LEE
The case comes forward on appeal from the decision of the District Director, Los Angeles District, dated September 19, 1966 denying the visa petition for the reason that the petitioner has failed to establish that the required relationship of parent and child exists between her and the beneficiary.
The petitioner, a native of China, a citizen of the United States by naturalization on August 19, 1964, 54 years old, female, seeks immediate relative status on behalf of the beneficiary as her adopted son. The beneficiary was born April 1947 in Ying Ping, Kwang Tung, China and is stated to be divorced.
A sworn statement was taken from the petitioner on August 24, 1966. She testified the beneficiary was adopted by her in Tong On Ley village, Tong Foo Tung Heung, Yun Ping, K.T., China on April 22, 1947 (CR-36-3-2) when he was only a few weeks old. He resided with her until September 10, 1948 when she left her village to live in Hong Kong. Thereafter, the beneficiary resided with the petitioner‘s mother in her native village from September 10, 1948 until January 9, 1966. The petitioner visited her mother and the beneficiary three or four times during the period September 10, 1948 to January 20, 1949 while she lived in Hong Kong. She departed from China en route to the United States on January 20, 1949 and arrived on the SS “President Wilson” at San Francisco, California on March 21 or March 28, 1949. She last saw the beneficiary for 11 or 12 days in January 1966 when she visited Hong Kong.
Originally as enacted, section 101(b)(1) of the Immigration and Nationality Act included in the term “child” (A) a legitimate child, (B) a stepchild and (C) a legitimated child. Subsection (E) of
The amendatory legislation of the Act of September 11, 1957, which extended the meaning of the term child to include an adopted child (and also an illegitimate child through its natural mother) was designed as remedial legislation to ameliorate the harshness and inequity of certain situations where there existed bona fide family units. Safeguards were written into the law to prevent abuses such as adoptions entered into for the purpose of evading the immigration
Thus, while the legal custody and residence requirements of section 101(b)(1)(E) have been liberally interpreted in recognition of the fact that the amendment constitutes remedial legislation, certain requirements are still retained. Thus, the child must be adopted under the age of 14 years to constitute a valid adoption under the immigration laws. The statute requires two years’ legal custody subsequent to the adoption. The two-year residence requirement is one of the conditions of a valid immigration adoption, and while we have interpreted this requirement to include a child who resided with the adopting parents for the two-year period prior to the formal adoption, and also with but one of the adopting parents, the statutory requirement of two years’ residence is a mandatory part of
In the instant case, under the most generous computation, the adoptive child resided with the adoptive parent for about one year and nine months. The term “residence” is defined in section 101(a)(33) to mean the principal actual dwelling place in fact, without regard to intent. The period of residence here does not satisfy the requirement of two years’ residence with the adoptive parent. We take notice of the brief filed by counsel. However, we hold that the bona fide family unit is not the only requirement of section 101(b)(1) of the Immigration and Nationality Act but there must be an adoption in conformity with the requirements of
ORDER: It is ordered that the appeal be and the same is hereby dismissed.