Imagini ale paginilor
PDF
ePub

consent to the adoption under Chinese law which requires that the adoption be by both spouses jointly.

Section 205 (b) referred to by the Service in its motion is simply a procedural section relating to the filing of a visa petition for anyone claiming that an immigrant is entitled to nonquota or preference status by means of such relationship, and, as has been demonstrated, the relationship of adoptive parent and child exists in this case. The definition of adopted child as set forth in section 101 (b) (1) (E) of the Immigration and Nationality Act, as amended, does not require that the child be in the legal custody and reside with the citizen or petitioning adopting parent, but states simply that the child be in the legal custody of and reside with the adopting parent or parents. If it were intended that the citizen parent must return to the foreign country to adopt a child and reside with the adopted child for 2 years, such a cumbersome requirement would have been specifically written into the immigration laws and would not be left to implication. It is far more natural and logical that the wife and not the citizen husband, who is the wage earner, be permitted to adopt a child while remaining in the foreign country while waiting for her husband to send for her than to insist upon the interpretation sought by the Service.

The Service refers to Matter of M, 5 I. & N. Dec. 120; Matter of B, 5 I. & N. Dec. 733; and Matter of S, 5 I. & N. Dec. 289, to support the argument that visa petitions have been denied where a parent-child relationship may exist under foreign law or for some purposes but have been denied where the application of the immigration laws required that result. The applicability of those cases to the present question is not clear. The first case involved a child born out of wedlock prior to the marriage of a woman to a petitioning United States citizen who was ruled not to be a stepchild within the meaning of section 101 (b) (1) (B) of the Immigration and Nationality Act. The second case, Matter of B—, supra, involved an attempted adoption at the Portuguese Consulate in New York of an illegitimate son residing in Portugal by a naturalized citizen residing in New Jersey. And this was held not to constitute a valid adoption, upon clear principles of conflicts of law. The third case, which occurred before the present amendment, simply stated that adoption by a person not the natural father of the child does not render the child legitimate and pointed out that the Immigration and Nationality Act at that time had no provision regarding adopted children.

It is unfortunate that the Service has chosen to cite Matter of M, 5 I. & N. Dec. 120, because this administrative interpretation was the subject of pointed criticism by the Committee on the Judiciary in amending section 101(b) (1) of the Immigration

and Nationality Act so as to make sure that a child in such a situation could be treated as a legitimate child and reiterated the past legislative history of the statutory language which made it clear that the underlying intent of the legislation, both past and present, was to preserve the family unit upon immigration to the United States (2 U.S. Code Congressional and Administrative News (85th Cong., 1st Sess.), pp. 2020-1). Thus, since it has been assumed that there has been a valid adoption by both parents under Chinese law, which occurred many years ago, and that the adopted child lived with and was reared by the adoptive mother and was supported by the adoptive father, there can be little doubt of the existence of a bona fide family unit which it was the purpose of the amended immigration law to preserve.

The Service next contends that the beneficiary must reside with the adopting citizen parent for 2 years before he may be considered a child under the provisions of the law and points with apprehension to possible spurious claims of children and to "widespread fraud” resulting from unfounded claims to relationship based upon periodic visits abroad by citizens resident in the United States; and refers to Senate Report No. 1515, 81st Cong., 2d Sess., April 20, 1950, pages 468, 469, as authority for the proposition that the Committee on the Judiciary expressly cautioned that it would be unwise to liberalize unduly the provisions of law pertaining to the admission of adopted children of American citizens. However, the Service is strangely silent concerning the fact that as a result of the hardship arising out of the failure to make provisions for adopted children, this 1957 amendatory legislation was enacted for the express purpose of preventing hardships in cases where the child would not otherwise be able to accompany his adoptive parents. (See Senate Report No. 1057 (85th Cong., 1st Sess.), p. 4; 2 U.S. Code Congressional and Administrative News (85th Cong., 1st Sess.) p. 2017).

The fear of fraud in those cases where documents are not available and adoption must be proved by other evidence would not be solved by the provisions urged by the Service. Let us assume that a couple had adopted a child in infancy in China and had legal custody of the child, and the child had resided with them for more than two years and thereafter the adoptive father comes to the United States and has become a citizen. It would still be necessary upon the petition filed by the citizen adoptive father that proof of relationship and of the identity of the adopted child in the absence of official records be established to the satisfaction of the American Consul and the Immigration Service and to uncover any attempted fraud.

