CHIN
The United States citizen petitioner applied for preference status for the beneficiary as his adopted married son under
The beneficiary is a married male who was born in China on January 9, 1928. He was purportedly adopted on March 15, 1931. Counsel urges that the validity of the adoption be gauged by the
At the time he made his decision to revoke, the District Director was not incorrect in citing the Yiu case as authority. However, since we rendered our decision in the Yiu case, we have had occasion to reconsider the principles enunciated therein. As a result, in Matter of Ng, Interim Decision No. 2147 (BIA, April 28, 1972), we receded from our ruling in Yiu. That case, therefore, no longer serves as a bar to the approval of the present petition.
In Matter of Kwok, Interim Decision No. 2145 (BIA, April 25, 1972), we rejected the Service‘s argument that Chinese adoptions even though valid undеr the law of the place where the adoption status was created nevertheless do not constitute “adoptions” for immigration purрoses if not created as a result of a “juridical act.” Shortly thereafter we receded from two precedent decisions that had sеrved as legal obstacles to the acceptance of many Chinese adoptions. In Matter of Ng, supra, we receded from our decision in Matter of Yiu, supra, and returned to our earlier position as expressed in Matter of Yue, 12 I. & N. Dec. 747 (BIA, 1968). In the Yue case we had recognized the validity of both (1) the adoption of females and (2) the adoption of males even though not related by birth, not of the same clan and not with the same surnamе. In Matter of Yee, Interim Decision No. 2146 (BIA, April 28, 1972), we receded from our earlier decision in a case involving a Chinese with the same family name, Matter of Yee, 13 I. & N. Dec. 620 (BIA, 1970). The first Yee case had ruled out the possibility of reсognizing an adoption occurring in the People‘s Republic of China as valid for immigration purposes.
Even though the legal impediments to the rеcognition of Chinese adoptions have been removed, each petition based upon an adoptive relationship still must be cоnsidered from a factual point of view. In visa petition proceedings the burden of proof to establish eligibility for the benefit sought under the immigration laws rests with the petitioner, Matter of Brantigan, 11 I. & N. Dec. 493 (BIA, 1966). An application for preference classification must be accompanied by evidence of thе family relationship,
In any case where an adoption is claimed to have taken place it goes without saying that the identity of the parties must be
Inasmuch as many Chinese adoption cases are not grounded upon a formal decree of adoption, it is necessary to determine the validity of the claimed adoption by means of a careful weighing of the evidentiary material submitted. Certified copies of affidavits, photographs, evidence of support, letters and other documents bearing upon thе issue of the validity of the adoption exhibited by the petitioner should be made part of the record. Affidavits submitted should (1) state the nature of the аffiant‘s relationship, if any, to the parties, (2) set forth the basis of the affiant‘s knowledge, and (3) contain a statement of the facts the affiant knows regarding the adoption, rather than mere conclusory statements as to the existence of an adoption. Information contained in an affidavit should not be disregarded simply because it appears to be hearsay. In administrative proceedings that fact merely affeсts the weight to be afforded such evidence. In addition, there is an exception to the hearsay rule on behalf of statements as to pеdigree and family history made by (1) relatives or (2) members of the same community. Along the same line, affidavits executed by counsel would have little, if any, рrobative value. Photographs should be positively identified and verified under oath.
The affidavits and photographs contained in the file before us appear to be unobjectionable. We shall remand this matter to the District Director, however, so that petitioner will be afforded an opportunity to explain the discrepancies noted above and to establish that there was, in fact, a valid adoption of thе beneficiary, and so that a new order can then be entered by the District Director.
ORDER: The case is remanded to the District Director for further proceedings consistent with the foregoing decision.