Matter of Cariaga, Interim Decision Number 2507
| Decision Date | 22 July 1976 |
| Docket Number | Interim Decision Number 2507,A-20950365 |
| Citation | 15 I&N Dec. 716 |
| Parties | MATTER OF CARIAGA In Visa Petition Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
(1) Petitioner, the United States citizen adoptive father of beneficiary, filed petition to accord beneficiary, who was born in 1956, the status of an immediate relative under section 201(b) of the Immigration and Nationality Act. Beneficiary's natural father had executed an affidavit giving his consent to the adoption of his son on April 8, 1963. However, the actual adoption did not take place until October 20, 1975, when beneficiary was 19 years of age by a decree made retroactive to April 8, 1963, by the issuing court.
(2) Section 101(b)(1)(E) of the Act respecting adoption of children for immigration purposes is to be construed strictly. In order for an adoption to be valid for immigration purposes, the act of adoption must occur before the child attains the age of fourteen.
(3) Where the adoption did not take place until the beneficiary reached 19 years of age, the adoption was not valid for immigration purposes notwithstanding the retroactive effect given the adoption decree by the issuing court, and the visa petition to accord the beneficiary immediate relative classification was denied.
ON BEHALF OF PETITIONER: Roman de la Campa, Esquire 2219 Allan Street Sioux City, Iowa 51103
The United States citizen petitioner applied for immediate relative status for the beneficiary as his adopted child under section 201(b) of the Immigration and Nationality Act. In a decision dated February 3, 1976, the district director denied the petition. The petitioner has appealed. The appeal will be dismissed.
The beneficiary is a twenty-year old native and citizen of Mexico. It appears that in 1958, at two years of age, he was brought from Mexico to the United States by his father. It also appears that at that time, he went to live with the petitioner and his wife and has remained since.
On April 8, 1963, a year before his death, the beneficiary's father executed an affidavit giving his consent to the adoption of his son by the petitioner. According to the petitioner, he did not adopt the beneficiary at that time because of advice he was given by an attorney in Idaho. The attorney told him that since the beneficiary's mother could not be located and her consent secured, the beneficiary could not be adopted until he reached eighteen. At that age, the beneficiary's own consent to the adoption would be sufficient. As a result of this advice, efforts to proceed with the adoption were abandoned until 1975.
The record contains a Decree of Adoption issued by the District Court of the State of Iowa in and for Woodbury County on October 30, 1975 in which the beneficiary, at the age of nineteen, is declared adopted by the petitioner and his wife, retroactive to April 8, 1963. The decree also recites the fact that the beneficiary's father gave his consent to the adoption on April 8, 1963 and that the child has lived with his adopting parents from the time the consent was given.
The issue raised is whether the retroactive effect which the Iowa Court has given the adoption should be considered by this...
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