Interim Decision #1982

Interim Decision #1982

MATTER or KwkN

In Visa Petition Proceedings

A-17962954-6

Decided by Board May 9, 1969

Where petitioner, a native of China, was married according to Chinese law

and custom in China in 1921, in 1935 and in 1939 to three different persons; maintained and supported each woman in a separate household; was

domiciled in Hong Kong at the time of the birth there of beneficiaries to

his third wife in 1956 and 1957, the legitimacy of the children is determined by the applicable law of Hong Kong, namely, Chinese law and custom, which recognizes concubinage and under which the children of a secondary wife are treated as lawful children.. Hence, beneficiaries are the

legitimate children of petitioner and are entitled to preference classificaz

tion under section 203(a) (2) of the Immigration and Nationality Act, as

amended.

ON BEHALF OF PETITIONER:

Z. B. Jackson, Esquire

580 Washington Street

San 'Francisco, California 94111

The matter comes up on certification from the District Director, who, on August 16, 1968, approved the visa petitions filed

pursuant to section 209(2) (2) of the Immigration and Nationality Act. Petitioner, a 64-year-old male, married, native and citizen

of China and permanent resident of the United States, seeks second preference classification for his 'two minor daughters. The

beneficiaries were born on March 9, 1956, and April 4, 1957, in

Hong Kong and currently reside there. The record reflects that

petitioner married one Fong Fung Bo on August 10, 1921 in

China. He also married Tam Yee Chong on June 6, 1935 and

Cheng Wai Ying on January 6, 1939, in China. His first wife died

in Hong Kong on January 13, 1965. The second wife immigrated

to the United States and currently resides here. The third wife,

mother of the beneficiaries, is presently living in Hong Kong. In

a sworn statement, petitioner stated that he married each of the

three women according to Chinese law and custom. Petitioner

302

Interim Decision 4t1982

further stated that he maintained each woman in a separate

household and supported all three households.

The District Director concluded that the beneficiaries were petitioner's legitimate children. Relying upon a memorandum supplied by the Library of Congress, the District Director based his

conclusion on Article 1066 of the Chinese Civil Code of 1931

which provides:

A child born out of wedlock who has been acknowledged by the natural father is deemed to be legitimate; where he has been maintained by the natural father, acknowledgement is deemed to have been established.

The Service questions the use of Article 1066 of the Chinese

Civil Code of TM as the lea loci celebrationis. It argues that the

Civil Code of 1931 abolished concubinage and that, therefore, the

beneficiaries' mother cannot be considered petitioner's concubine

under the 1931 Code. The Service states that the Chinese law applicable in Hong Kong is the Chinese customary law existing in

1843 (Ta-Tsing—lii li) and that Hong Kong does not recognize the

1930 or 1950 modifications in Chinese law. It is argued that

under the Ta Taing lii li, the taking of a concubine involved a

formal ceremony with the introduction of the concubine into her

husband's household. The Service contends that by maintaining

three separate households, the petitioner entered into three bigamous marriages, rather than concubinages. The Service then

urges us to apply English law of Hong Kong which would render

children of bigamous marriages illegitimate.)

The issue presented is whether or not the 1931 Chinese Civil

Code, the law of the place of celebration of the marriage between

petitioner and beneficiaries' mother, or the Chinese.law of Hong

Kong, the place of petitioner's domicile at the time of the beneficiaries' birth in Hong Kong, should apply in determining the status of the beneficiaries.

An examination of the Chinese Civil Code of 1931 and Chinese

law applicable in Hong Kong reveals that under either law the

beneficiaries would be the legitimate daughters of the petitioner.

As correctly noted by the Service, the Chinese Civil Code of

1931 abolishes concubinage. Assuming that petitioner intended to

-

—

!The Service also argues that petitioner's personal law for purposes of acknowledgement is Portuguese law, by virtue of his birth in the Portuguese

Colony of Macao. We disagree. The marital relationships were created in

China. Petitioner left China in 1949 and resided in Hong Kong from 1949 to

1966. The petitioner was domiciled in Hong Kong at the time of the beneficiaries' birth there. Therefore, the law of Macao is not relevant to the disposition of the issues presented.

303

Interim Decision #1982

take the beneficiaries' mother as a concubine in violation of the

Civil Code, nevertheless under Article 1066 of the Civil Code,

children born of such unions are considered legitimate, where

there has been acknowledgement by the natural father." The District Director in applying Article 1066, which refers to "children

born out of wedlock," avoided deciding whether petitioner had legally married the children's mother since all that is necessary is

that the natural father acknowledge the beneficiaries as his

children.' The facts clearly show that petitioner's support of the

children and their mother was sufficient under the Chinese Civil

Code to constitute acknowledgement, and therefore legitimation.

