Matter of K-B-W-

MATTER OF K—B W—

K—B W—案

Presumption of lawful admissicin for permanent residence- 8 CFR 101.1(j)(1)— Adoptive child. The alleged adoptive child of a United States citizen who is not within defi- nition contained in section 101(b) (1) (E) of the 1952 Act, because not legally adopted under the law of his residence (China), or of his alleged adoptive father's residence (California), cannot qualify for presumption of lawful admission for permanent residence under 8 CFR 101.1(j) (1).

永久居留合法入境推定—— 8 CFR 101.1(j)(1)—— 收养子女。 声称的美国公民收养子女，因未依其居住地法律（中国）或其声称收养父亲居住地法律（加利福尼亚州）合法收养，不属于1952年法案第101(b)(1)(E)条所载定义范围，不能依8 CFR 101.1(j)(1)取得永久居留合法入境推定资格。

DISCUSSION: The case comes forward on appeal from the order of the special inquiry officer dated December 20, 1961, ordering re- spondent deported on the charges set forth above. The order of the special inquiry officer contains a full discussion of the case. The record relates to a native and citizen of China who was born on May 3, 1935, under the name of W—, K—B—, the natural son of W—, Y—S— and D—S—, natives and citizens of China who have never resided in the United States. About the year 1944, when the respondent was 9 years of age., he was given by his parents to the family of W—, T—S—, a United States citizen, who however was not at that time in China. He resided with W—'s wife, Y—S—, and an aunt. The wife did not tell her husband about the adoption until after the war, in about 1945. The respondent's immigration mother has testified both that the respondent began to reside with her approximately in 1943 and when he was 9 years old. The respondent has testified that he was given to the W— family when he was ahmit 9, during the war. The immigration father has testified that although he did not know exactly, his son was about 11 or 12 when he came into his family. In connection with

讨论：本案因特别调查官1961年12月20日的命令而上诉至委员会，该命令以上述指控下令将答辩人驱逐出境。 特别调查官的命令包含对本案的完整讨论。记录涉及一名中国本土出生公民，1935年5月3日出生，名为W—, K—B—，系W—, Y—S—与D—S—的亲生儿子，二人均为中国本土出生公民，从未在美国居住。约1944年，答辩人9岁时，被其父母交给W—, T—S—的家庭，后者系美国公民，但当时并不在中国。他与W—的妻子Y—S—及一位姑母同住。该妻子直到战后约1945年才告知丈夫收养之事。答辩人的移民母亲作证称，答辩人约于1943年开始与她同住，当时他9岁。答辩人作证称，他在战争期间约9岁时被交给W—家庭。移民父亲作证称，虽不确切知道，但其儿子进入其家庭时约11或12岁。就

an affidavit executed for the purpose of identifying the respondent as a citizen of the United States and to facilitate ''his travel to the United States as a eitizeri, the immigration father made a sworn statement on May 20, 1047, before a notary public that the respond- ent was the issue of his marriage to Y—M—Q-- or Y S , was born on CR 23-11-29 (January 4, 1935), and in connection with testimony he gave at the time of the respondent's application for admission as fi citizen on September 8, 1947, he named the respond- ent as his son, horn CR 23-11-29 (January 4, 1935), and replied in the negative to the specific question concerning whether he had ever adopted a son or a daughter. Respondent has admitted through counsel that he is not a citizen or national of the United States; that he is a native and citizen of China; that he last entered the United States at Los Angeles, California, on or about February 2; 1957; and that he was then admitted upon his false claim to United States citizenship upon presentation of a United States passport. The respondent was first admitted to the United States on Sep- tember 8, 1947, at the port of San Francisco, California, as a United States citizen under the provisions of Public Law 271 (Act of December 28. 1945), accompanied by his immigration mother, and his immigration brother, W, Y—T—. Consul con- tends that proceedings should be terminated, arguing that the re- spondent is comprehended within the provisions of 8 CFR 101.1 (j) (1). This regulation provides that for a presumption of lawful admission for permanent residence in the case of : An alien for whom there exists a record of admission prior to September 11, 1957, as a United States citizen who establishes that at the time of such ad- mission he was the child of a United States citizen parent ; he was erroneously issued a United States passport or included in the United States passport of his citizen parent accompanying him or to whom he was destined; no fraud or misrepresentation was practiced by him in the issuance of the passport or golfing min:LL5:,sion ; he was otherwise udrui.osible at the time of entry ex- cept for failure to meet visa or passport requirements; and he has maintained a residence in the United States since the date of admission. For the pur- poses of the foregoing, the terms "child" and "parent" shall be defined as in section 101(b) of the Immigration and Nationality Act, as amended. In order to qualify as a child the respondent must meet the defini- tion set forth in section 101(b) (1) (E) of the Act, as amended, which provide ° that the child shall have been adopted while under the age of 14 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. Conceding that the respondent otherwise qualifies, 1 the question remains to be decided whether the respondent was legally adopted pursuant to the prevailing law in China. Article 1079 of the

