LUM
Decided by Board October 19, and December 31, 1964
Petition of an adult naturalized United States citizen, who was adopted in China during infancy, is approved to accord her natural mother preference quota classification under
BEFORE THE BOARD
Petitioner, a native of China and a naturalized citizen of this country, seeks second preference quota status for her natural mother. The District Director has revoked the visa petition which petitioner filed for that purpose.
A short time after petitioner‘s birth a family that lived near her village in China adopted her because her mother was ill. The Service approved the petition with knowledge of petitioner‘s adoptive status. An immigration officer, who interviewed petitioner preliminarily to the revocation of the petition, said that the approval was erroneous.
The District Director‘s decision rests upon his conclusion that the Immigration and Nationality Act provides that the natural parents of an adopted child shall (by virtue of such parentage) be accorded no rights, privileges, or status under the Act. We think his statement inaccurately reflects the statutory provision. Our reasoning agrees substantially with petitioner‘s brief in support of her appeal.
The pertinent portion of the statute reads:1
As used in titles I and II—The term “child” means an unmarried person under twenty-one years of age who is—
*
*
*
*
*
*
*
(E) 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: Provided, That no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.
*
*
*
*
*
*
*
Manifestly, the inclusion of an adopted child in the definition of the term “child” seeks to provide some immigration benefit for the child through his relationship to his adoptive parent or parents. The immediate purpose is to enable an adopted child, who meets the section‘s conditions and who otherwise could not immigrate because of quota restrictions, to accompany his adoptive parent or parents to this country, or to join such parent or parents here. Reading the section as a whole, instead of considering only the language of subparagraph (E), makes clear the section‘s intended scope.
In referring to “such adopted child” the proviso obviously means an adopted child who under the terms of the section is eligible for—or has obtained—an immigration benefit. The effect which the District Director gives to the proviso overlooks the significance of the word “such.” If, as his decision holds, the statute precludes the natural parent of any adopted child from obtaining by reason of blood relationship to that child any right, privilege, or status under the Act, the proviso should omit the word “such” and read:
Provided, That no natural parent of any adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.
Thus, both the section as a whole and the proviso refer to an adopted child in relation to eligibility through adoption for some immigration benefit, rather than either adopted children in general, or, specifically, children who have been adopted while under the age of 14, have thereafter been in the legal custody of, and resided with, the adoptive parent or parents for two years or more, but who have received no immigration benefit thereby.
Petitioner came to this country not as an adopted child but as the wife of a United States citizen. She is now 48 years old. Her counsel says her adoptive father died in China about 1951 and her
In Matter of B—, 9 I. & N. Dec. 46,2 cited by petitioner‘s counsel, we held that an adopted child who as a matter of law could not obtain through the adoption any immigration right, privilege, or status could confer second preference quota status upon her natural parents.3 Here, petitioner did not obtain any immigration right, privilege, or status through her adoption and as a matter of fact could not now obtain any immigration benefit from that status. We see no appreciable difference in the two situations.
We consider the proviso in subparagraph (E) of the definition of the term “child” for purposes of titles I and II of the Act is inapplicable when an adopted child has received no immigration benefit from his adoptive status and as a matter of either law or fact is in no position to claim such benefit. Therefore, we hold that petitioner‘s adoption is immaterial here and does not affect beneficiary‘s eligibility for classification as a second preference quota immigrant based upon her alleged blood relationship to petitioner.4 We shall sustain the appeal.
ORDER: It is ordered that the District Director‘s decision revoking the petition to classify status of alien relative for issuance of immigration visa filed by petitioner for her natural mother be reversed and that the petition stand as approved.
BEFORE THE BOARD
The Service moves for reconsideration of our order of October 19, 1964, which reversed the District Director‘s decision revoking approval of the visa petition filed in behalf of petitioner‘s mother. Counsel for the Service contends
The Service‘s counsel‘s concern with the statutory prohibition has led him into the same error which the District Director committed—interpreting the statute mechanically and unrealistically. What we said in our previous order about the scope of
We believe the following hypothetical situations point up that inapplicability. In each we assume the factual situation here, as set forth in our previous order, except that we vary the facts with respect to the adoption. We also assume that the adoption in each case is valid under Chinese law and that the adoptive parents are deceased.
Case A. Petitioner was adopted when over the age of 14 years.5
Case B. Petitioner was adopted when under the age of 14 years but following the adoption resided with them for less than two years.
Case C. Petitioner, as here, was adopted when under the age of 14 years and following the adoption was in the legal custody of the adopting parents, and resided with them for two years or more.
