In VISA PETITION Proceedings

MATTER OF IV

In VISA PETITION Proceedings

A-11677385-6

Deckled by Board April 27, 1960

Preference quota status—Adopted child—Custody and residence requirements

cannot be waived by foreign court.

Adopted children are not eligible for preferential quota status unless adoptive

citizen parents have complied with two-year residence and custody requirements in section 101(b) (1) (E) of Immigration and Nationality Act. Foreign court issuing adoption decree has no jurisdiction to waive factors necessary to establish parent-child relationship as cleaned by the act.

BEFORE THE BOARD

Discussion: Petitioner, a native-born United States citizen, presently residing in the State of Illinois, appeals from decisions of the

district director on February 12, 1960, denying petitions for preference visa status in behalf of A and E—A two

adopted sons. The former was born in Poland on December 2, 1957,

and the latter was born in Poland on October 17, 1952. It appears

that these minor children are in Poland. (Preference quota status

is sought under section 203(a) (2), Immigration and Nationality Act,

as amended September 11, 1957, Public Law 85-316; and September

22, 1959, Public Law 86-363.)

Denial of the petitions herein is predicated on a finding that the

beneficiaries do not meet the requirements of the statute defining

the term "child" as that term is defined in section 101(b) (1) (E),

Immigration and Nationality Act, as amended September 11, 1957

(Public Law S5-316) ; and the petitioner has not established that he

is a "parent" as that term is defined in section 101(b) (2) of tho

Immigration and Nationality Act. In other words, the beneficiaries,

both adopted children, have not been in the legal custody of, and

have not resided with, the adoptive parents for at least two years

after adoption as required for immigration purposes. The issue to

be resolved is whether the relationship of parent and child (children) is established (section 205(b), Immigration and Nationality

Act, as amended September 22, 1959; 8 U.S.C. 1155).

A translated document before us is copy of a "Decree" dated

December 17, 1959, granted by the Judge of the County Court of

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Debica, Poland, following hearing in the case of R

and H, Berwyn, Illinois, petitioners (lawfully married and both

United States citizens), residing in Illinois, through their attorney

for the adoption of two minors, E A G and A G—.

The court gave the minors the surname "W ," same as adoptive

parents, and the legal rights of the natural parents to the minors

were released. The court, observing that certain rules and regulations of 1955 in force in the State of Illinois, the residence of the

petitioners, should be applied according to article 233, Act of September 2, 1926 (International Private Law), found that the adoptive

parents met all of the requirements of the 1955 provisions (Illinois

State laws). Thus, the court transferred the custody of both adopted

minor children to the petitioners, R and H W . The

court waived the requirement of six months' residence of the minors

with the petitioners prior to adoption, which, under the circumstances, was impossible because the adopted minors were in Poland

and the adoptive parents were in the United States.

Petitioner contends that the adoption decree has waived the requirement that the adoptive parents have legal custody of, and

residence with, the adopted children for at least two years. It is

urged that the adoption procedure was according to law.

We will emphasize again that the essential factor in resolving

the issue presented is relationship of "parent" and "child" as defined in the immigration laws. The term "child" means an unmarried person under 21 years of age who, for the purposes of these

petitions, is an adopted child whose adoption took place while he

was under 11 years of age, 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 (section 101(b) (1) (E), Immigration and

Nationality Act, as amended; and Matter of C

F---L--, VP

3-1-116868, Int. Dec. No. 996, Atty. Gen., 1959). The term "parent"

means a parent only where the relationship exists by reason of any

of the circumstances set forth above, that is, where all the requirements of the immigration statute defining the term "parent" and

"child" have been met (section 101(b) (9) and section 905(b), Immigration and Nationality Act, as amended). To be eligible for

preference quota status under section 203(a) (2), Immigration and

Nationality Act of 1952, as amended, the petitioner must establish

the relationship of adoptive parent (petitioner) and adopted child

(children) (beneficiaries) within those terms as defined in the provicions of law referred to above. The fact that the court in Poland

in adoption proceedings waived certain prior residence requirements,

and the fact that the court transferred custody of the adopted children to the adoptive parents do not satisfy the pertinent require—

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vent of the immigration statute providing a preference visa status

.`or those meeting the requirements.

The beneficiaries herein were under the age of 14 years when

adopted on December 17, 1959. It appears that the adoption procedure was according to the children's residence or domicile. The

court, we observe, waived one requirement, namely, that the adopted

children should have- had six months' residence with the adoptive

parents prior to the adoption decree. It may be stated that the beneficiaries (adopted children) have never - been in the actual custody

of the adopted parents after adoption; nor have they resided with

the adoptive parents for any period of time. The adoption court,

in transferring custody of the children to the adoptive parents, was

without jurisdiction to waive any of the requirements of the pertinent immigration laws relating to the factors necessary to establish

the relationship of "parent" and "child" (sections 101(b) (1) (E)

and 101(b) (2), Immigration and Nationality Act).

Undoubtedly the denial of these petitions will result in disappointments and hardships to the petitioner and the beneficiaries.

Notwithstanding these appealing factors, there is no alternative but

to dismiss the appeals.

Order: It is ordered that the decisions of the district director

-denying the petitions herehi be affirmed, and that the appeals therefrom be dismissed.

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