为证明受访人是美国公民并便利其“作为公民前往美国”而签署的宣誓书，移民父亲于1047年5月20日在公证人面前作出宣誓陈述，称受访人系其与Y—M—Q——或Y S婚姻所生子女，出生于CR 23-11-29（1935年1月4日），并在其于1947年9月8日受访人申请作为公民入境时所作的证言中，将受访人列为其儿子，出生于CR 23-11-29（1935年1月4日），并对关于其是否曾收养过儿子或女儿的具体问题作出否定回答。 受访人已通过律师承认，其不是美国公民或国民；其是中国本土出生和中国公民；其最近一次于1957年2月2日前后在加利福尼亚州洛杉矶进入美国；其当时是凭出示美国护照并以虚假的美国公民身份主张而获准入境。 受访人首次于1947年9月8日在加利福尼亚州旧金山口岸，依据Public Law 271（1945年12月28日法案）的规定，作为美国公民入境，随行有其移民母亲及其移民兄弟W, Y—T—。领事主张程序应予终止，辩称受访人属于8 CFR 101.1 (j) (1)的规定范围。该法规规定，对于以下情形可推定合法获准永久居留： 外国人，如其存在1957年9月11日之前作为美国公民获准入境的记录，且其证明在获准入境时系美国公民父母的子女；其被错误签发美国护照或被列入随行或为其目的地的公民父母的美国护照；其在护照签发或golfing min:LL5:,sion方面未实施欺诈或虚假陈述；其在入境时除未满足签证或护照要求外本可获准入境；且其自入境之日起一直保持在美国的居留。就前述而言，“子女”和“父母”应依经修订的《移民与国籍法》第101(b)条定义。 为符合子女资格，受访人必须满足经修订的法案第101(b) (1) (E)条所规定的定义，该条规定子女须在14岁以下时被收养，且此后至少2年处于收养父母的法定监护下并与其共同居住。在承认受访人在其他方面符合资格的情况下，1 仍需裁定的问题是，受访人是否依中国当时有效的法律合法被收养。第1079条

1 if -otter 9 176.

1 if -otter 9 176。

Chinese Civil Code promulgated May 28, 1929, states that adoption shall be effected in writing, unless the person to be adopted has been brought up as a child of the adopting parents since infancy. The term "infancy" in this article has been construed to mean a child not more than seven years of age. 2 There is no evidence to establish a valid adoption under the laws of California where the immigration father resided. Inasmuch as a valid adoption has not been established, the record fails to establish that the respondent was a child of a United States citizen at the time of his original admission in 1947 or at any time thereafter and he cannot qualify under the provisions of 8 CFR 101.1 (j) (1).3 Nor is respondent eligible for a -waiver of documents in connection with his last entry on February 3, 1957, since ho was never lawfully admitted for permanent residence. We agree with the special inquiry officer that the charge in the order to show cause and the lodged obsrgA are both sustained. Respondent declined to apply for any discretionary relief. The appeal will be dismissed. ORDER: It is orde,-ed that the appeal be and the same is hereby dismissed.

1929年5月28日颁布的《中国民法典》规定，收养应以书面形式进行，除非被收养人自婴儿期起即作为收养父母的子女抚养。本条中“婴儿期”一词被解释为不超过7岁的儿童。2 无证据证明依移民父亲居住地加利福尼亚州法律存在有效收养。 鉴于未确立有效收养，记录未能证明答辩人在1947年首次入境时或此后任何时间为美国公民的子女，其不能符合8 CFR 101.1(j)(1)规定资格。3 答辩人亦不符合就其1957年2月3日最后入境相关的文件豁免资格，因其从未合法获准永久居留。我们同意特别调查官的意见，即说明理由令中的指控和追加的obsrgA均成立。答辩人拒绝申请任何酌情救济。上诉将被驳回。 命令：兹命令上诉予以驳回，且特此驳回。