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cepting his or her legitimate children. If a husband and wife wish to adopt his or her child born out of wedlock in order to give the child the status of a child born during the marriage, a joint adoption (mentioned in Article 876] by the husband and wife is necessary.

Neither the Civil Code nor the Family Registration Law deals with the question of whether and under what circumstances the registration of the child by an individual as his child and that of his wife constitutes such an adoption. In the absence of specific provisions, the following statement made by Professor Kim regarding notification of an adoption in general is perhaps pertinent: An adoption becomes effective by giving notification thereof in accordance with the form prescribed by the Family Registration Law (signed by both parties and two witnesses). Without the procedural requirement of the registration, there would be no legally valid adoption, even though the parties have agreed to effect an adoption or they have lived together as parent and child. The intention of adoption should be shown on the part of the two parties when the registration is completed and filed. With respect to the case where the father gives false notification to the Family Registrar, stating his natural child born out of wedlock is his child and that of his wife, Professor Chong Kwang-hyon is of the opinion that in a strict sense, such notification is not valid although its validity may not be seriously questioned. However, it should be given the effect of recognition because the intention of the father to recognize the child is manifested through the said notification. This is called "quasi-recognition" and "conversion of a void act" set forth in Article 138 of the Civil Code.

According to the information furnished by the Library of Congress, the beneficiary was registered on October 4, 1961 in the Korean Family Register and the new 1960 Law is applicable to the case. Under the new Civil Code of 1960 there are no express provisions concerning whether it is permissible for an individual to adopt his or her child born out of wedlock. In the absence of any specific provisions, it may be construed that such an adoption is not prohibited, according to Korean authorities. The adoption must be a joint adoption by the husband and wife, such as occurred in this case. Where the father gives false notification to the Family Registrar stating his child born out of wedlock was his child and that of his wife, its validity may not be seriously questioned and it should be given the effect of recognition because the intention of the father to recognize the child is manifested

through the said notification. Accordingly, it would appear that under the facts of this case, there has been effected an adoption such as would be sufficient to give the beneficiary the status of an adopted child for immigration purposes, inasmuch as the beneficiary was adopted while under the age of 14 years as required by the immigration laws. The visa petition will be approved.

ORDER: It is ordered that the visa petition be approved for immediate relative status.

ADDENDUM

III. Adoption of a Child Born out of Wedlock by its Parent.

Under the old Korean law, it was not permissible for an individual to adopt his or her child born out of wedlock. Such an adoption was held to be contrary to Korean customary law by the High Court, the court of last resort, during the Japanese occupation.

Under the new Civil Code of 1960, there are no express provisions covering this subject. In the absence of any specific provisions, it may be construed that such an adoption is not prohibited.3

Regarding this question, Mr. Mun Chong-song, however, refers to Article 877 of the Civil Code and interprets it as follows:

Under this provision (concerning the prohibition of the adoption of a lineal ascendant or older person) ... a person may adopt a nephew or niece, the child of a first cousin, a younger brother or sister ... or even persons towards whom he or she actually stands in parental relationship, i.e., a step-child, a recognized child or a child born out of wedlock, excepting his or her legitimate children ...4

Professor Kim Chu-su elaborates this subject further stating that “if husband and wife wish to adopt his or her child born out of wedlock in order to give the child the status of a child born during the marriage, a joint adoption by the husband and wife [mentioned in Article 876] is necessary." 5

1 Kim Chu-su, Sin Ch'inzok sangsokpěp [New Law of Relatives and Succession], Seoul, Popmunsa, 1964, p. 204.

2 Judgment of October 4, 1931. See Kôkichi Nagumo, Genkô Chốsen shinzoku 8ôzokuhô ruishû [Present Korean Law of Relatives and Succession], Seoul, Osakayagô Shoten, 1936, p. 213.