On the other hand, the law of Hong Kong, recognizing the old

Chinese law of 1848, acknowledges the institution of

concubinage. 4 Under the Chinese Code of 1843 (Ch'ing Code), no

formality is required for the taking of a concubine.' While custom

may dictate certain formalities for the establishment of such relationships, opinions vary greatly as to what are the ceremonial requirements for the taking of a concubine.' The criteria for deter2 A noted authority commenting on legitimation under the Chinese Civil

Code states:

.. this chapter has evidently been influenced by the Soviet Code of the

Family which does not distinguish between legitimate and illegitimate children. As a consequence of the system adopted by the Code, it has become

very easy to legitimate children without being married, . . . (Van der Valk,

An Outline of Modern Chinese Law, 133, Peking (1939) ).

3 Article 1065 of the Chinese Civil Code further . provides:

In the case the illegitimate child has been supported and brought up by

the father, it is considered acknowledged.

Professor Van der Valk comments on this section: "This is of great importance to the children of the concubine, since she mostly lives in the same

family as the father, as a rule her childr

en will be supported and brought

up by the natural father and thereby acknowledged" (id at p. 130).

4 The Privy Council in the Matter of Re Khoos Them Tek Settlements,

L.R.A.C. 346 (1930), ruled that the English law should not be applied where

it would result in injustice or oppression. As a result, the courts of the Colony recognize polygamous marriages among the Chinese and the legitimacy

of the offspring (whether male or female) of such marriages (Report of the

Governor's Committee on Chinese Law and Custom in Hong Kong, P. 84

(Hong Kong 1948) ).

The Governor's Committee on Chinese Law and Custom in Hong Kong

stater that the taking of a concubine was purely a matter of bargain and

sale until 1910 when an imperial edict abolished purchase (supra, p. 22).

The Privy Council affirmed the decision of the Supreme Court of the Straits

Settlement that no ceremony is required, Cheang Thye Phin v. Tan Ah Lay,

L.R.A.C. 369 (1920).

The testimony of experts before the Governor's Committee on Chinese

Law and Custom in Hong Kong produced great variations. The experts,

304

Interim Decision #1982

mining whether cohmbinage.has been established are intention of

the parties and the permanency of the union.' Where, as here,

there has been the creation of a household and the support of the

concubine and her children, and the maintenance of such a relationship over a period of time, we believe the courts of Hong

Kong would find that concubinage exists. We, therefore, cannot

agree with the Service view that the establishment of concubinage should depend solely on ceremonial formalities.

The status of a concubine and her children under Hong Kong

law has been thus described:

According to judicial decisions, including Privy Council decisions a tsip

(concubine) is in law considered a wife, a secondary or inferior wife it is

true . . . but nevertheless a wife and not a kept mistress and the children of

the principal wife and of the secondary wife are treated alike as to the lawful children.4

It is clear that under the Chinese Civil Code or under Hong Kong

law the beneficiaries are the legitimate children of the petitioner.

We therefore find that Chinese law applicable in Hong Kong

governs in this case. As we previously noted, the petitioner was

domiciled in Hong Kong at the time of the beneficiaries' birth in

Hong Kong. Chinese law and custom (as existing in 1843) apply

only to Chinese domiciled in Hong Kong.', In the instant case, the

law to be followed is the law of the petitioner's domicile at the time

when the question arose, namely the birth of the beneficiaries.]'

We, therefore, believe that under Chinese law applicable in Hong

Kong, the beneficiaries are entitled to preference classification

under section 203 (a) (2) of the Immigration and Nationality Act.

ORDER: It is ordered that the decision of the District Director

be and the same is hereby armed.

however, agreed that the consent of the principal wife (teal) is not necessary to the taking of a concubine (Report of the Committee, supra, at pp.

151-158).

Comments on the Report of 'the Committee on Chinese Law and Custom

in Hong Kong, p. 9 (Hong Kong 1953). Dr. Ping Leung Lam, an authority

on Chinese law, testifying before the Governor's Committee on Chinese Law

and Custom (supra, p. 152), stated: "I have a decision of the 8th Year of

the Chinese Republic by the Courts of China. This was a declaratory decision: 'To marry a concubine there must be the intention of permanent

cohabitation and an intention to have her as a member of the husband's

family and there must be relationship of the couple analogous to that of the

husband's wife. In law there is no provision prescribing any kind of formality'."

9 Man Kam Lo, C.B.E., Comments on the Report of the Committee • on

Chinese Law and Custom in Hong Kong, p. 9 (Hong Kong 1953).

9 Id., at page 3.

29 Id., at page 3.

305