his other two children, assumed that they had perished. The Japanese soon therafter occupied the village in China where Lee Ming Sam was staying with the beneficiary. In 1943, Lee Ming Sam, out of concern for the upbringing of the beneficiary, and upon the advice of his mother, purportedly married Sao Kin Louie, the petitioner in this case. Sao Kin Louie then went through a "ceremony," dinner party and public announcement to Lee Ming Sam's clansmen, which allegedly constituted an adoption of the beneficiary. Shortly thereafter communication with Indonesia was reestablished, and it was learned that Lam Tjon Ho and the other children were alive. The petitioner claims that Lam Tjon Ho wrote to her in 1943 and assented to Lee Ming Sam's marriage to the petitioner, and also to the "adoption" of the beneficiary. No independent evidence was presented to prove this allegation. All that the file contains in this regard are letters from Lam Tjon Ho to the petitioner, written in 1958, 1959 and 1960, containing Lam Tjon Ho's consent to the "adoption" which took place over fifteen years earlier in China. Lee Ming Sam took the beneficiary back to Indonesia with him in 1946, leaving the petitioner in China. The beneficiary lived with his father and natural mother in Indonesia from 1946 until 1956. He then went to Taiwan. The petitioner left China and went to Hong Kong in 1954, where she stayed until 1967, when she was admitted to the United States as an immigrant. The beneficiary joined the petitioner in Hong Kong in 1959, and stayed with her until 1967. The petitioner apparently supported the beneficiary while he was attending school in Taiwan, "with funds received from my husband in Indonesia." Section 203 (a) (2) provides for visa preference for qualified immigrants who are the unmarried sons or daughters of aliens admitted for permanent residence. There is no definition of "son" or "daughter" in the Immigration and Nationality Act, but "child" is defined in section 101 (b) (1) (E) to include 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. We have previously held that a child adopted in compliance with section 101 (b) (1) (E) of the Act qualified as a "son" or "daughter" for purposes of receiving preference status, Matter of Jue, 12 I. & N. Dec. 296 (BIA, 1967); Matter of Yue, 12 I. & N. Dec. 747 (BIA, 1968). The issue in this case is whether there was a valid adoption which also meets the requirements set forth in section 101 (b) (1) (E) of the Immigration and Nationality Act. To deter mine the validity of the adoption, we must look to the applicable adoption law. Inasmuch as we are concerned with an adoption which was supposed to have been accomplished in China in 1943, the provisions of the Civil Code of the Republic of China are controlling. Article 1073 of the Civil Code required that the adopter be at least twenty years older than the person to be adopted. In the present case the petitioner, born in 1926, is only five years older than the beneficiary. In a prior precedent decision, this Board recognized an adoption as valid for immigration purposes where there are only a sixteen-year age difference, Matter of Chan, 12 I. & N. Dec. 513 (BIA, 1967). We held that such an adoption was not automatically void, but only voidable. We need not decide whether we will extend the Chan rule to the present case, because there are even more fundamental defects in the claimed adoption. Article 1079 required that the adoption be in writing, unless the person adopted had been brought up as a child of the adopter since infancy. Infancy has been construed by the Supreme Court of China to refer to that period of time during which a child is under the age of seven years, Matter of Lau, 10 I. & N. Dec. 597 (BIA, 1964). In the present case the beneficiary was eight years old when the purported adoption took place. This could not have been an infancy adoption, and there was no written adoption agreement. Article 1080 of the Code provided for the mutual termination of the adoptive relationship. The fact that the beneficiary went back to Indonesia in 1946 to live with his natural mother until 1956 raises the possibility that the relationship may have been terminated. The petitioner has failed to offer sufficient evidence to explain away the doubt raised as to the continuing effect of the "adoption." The District Director was correct in holding that the petitioner has not borne the burden of establishing the beneficiary is an adopted child as defined in section 101 (b) (1) (E) of the Immigration and Nationality Act. Since he is not an adopted child for immigration purposes, the beneficiary is not eligible for preference status under section 203 (a) (2) of the Act. The appeal will be dismissed. ORDER: The appeal is dismissed. MATTER OF PENDON In Exclusion Proceedings A-17230529 Decided by Board October 21, 1971 Applicant's motion to reopen the exclusion proceedings to permit her to apply for the benefits of section 241 (f) of the Immigration and Nationality Act, as amended, based on the birth of a United States citizen child, is