3 Kim, Chu-su, Sim Chimcok samgsckpop, p. 213.

4 Mun Chong-song, Sin Mimpop tongnan (Commentary on the New Civil Code), Seoul, Popchồngsa, 1960, p. 630.

5 Kim, Chu-su, “Ipyang singo,” [Notification of Adoption], Sapöp haengjöng, Vol. 5, No. 8 (1964), p. 80.

However, he distinguishes the adoption of the husband's child born out of wedlock from that of the wife's child born out of wedlock:

In the former case, an adoption seems to be difficult because an objection on the part of the future legitimate mother (the lawful wife of the father of a natural child) who will become the adoptive mother is anticipated. However, if the future legitimate mother agrees to effect such an adoption or she is no longer alive, the said adoption would be effected without too much difficulty. In the latter case, no objection to an adoption is likely to occur, because the natural mother who also becomes the adoptive mother has no conflicting interests. The child's mother who is a party to an adoption can agree to effect an adoption in the capacity of the adoptive mother and also can consent to it as the natural mother in behalf of a minor child.6

Neither the Civil Code nor the Family Registration Law deals with the question of whether and under what circumstances the registration of the child by an individual as his child and that of his wife constitutes such an adoption. In the absence of specific provisions, the following statement made by Professor Kim regarding notification of an adoption in general is perhaps pertinent:

An adoption becomes effective by giving notification thereof in accordance with the form prescribed by the Family Registration Law (signed by both parties and two witnesses). Without the procedural requirement of the registration, there would be no legally valid adoption even though the parties have agreed to effect an adoption or they have lived together as the parent and child. The intention of adoption should be shown on the part of the two parties when the registration is completed and filed. If one of the parties withdraws the intention after signing the registration, the Family Registrar has the duty to reject such registration [Article 881]. However, the Family Registrar is only empowered to review the documents presented before him, not to check the existence of actual intentions of both parties to an adoption.?

With respect to the case where the father gives false notification to the Family Registrar stating his natural child born out of wedlock as his child and that of his wife, Professor Chong Kwang-hyon is of the opinion that:

In Korea there are many cases in which the father gives false notification to the Family Registrar stating his child born out of wedlock as his child and that of his wife. In a strict sense, such notification is not valid although its validity may not be seriously questioned. However, it should be given the effect of recognition because the intention of the father to recognize the child is manifested through the said notification. This is called "quasi-recog

6 Ibid. With regard to the latter instance, see also Ch'oesin hojók silmu ch'ongnan (New Manual of Family Registration), Seoul, Han'guk Sapop Haengjong Hakhoe, 1964, pp. 360–361.

1 Kim Chu-su, “Ipyang singo,” p. 79.

nition” and “conversion of a void act” set forth in Article 138 of the Civil Code.8

Prepared by: Dr. Sung Yoon Cho

Far Eastern Law Division
Law Library
Library of Congress

8 Chong Kwang-hyon, Sinch’inzok sangsokpop yoron (New Law of Relatives and Succession), Seoul, Isong Munhwasa, 1958, p. 207. See also Kwon Il, Kankoku shinzoku sôzoku [Korean Law of Relatives and Succession), Tokyo, Kôbundâ, 1961, p. 113; and Pomnyurhak sajon, [Legal Dictionary], Seoul, Popmunsa, 1964, pp. 721-722.

MATTER OF VIZCARRA-DELGADILLO

In Deportation Proceedings

A-14699637

Decided by Board November 6, 1968

Deportation proceedings may be terminated as “improvidently begun” even

after the deportation hearing has proceeded to a final conclusion and a deportation order has been entered; hence, the special inquiry officer, upon motion of the District Director, did not lack authority to terminate depor

tation proceedings. CHARGE:

Lodged: Act of 1952—Section 241 (a) (5), [8 U.S.C. 1251 (a) (5)]-Convic

tion under 18 U.S.C. 1546.

ON BEHALF OF RESPONDENT:

Phelan, Simmons & Ungar
517 Washington Street
San Francisco, California 94111
(Letter memorandum filed,
concurring in appeal)

ON BEHALF OF SERVICE:

Irving A. Appleman Appellate Trial Attorney (Oral argument waived)

This is an appeal by the District Director of the Immigration and Naturalization Service from an order of the special inquiry officer denying the Service's unopposed motion to terminate the deportation proceedings.

The record before us reflects the following undisputed facts: The respondent is an alien, a native and citizen of Mexico, who was admitted to the United States for permanent residence on September 18, 1965. On August 9, 1966, in the United States District Court for the Northern District of California, he was convicted on his plea of guilty to a charge of aiding and abetting the alteration and possession of a false immigration document, in violation of 18 U.S.C. 1546 and 2. Deportation proceedings were started against respondent, charging that because of his conviction he was deportable under section 241 (a) (5) of the Act. At a hearing on October 13, 1966, respondent through counsel conceded his deportability as charged and a deportation order was

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