in the singular and plural in the alternative. Since the legislative history indicates no restriction on the use of these terms in the alternative, and bearing in mind that the amendment was enacted for the purpose of liberalizing the immigration laws to overcome 2 Senate Report No. 1057 (85th Congress, 1st Session), pages 3 and 4. 32 U.S. Code Congressional and Administrative News, pp. 2020 and 2021 (85th Congress, 1st Session). hardships which had been revealed by the prior law, it is felt that a liberal construction should be adopted insofar as possible in line with the language used. As used in the immigration laws, a father or mother is synonymous with the term "parent" where the necessary relationship exists (section 101 (b) (1), (2), Immigration and Nationality Act). In the instant case, the beneficiary was adopted in China in infancy and such an adoption has been shown to constitute a legal adoption in China. The child has thereafter been for at least two years in the legal custody of and has resided with the adopting mother who by definition is an adopting parent as provided in section 101(b)(1) of the Immigration and Nationality Act. The facts of the case satisfy the definition of an adopted child as provided in section 101 (b) (1) (E). The element of fraud or abuse does not appear to be present since this adoption occurred long prior to the present amendment and even the statutory declaration executed by the present petitioner in Hong Kong on February 16, 1957, was prior to the enactment of the amendment on September 11, 1957. In addition, other evidence in the form of photographs has been submitted to show that this beneficiary was reared by the mother since at least the age of 2 years. It, therefore, appears that we have existing a bona fide family unit of adoptive parents and adopted child which has been in existence for more than 10 years past. It would undoubtedly be the very sort of hardship that the amendment was designed to alleviate if it were to be held that this child could not join its adoptive parents in the United States. The Service has made reference to the provisions of section 205 of the Immigration and Nationality Act which set forth a procedure for granting nonquota or preference status by reason of relationship. We regard this merely as a procedural requirement for the obtaining of nonquota or preference status by reason of relationship, and the requirement to be satisfied as to relationship is the definition set forth in section 101 (b) (1). If the beneficiary satisfies that definition he is a part of the class to whom nonquota or preference status attaches as a result of the relationship. In the instant case it has been shown that the legislation was intended to fulfill humane considerations involved in keeping intact. the family unit. Based upon the wording of the statute, the beneficiary satisfies the requirement of the statute inasmuch as the beneficiary was lawfully adopted while under 14 years of age and subsequent thereto was in the legal custody of and resided with the adopting parent-mother for at least 2 years. There is a literal compliance with the law. The statute requires no more. The statute does not read as the Service would interpret it, in the legal custody of and residing with the petitioning adopting parent or parents for at least 2 years. Had Congress intended such a construction, it could have easily so provided by specific language. No such qualification is set forth in the definition and in view of the liberal Congressional intent, it is believed that no such restriction is warranted. Accordingly, the visa petition will be approved. Order: It is ordered that the visa petition be approved for nonquota status on behalf of the beneficiary. BEFORE THE CENTRAL OFFICE Discussion: The issue presented is whether the beneficiary is the child of the petitioner within the meaning of the immigration laws so as to be entitled to nonquota status. The district director concluded that the petitioner had failed to establish that he was the adoptive parent or that he had met the requirements of the law as to legal custody and residence. By order dated October 2, 1958, the Board of Immigration Appeals reversed the decision of the district director denying the petition and directed that the visa petition be approved. Section 2 of Public Law 85-316 approved September 11, 1957 (71 Stat. 639), amended the definition of the term "child" contained in section 101 (b) (1) of the Immigration and Nationality Act (8 U.S.C. 1101 (b) (1)) so that the relevant portion now provides: (b) As used in titles I and II (1) The term "child" means an unmarried person under 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. Included within the term "nonquota immigrant" as defined by section 101 (a) (27) is "(A) an immigrant who is the child or the spouse of a citizen of the United States" (emphasis supplied). The procedure for obtaining nonquota or preference quota status on behalf of an alien is outlined in section 205 of the Immigration and Nationality Act which provides in part as follows: (b) Any citizen of the United States claiming that any immigrant is his * child and that such immigrant is entitled to a nonquota immigrant status under section 101 (a) (27) (A), * * * may file a petition with the Attorney General. * (Emphasis supplied.) Citizenship of the petitioner is conceded. The beneficiary was born in China on September 24, 1947, and it is alleged both of his natural parents are deceased. Petitioner, however, claims the beneficiary as his adopted child. |