Matter of Li, Interim Decision Number 3207
| Decision Date | 29 September 1993 |
| Docket Number | Interim Decision Number 3207,A-71867441 |
| Parties | MATTER OF LI In Visa Petition Revocation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
(1) An adopted child, as defined by section 101(b)(1)(E) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(E) (1988), may not confer immigration benefits upon a natural parent without regard to whether the adopted child has been accorded or could be accorded immigration benefits by virtue of his or her adoptive status. Matter of Valsamakis, 12 I&N Dec. 421 (BIA 1967); and Matter of Lum, 11 I&N Dec. 55 (BIA 1964), overruled. Matter of Kirby, 13 I&N Dec. 173 (BIA 1969), modified.
(2) The petitioner, who was an adopted child under the immigration laws, may not confer immigration benefits upon the beneficiary, his natural sibling, because their common natural parent no longer has the status of parent of the adopted child for immigration purposes.
ON BEHALF OF PETITIONER: Stephen P. Gleit, Esquire Gleit & Fair 401 Broadway, Suite 601 New York, New York 10013
The petitioner applied for preference classification for the beneficiary as his sibling pursuant to section 203(a)(5) of the Immigration and Nationality Act, 8 U.S.C. § 1153(a)(5) (1988).1 The petition was approved on May 26, 1990. In a decision dated August 3, 1991, the district director revoked approval of the petition. The petitioner has appealed. The appeal will be dismissed. The request for oral argument is denied. See 8 C.F.R. § 3.1(e) (1993).
Under section 205 of the Act, 8 U.S.C. § 1155 (1988), the Attorney General may revoke the approval of any visa petition approved by her for what she deems to be "good and sufficient cause." A notice of intention to revoke a visa petition is properly issued for "good and sufficient cause" when the evidence of record at the time of issuance, if unexplained and unrebutted, would warrant a denial of the visa petition based upon the petitioner's failure to meet the requisite burden of proof. Matter of Arias, 19 I&N Dec. 568 (BIA 1988); Matter of Estime, 19 I&N Dec. 450 (BIA 1987). The basis for issuance of the notice of intention to revoke in these proceedings was the Immigration and Naturalization Service's position that, as a matter of law, the beneficiary was ineligible for classification as the sibling of the petitioner. For the reasons we discuss below, we find the notice of intention to revoke to have been properly issued for good and sufficient cause.
The petitioner, a naturalized citizen of the United States, was adopted as a child. He did not gain an immigration benefit by virtue of his adoption. However, after gaining lawful status in the United States, he filed a petition to have immediate relative status conferred upon his adoptive mother. That petition was granted upon the petitioner establishing that his adoption satisfied the requirements of section 101(b)(1)(E) of the Act, 8 U.S.C. § 1101(b)(1)(E) (1988). He then sought to have a petition for preference classification approved on behalf of his natural sibling. That petition was approved, but the approval was subsequently revoked by the Service.
The question before us is whether a petitioner, who qualifies as an adopted child within the provisions of section 101(b)(1)(E) of the Act, can successfully petition for a natural sibling on the basis of their relationship to a common natural parent? Does the natural sibling relationship survive for immigration purposes when a child has been adopted and that adoption satisfies the requirements of section 101(b)(1)(E)?
The petitioner finds support for his position that his natural sibling is eligible for immigration benefits by virtue of their relationship to a common natural parent in Matter of Fujii, 12 I&N Dec. 495 (D.D. 1967).2 In that case, a district director held that the relationship of brother and sister created by the legitimate birth of siblings to the same parents is not destroyed by the subsequent adoption of a sibling, and, therefore, the natural siblings of the adopted child are entitled to any immigration benefit generally available to siblings.
On the other hand, the Service submits that a parent/child relationship ceased to exist between the petitioner and his natural parents subsequent to his adoption and that thereafter his natural parents' other children, including the beneficiary, could no longer qualify as his siblings within the scope of the Act. The Service cites Matter of Kong, 17 I&N Dec. 151 (BIA 1979), in support for this position.
As a starting point, we note that 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) provide:
The term "child" means an unmarried person under twenty-one years of age who is —
(A) a legitimate child;
. . . .
(E) a child adopted while under the age of sixteen years if the child has 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....3
Section 101(b)(2) of the Act 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).
The Board has long held that in order to qualify as siblings under section 203(a)(5) of the Act, a petitioner must establish that he and the beneficiary once qualified as children of a common parent within the meaning of sections 101(b)(1) and (2) of the Act. See Matter of Mourillon, 18 I&N Dec. 122 (BIA 1981); Matter of Kong, supra; Matter of Ferreira, 16 I&N Dec. 494 (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, 15 I&N Dec. 512 (BIA 1975); Matter of Garner, 15 I&N Dec. 215, 216 n.2 (BIA 1975), and cases cited therein; Matter of Heung, 15 I&N Dec. 145 (BIA 1974).
This "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." Matter of Kong, supra, at 153. As we explained in Kong, however, this language was not intended to suggest that the status of "parent," once established, could not be terminated. In Kong, we clarified that to qualify as siblings under section 203(a)(5) of the Act, a petitioner must establish both that he and the beneficiary once qualified as children of a common parent and that the parental relationship has not been severed. In that case, we found that a sibling relationship created by an adoption did not survive for immigration purposes the termination of the adoption. Although the petitioner and beneficiary "once qualified" as sister and brother, they no longer qualified as siblings under the Act because they no longer had a common parent. The petitioner's adoptive parents were not her "parents" at the time the visa petition was filed because the relationship between them and her had been severed.
Does the parent/child relationship between natural parents and child survive for immigration purposes when a child has been adopted? Section 101(b)(1)(E) of the Act defines the adoptive child relationships that will be recognized under the Act. Under that section, there must be a legal adoption while the child is under 16 years of age and the child must have been in the legal custody of, and have resided with, the adopting parent or parents for at least 2 years. If "such" an adoption occurs, the child is recognized as the child of the adoptive parent or parents, and no natural parent can thereafter by virtue of such parentage be accorded any "right, privilege, or status" under the Act. See section 101(b)(1)(E) of the Act; Matter of S----, 9 I&N Dec. 567 (BIA 1962); Matter of K----, 9 I&N Dec. 116 (BIA 1960). If an adoption occurs, but it does not satisfy the requirements of section 101(b)(1)(E), the relationship between the natural parent and the child continues to be recognized under the Act. See Matter of B----, supra. Thus, for purposes of any "right, privilege, or status" under the Act, a child may be recognized as the child of his or her natural parents or of his or her adoptive parent or parents, but not of both. The determinative test is whether an adoption occurred that satisfied the requirements of section 101(b)(1)(E). If "such" an adoption has occurred, any right, privilege, or status of the natural parents under the Act is thereafter terminated. Thus, natural parents no longer have the "status" of parents under the Act once "such" an adoption has occurred. Accordingly, where there is "such" an adoption, a sibling relationship will not be recognized for immigration purposes based simply on the fact that the petitioner and beneficiary "once qualified" as children of a common natural parent because it can no longer be shown that the natural parent has the "status" under the Act of "parent" of the adopted child.
We note that in Matter of Lum, 11 I&N Dec. 55 (BIA 1964), we added a gloss to the language of section 101(b)(1)(E) of the Act that we now find cannot be supported by the words of the statute. In Matter of Lum, we held that the term "such adopted child" contained in the proviso to section 101(b)(1)(E) — 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 — "obviously means an adopted child who under the terms of the section is eligible for — or has obtained — an immigration benefit." Id. at...
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