In its preoccupation with fraud in Chinese cases, the Service has referred to the court cases of Mar Gong v. McGrannery, 109 F. Supp. 821, D.C. Cal., 1952, remanded 209 F.2d 448, and United States ex rel. Dong Wing Ott v. Shaughnessy, 220 F.2d 537, 540 (C.A. 2, 1955). The latter merely held that the requirement of a blood test as a part of the chain of evidence in establishing relationship was not a violation of due process and was justifiable where there was a lack of reliable government records of birth and parentage, difficulty of access to the area from which the claimed family groups came, and long absences from the family group of the citizen father. In reversing and remanding the Mar Gong case, the Ninth Circuit criticized the lower court judge who did not confine himself to the evidence before him but improperly gave weight to experiences in other cases involving a fraudulent pattern in arriving at findings adverse to the plaintiff in that case.

The Service refers to the employment of the alternative term in section 101 (b) (1) (E) employed in the definition relating to "adopting parent or parents" and states that in the absence of express statutory prohibition either spouse may adopt a child without the other joining, or an unmarried person may adopt a child. With this construction, we have no quarrel; but if no express statutory prohibition was required, it was unnecessary to place this phrase in the alternative unless it was intended that the custody and residence could be with the one adopting parent or with either adopting parent, if such were the case. It is believed that in interpreting this provision to mean citizen adopting parent or parents, the Service has perhaps unwittingly confused section 2 of the Act of September 11, 1957 with section 4(b) of the same act, which in relation to eligible orphans provides for orphans who have been lawfully adopted abroad by a United States citizen and spouse or who will be adopted in this country by a United States citizen and spouse. If Congress saw fit to specify in section 4(b) that the adoption be by a citizen parent, it could easily have inserted the same requirement in section 2 of the same act.

Although no objection was made at the time, the Service criticizes the Board order for commenting upon certain photographs exhibited by counsel at oral argument, which it states had never been made a part of the record file or presented to the district director before making an initial determination, and ominously refers to the use of doctored photographs to support a claimed relationship without one scintilla of evidence that the photographs in the instant case were doctored or fraudulent. The Service is, of course, fully aware that these photographs must eventually be submitted to the American Consul who must be satisfied as to relationship and identity before issuing any visa.

In short, there has been demonstrated no basis for the Service apprehension that the interpretation placed upon the amendatory legislation will enhance fraudulent claims regarding adopted children. Congress was not primarily involved with the question of fraud, which must be uncovered by investigation conducted by the American Consulate abroad and by the Immigration Service just as any other claim of relationship where there is an absence of governmental records of birth, parentage, or, as in the present case, of adoption. Congress was greatly interested, however, in seeing that bona fide family units including adopted children were not separated and were permitted to come to this country. It did put certain limitations on adopted children for the purpose of preventing adoptions which were entered into merely for the purpose of permitting advantage to be taken of the immigration laws and for this reason inserted the requirement of two years' residence and legal custody. However, once it has been shown that these requirements have been met, and that there had existed for the required period a bona fide family unit, the beneficiary should thereafter be admitted to this country if it is established that he is the adopted child of the petitioner. The spectre of fraud drawn by the Service should not be permitted to defeat the intent of Congress in enacting this amendatory legislation for the purpose of providing for a more generous treatment of children in keeping with the concern of Congress with the problem of keeping families of United States citizens and of immigrants united. It is believed that no change should be made in our order of October 2, 1958.

Order: In accordance with the provisions of 8 CFR 6.1(h) (1) (iii) the case is referred to the Attorney General in accordance with the request of the Acting Assistant Commissioner.

BEFORE THE ATTORNEY GENERAL
(April 27, 1959)

Order: The order of the Board of Immigration Appeals, dated October 2, 1958, approving a petition for nonquota immigration status under section 205 (b) of the Immigration and Nationality Act in this case, is disapproved and the order of February 12, 1958, denying the petition, is reinstated for the reasons herein stated.

This case is before me pursuant to the provisions of 8 CFR 3.1 (h) (1) (iii) for review of the decision by the Board of Immigration Appeals.

The record establishes that the petitioner is a citizen of the United States by naturalization, the parent of a son, almost 12 years of age, who was legally adopted by the petitioner's wife in China with his consent, when the child was less than 3 months old.

The record further establishes that the child has been in the custody of and has resided with the petitioner's wife in China since his adoption in 1947, except for the separation caused when she joined her husband to take up her residence in the United States during 1957. The adoptive father now desires to bring the child to the United States to make his home.

Section 2 of the Act of September 11, 1957 (Public Law 85-316) extends immigration privileges to "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***." These provisions are remedial in nature and were enacted by Congress to reunite an adopted child with his parents where a bona fide family relationship has been interrupted. Consistent with this Congressional purpose, I interpret the provisions of the law to require that the 2-year legal custody and residence of the adopted child be had with both the adoptive parents where 2 exist or with one when the family unit consists of only one adoptive parent. In other words, it is restoration of a bona fide family relationship which is the Congressional objective. Since the child in this case has not resided with his adoptive father, the petitioner herein, for the required 2 years, the petition must be denied.

« ÎnapoiContinuă »