denied since the birth of a citizen child confers no benefits under section 241(f) of the Act upon an alien in exclusion proceedings. EXCLUDABLE: ACT of 1952-Section 212(a)(20) [8 U.S.C. 1182(a)(20)]— Immigrant without visa. ON BEHALF OF APPLICANT: Lloyd A. Tasoff, Esquire 408 South Spring Street Los Angeles, California 90013 On December 5, 1969 we dismissed a joint appeal filed by the applicant, her husband, her sister, and her infant child, all aliens, from an order of a special inquiry officer excluding them from admission to the United States. The unopposed motion before us, filed by the above-named applicant alone, requests reopening in order that she may present evidence that on December 20, 1969, she gave birth to a child who is a United States citizen. She asserts that as the mother of a citizen child, she is within the purview of section 241 (f) of the Immigration and Nationality Act and is saved from exclusion and deportation thereby. She also alleges that she is the beneficiary of a visa petition filed April 1, 1968, which should now be considered under the third preference, under which visas are now available to aliens who filed on or before November 16, 1968. The motion is unsupported, contrary to the requirements of 8 CFR 3.2 and 3.8, and could be denied for that reason alone. However, even assuming the truth of the allegations now set forth, no case for reopening is made out. The motion will be denied. Section 241 (f) in terms renders inapplicable to qualified aliens the "provisions of this section," i.e., section 241 of the Act. That section prescribes the grounds on which aliens "in the United States" may be ordered deported. The procedure for determining the deportability of aliens within the United States is set forth in section 242 of the Act. The applicant in this case is not an alien in the United States who is the subject of deportation proceedings under sections 241 and 242. She is a paroled alien applicant for admission whose exclusion has been ordered under entirely different provisions of the Act. The distinction between the excludable and deportable classes of aliens has been clearly stated in Leng May Ma v. Barber, 357 U.S. 185 (1958), and need not be belabored here. The birth of a citizen child confers no benefits under section 241 (f) upon an alien in exclusion proceedings. Insofar as concerns the claimed availability of an immigrant visa, even if that were the fact it would not warrant reopening the exclusion proceedings. As we pointed out in our order dated December 5, 1969, neither this Board nor a special inquiry officer has power to adjudicate in exclusion proceedings a paroled alien's application for adjustment under section 245 of the Act. One further item should be noted. The Service has informed us that on August 16, 1971, after the pending motion was filed, the applicant filed a petition in the United States Court of Appeals for the Ninth Circuit for review of our December 5, 1969 order. While the Service does not oppose the motion now pending before us, we see no point to granting the motion, for the reasons above-stated. Were we to grant the motion, we would of course. condition our order on the approval of the court in which the petition for review is pending. Since denial of the motion cannot in any way affect the court's jurisdiction, no such conditional order is called for. ORDER: The motion is denied. MATTER OF SAGASTI In Deportation Proceedings A-19878199 Decided by Board October 20, 1971 Notification to an alien ordered deported of the right to apply for withholding of deportation pursuant to section 243 (h) of the Immigration and Nationality Act, as amended, is required under 8 CFR 242.17 (c) only with respect to the country or countries "specified" by the special inquiry officer; notification of such right is not compelled under 8 CFR 242.17 (c) with respect to the country "designated" by the alien. CHARGE: Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a) (2)]—Nonimmigrant visitor-remained longer. ON BEHALF OF RESPONDENT: Otto F. Swanson, Esquire This is an appeal from an order of a special inquiry officer dated August 20, 1971, denying respondent's motion to reopen the proceedings. A stay of deportation is no longer a matter of right on such an appeal, 8 CFR 3.6, as amended, 36 F.R. 316 (January 9, 1971). On September 2, 1971, we denied counsel's request for such a stay pending receipt of the record and adjudication of the appeal. The record on appeal has now been received. The appeal will be dismissed. The respondent is a 47-year-old married male, a native and citizen of Spain, who was admitted to the United States as a nonimmigrant visitor on or about October 26, 1968 and has remained longer than permitted. At a joint deportation hearing with his wife before a special inquiry officer on January 13, 1971, at which they waived counsel, respondent and his wife admitted the 1 His wife, Sylvia Alvarez de Sagasti, subject of Service file A-20003925, is not a party to this appeal. The record reflects that she is a native and citizen of Chile. |