Apparently, the Service would approve petitions for petitioner‘s natural mother in Cases A and B but deny such a petition in Case C. In the circumstances we have assumed, however, we discern no special magic in the fact that the situation in Case C happens to fit the language which immediately precedes the proviso in
In the proviso, Congress particularized the natural parent in the same manner. The proviso does not preclude a petition by any adopted person for a natural parent. It precludes such a petition only if the petitioner has obtained a benefit under the immigration laws, or may obtain some benefit under those laws, by reason of his adopted status. Such person must, of course, qualify under the language preceding the proviso in order to be eligible for the benefit. We consider, however, the language of the proviso also loses its force where the adopted person, even though mechanically qualifying under the definition, has never used, and never could use, his qualifications for immigration purposes. Thus, looking at the statutory provision as a whole, petitioner‘s adoption under circumstances
In addition to applying
Assuming that petitioner was legally adopted, the circumstances of her adoption merely coincide mechanically with the conditions imposed by the definition. Moreover, the criterion here is not that the adopted person has not at the time of petitioning already obtained a benefit under the immigration laws. Our decision contemplates that petitioner not only has not gained a benefit under the immigration laws through her adoption but could not now or ever obtain such a benefit. Both conditions must be present.
We believe the foregoing statement disposes of the Service‘s contention that our holding permits an adopted child to have greater rights than a natural child in that the adopted child could petition for two sets of parents and two sets of brothers and sisters. We need not discuss the Service‘s suggestion that petitioner might be considered to make an election in favor of the natural parent although the motion urges that an adopted person should not have an election. There is no election here. Beneficiary is the only mother petitioner now has. The possibility that petitioner might someday be in a position to petition for her adoptive mother is so remote that it can have no part in any realistic appraisal of the situation.
The motion suggests that our original decision should have been based upon the failure of the record to show petitioner has been legally adopted under Chinese law and urges that we remand the case for further evidence on this point. The petition was initially approved on October 15, 1962. Beneficiary is now over 74 years old. Although we noted in our original decision that the record did not properly develop petitioner‘s adoptive status, we were not disposed to remand the case to overcome deficiencies we considered to be immaterial. If anything, we are less disposed to do so now.
Finally, the Service declares that our order of October 19, 1964 departs from our other decisions relating to
The motion also cites Matter of Martinelli, unpublished.4 There, we first approved a petition by a mother for her natural daughter, who had been adopted in Italy at the age of 17. We noted that beneficiary was over 14 years of age when adopted but preferred to rest our decision upon the failure of any immigration status or benefit to result from the adoption. The Service moved for reconsideration of our order. On reconsideration we found to be appropriate adoption of the doctrine of Matter of B—, which had been decided subsequent to our original order in Martinelli and just a few days before the Service‘s motion. Therefore, we concluded that the petition should be approved on the basis of petitioner‘s daughter‘s age at the time of adoption. Our final action in Martinelli, did not necessarily repudiate the previous basis for our decision. As in Matter of B—, we simply used another, and perhaps then more convenient, basis for decision.
In the present motion, counsel for the Service attributes to Matter of B—, the rule that the determining factor is whether the child comes within the statutory definition of an adopted child. Although we do not find this specific language in either B— or Martinelli, we believe it may be a fair statement of the rule, but only if properly understood. For example, as we have emphasized, we consider petitioner here does not “come within” the statutory definition of an adopted child.
In Matter of K—, discussed also in the Service‘s motion, we held that, because of the provisions of
Matter of S—, in which petitioner had been adopted at 13 years of age and was petitioning for his natural parents, must also be read in the light of our ruling here.6 The statement from Matter of S— quoted in the Service‘s motion—to the effect that the adoption changed, for immigration purposes, petitioner‘s preadoption relationship to his natural parents applies in many, if not most situations, but not in all.
None of the decisions which we have discussed squarely meet the question of the applicability of
Although we answered the Service‘s motion when we pointed out the inapplicability here of the statutory definition of an adopted child, we have discussed it at some length in an attempt to overcome much apparent confusion concerning the effect of the definition. Upon cursory reading, the provision appears to support the Service‘s position. The District Director—as well, apparently, as the consular officer who returned the approved petition to the Service for consideration under the definition—labored under the same misapprehension as the Service‘s counsel here. We have not previously had occasion to consider the precise situation now before us. As a result, some of the language of our prior opinions has not served to dispel confusion of thought in this area.
We affirm our order of October 19, 1964. Matter of B—, supra, laid down the rule that an adopted child who could not benefit by the adoption under the immigration laws because not within the definition of an adopted child under
ORDER: It is ordered that the Service‘s motion be, and hereby is, denied.