Matter of Kong, Interim Decision Number 2737

• Decision Date: 24 October 1979
• Docket Number: A-22165175,Interim Decision Number 2737
• Citation: 17 I&N Dec. 151
• Parties: MATTER OF KONG In Visa Petition Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

17 I&N Dec. 151

MATTER OF KONG

In Visa Petition Proceedings

Interim Decision Number 2737

A-22165175

Board of Immigration Appeals.

Decided by Board October 24, 1979.

(1) In order to qualify as brothers or sisters under section 203 (a)(5) of the Act, a petitioner must establish that both he and the beneficiary once qualified as children of a common parent and that parent is still a parent of each of them at the time the visa petition is adjudicated.

(2) The "once qualified" rule has been applied to give effect to the time limitations set out in the Act's definition of "child", while recognizing that the circumstances creating the relationship are unaffected by the passage of time, marriage of the child, or even death.

(3) Adoption in accordance with section 101(b)(1)(E) of the Act creates a parent-child relationship under the Act.

(4) Termination of an adoption accomplished in accordance with section 101(b)(1)(E) of the Act terminates the parent-child relationship which the adoption created.

(5) An adopted child who has gained immigration benefits through a natural parent by virtue of the termination of the adoption cannot confer immigration benefits on or through the adoptive parents.

(6) Child whose adoption was formally terminated when she came to the U.S. upon the petition of her natural mother, no longer had a common parent with the beneficiary, her former adoptive brother, and visa petition in his behalf denied.

ON BEHALF OF PETITIONER: Donald Paragon, Esq., 94 Bayard Street, New York, NY 10013

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members.

The United States citizen petitioner applied for visa preference status for the beneficiary as her brother under section 203(a)(5) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(5). In a decision dated June 30, 1978, the District Director denied the petition. The petitioner has appealed. The appeal will be dismissed.

The petitioner was born on November 2, 1950, in Macao, Portuguese China. When she was approximately nine months old, she was adopted by the beneficiary's mother and father. The beneficiary was born on November 4, 1962, in Macao.

The petitioner's natural mother immigrated to the United States in 1962. The petitioner's adoption was terminated by a STATUTORY DECLARATION dated July 16, 1967, so that her natural mother could petition for her to enter the United States. On July 28, 1967, her natural mother filed the visa petition, which was ultimately approved, and the petitioner arrived in the United States on April 6, 1969.

The petitioner lived with her adoptive parents from the time of her adoption in 1951, and after the adoption was terminated in 1967, until she came to the United States in 1969. Her adoptive father died in 1977 and her adoptive mother resides with her in Philadelphia, Pennsylvania. On May 18, 1977, the petitioner filed the instant petition on behalf of her adoptive brother.

The District Director denied the petition on the ground that the claimed relationship did not then exist as the petitioner's adoption had been terminated.

On appeal, the petitioner contends that the beneficiary is still her brother by virtue of Article 1083 of the Code of the Republic of China which, according to the petitioner,¹ provides:

From the time of the termination of adoptive relationship, the adoptive child resumes his original surname and his relation to his parents by birth. The existing rights of third parties, however, are not affected thereby.

She argues that the sibling relationship between herself and the beneficiary falls within the "existing rights of third parties" which are protected by the last sentence of Article 1083.

The issue in this case is whether a sibling relationship created by an adoption survives for immigration purposes the termination of that adoption. We hold that it does not, based on our interpretation of the Immigration and Nationality Act and irrespective of the law of the jurisdiction where the adoption was terminated.

The Act does not define "brother" or "sister", but does define the terms "child", "parent", "father", and "mother". The relevant portions of section 101(b)(1)(E) of the Act, 8 U.S.C. 1101(b)(1)(E) provide:

(1) the term "child" means an unmarried person under twenty-one years of age who is —

(A) a legitimate child; or

...

(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.

Section 101(b)(2) provides that the term "parent", "father", or "mother" means a parent, father, or mother only where the relationship exists by reason of any of the circumstances set forth in section 101(b)(1) of the Act.

This Board has held that in order to qualify as brothers or sisters under section 203(a)(5) of the Act, the petitioner must establish that both he and the beneficiary once qualified as children of a common parent. See Matter of Ferreira, 16 I & N. Dec. 495 (BIA 1978); Matter of Clahar, 16 I & N. Dec. 484 (BIA 1978); Matter of Bourne, 16 I & N. Dec. 367 (BIA 1977); Matter of Gur, 16 I & N Dec. 123 (BIA 1977); Matter of Rehman, 16 I & N. Dec. 512 (BIA 1975); Matter of Garner, 16 I & N. Dec. 215 (BIA 1975) and cases cited in footnote 2 thereof; Matter of Heung, 16 I &...