Matter of Ho
| Citation | 19 I&N Dec. 582 |
| Decision Date | 17 March 1988 |
| Docket Number | Interim Decision Number 3051,A-24247019. |
| Parties | MATTER OF HO. In Visa Petition Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated May 23, 1985, the district director revoked his prior approval of the visa petition which the petitioner had filed to accord the beneficiary preference status as his unmarried son pursuant to section 203(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1153(a)(1) (1982). The petitioner appealed from that decision and oral argument in the case was heard by the Board on June 4, 1986. The appeal will be dismissed.
The petitioner, a 55-year-old native of the People's Republic of China ("PRC") and citizen of the United States, immigrated to this country with his wife and five biological children on September 19, 1968. The petitioner claims that he and his wife adopted the beneficiary in the PRC in 1966 when the beneficiary was 7 years old.
In order to qualify as a "son" for the purpose of obtaining preference status under the immigration laws, the beneficiary must once have qualified as a "child" of the petitioner as that term is defined by section 101(b)(1) of the Act, 8 U.S.C. § 1101(b)(1) (1982); Matter of Coker, 14 I&N Dec. 521 (BIA 1974). Section 101(b)(1)(E) of the Act includes within the definition of the term "child" an adopted child, provided the child was legally adopted while under the age of 16 years and the child resided with and was in the legal custody of the adopting parent or parents for the requisite 2-year period.1
The petitioner filed his visa petition on the beneficiary's behalf on May 9, 1979. On February 4, 1982, the district director issued a notice of intention to deny the visa petition on the ground that the evidence submitted failed to establish that the beneficiary qualified as the petitioner's adopted child. On August 17, 1982, following the submission of additional evidence by the petitioner, the visa petition was approved and was forwarded to the American consulate general in Guangzhou, PRC. The consulate general returned the visa petition to the district director for possible revocation on December 6, 1983, setting forth reasons for its belief that the claimed adoption may not have taken place and, further, that the 2-year residence and legal custody requirements of section 101(b)(1)(E) had not been satisfied.
In a letter dated January 24, 1985, the district director notified the petitioner of his intention to revoke his approval of the visa petition based upon the recommendation of the American consulate general at Guangzhou, and he granted the petitioner 15 days within which to offer evidence in opposition to the grounds for revocation cited in the consulate general's report. The petitioner was provided with a copy of the report, both prior and subsequent to the notice of intention to revoke, and he responded through letters of counsel dated October 22, 1984, and March 4, 1985. On May 23, 1985, notwithstanding the petitioner's rebuttal, the district director determined that the petitioner had failed to demonstrate compliance with the residence and legal custody requirements of the statute, and he accordingly revoked his approval of the visa petition.
The consulate general's report, upon which these revocation proceedings are based, expressed doubt both as to whether an adoptive relationship was in fact created and whether the 2-year residence and legal custody requirements of section 101(b)(1)(E) had been satisfied. Since the district director's decision to revoke his approval of the visa petition was grounded solely on the petitioner's failure to establish compliance with the residence and legal custody requirements of the Act, we shall focus on those aspects of the record that relate to the stated ground for revocation.
Offered in support of the visa petition when it was first before the district director were several letters to the petitioner and his wife from the beneficiary, money order receipts, affidavits, and Chinese documents. Those documents included an adoption agreement, purportedly signed by the petitioner and his wife and the beneficiary's natural mother, which recites that the agreement was made on April 2, 1967.
In an affidavit dated July 7, 1981, the petitioner's wife stated that she and the petitioner adopted the beneficiary in June 1966, some 10 months prior to the date the adoption agreement was executed, following the death of the beneficiary's natural father. The petitioner's wife explained that she had not realized she would need documentation for the adoption until the family began arrangements to immigrate to the United States. She stated that her husband, the petitioner, lived in Hong Kong2 and was fearful of returning to their village in the PRC, having once been detained by the Communist regime as the son of a landlord. She asserted that she accordingly "had the responsibility of living in the village together with my adopted son to look after our farmlands being tilled by our workers." She claimed that her residence was in the village except for periodic visits to Hong Kong to be with her husband. She explained that her natural born children, all of whom were born in Hong Kong,3 lived with her husband in Hong Kong but that she and the children could freely enter and leave the PRC with her Hong Kong identity card. She added that the beneficiary had been unable to obtain an exit permit from the PRC Government and consequently could not join the other children in Hong Kong. The petitioner's wife explained that, because of the expense involved, and in order to avoid complicating the family's immigration to the United States, the petitioner's sister, who had petitioned to accord the petitioner his preference status, instructed the petitioner's wife not to claim her mother, sister, or the beneficiary. The petitioner's wife stated that the petitioner's sister had initially intended to bring only the petitioner to the United States but reconsidered when relatives urged that she not break up the family.
In an affidavit executed on June 29, 1981, one of the petitioner's biological sons, Jack, stated that arrangements for the beneficiary's adoption were made by his mother since his father was in Hong Kong and seldom returned to the village. He stated that "every summer vacation my mother brought me and my sister Susan back to our native village of Cheung On Lee from Hong Kong where we were attending school" and that "on the occasions we returned to the village my mother would bring candy and cookies for my brother which he loved." He stated that the beneficiary was cared for by his maternal grandmother whenever his mother was in Hong Kong. He added that it was his understanding that his parents could not obtain an exit permit from PRC authorities to enable the beneficiary to accompany the family to the United States.
In a sworn statement dated June 27, 1981, the petitioner's daughter Susan declared that her parents had adopted the beneficiary when he was about 6 years old and that "[d]uring June/July of 1966, he lived in our household and as children he played with me and my brother (Jack)." She continued, "My mother left China together with me and brothers and sisters." She explained that the family was not able to bring the beneficiary with them when they immigrated to the United States in September 1968 because "my father's sister who petitioned for us felt it would be too complicated to bring my adopted brother to the United States."
In the notice of intention to deny the visa petition dated February 4, 1982, the district director observed, inter alia, that the affidavits submitted in support of the visa petition were rather vague with respect to the length of time the beneficiary resided with the petitioner's spouse.4 The district director pointed out that it would not have been possible for the petitioner's wife to have resided with the beneficiary for the requisite 2-year period inasmuch as the adoption took place, according to the adoption agreement, on April 2, 1967, and the petitioner immigrated to the United States with his wife and biological children on September 19, 1968. The district director took note of the petitioner's wife's...
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