A-27590846.
Decided by Board February 23, 1990.
(1) The Board of Immigration Appeals rejects a strict statutory interpretation of section 101(b)(1)(E) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(E) (1982), thereby relying upon the legislative history of the statute which indicates that Congress did not intend to recognize ad hoc adoptions designed to circumvent the immigration laws.
(2) The Board finds the adoptive relationship is more akin to marital relationships than to steprelationships, and thus, in certain cases, the bona fides of adoptions will be determined.
(3) Visa petitions involving the specter of sham adoptions which generally arise in adoptions by a close relative where the relationship between the natural parent and the adopted child does not appear to change subsequent to the adoption will be analyzed under the standards set forth in Matter of Cuello, 20 IN Dec. 94 (BIA 1989).
ON BEHALF OF PETITIONER: Donald L. Ungar, Esquire Simmons, Ungar, Helbush DiCostanzo Steinberg 517 Washington Street San Francisco, California 94111
ON BEHALF OF SERVICE: Arthur R. George General Attorney
BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members
In a decision dated May 31, 1988, the district director revoked his prior approval of the visa petition filed by the petitioner to accord the beneficiary immediate relative status as her adopted daughter under section 201(b) of the Immigration and Nationality Act, 8 U.S.C. § 1151(b) (1982). The petitioner appeals from that decision. The appeal will be dismissed.
The petitioner, a 49-year-old native of the Philippines and citizen of the United States, adopted the beneficiary, a 20-year-old native and citizen of the Philippines, on December 2, 1980, when she was 11 years old. The petitioner filed the visa petition on the beneficiary's behalf on December 28, 1984, when the beneficiary was 15 years old.
The record shows that the beneficiary is the petitioner's niece. The petitioner asserts that she resided with the beneficiary from her birth in 1969 until the petitioner emigrated to the United States in 1975. In support of her visa petition, the petitioner submitted an affidavit of the beneficiary's natural mother, which confirms that the petitioner resided in the home of the beneficiary's natural mother with the beneficiary, whom the petitioner helped support financially. The petitioner also provided a letter dated March 5, 1985, from the manager of the Esteva Co., Inc., a dollar-peso exchange, listing numerous remittances from the petitioner and her husband payable to the beneficiary's natural mother from 1982 through 1984.
At the time the district director entered his decision in this case, section 101(b)(1)(E) of the Act, 8 U.S.C. § 1101(b)(1)(E) (1982), included within the definition of the term "child," "a child adopted while under the age of sixteen years if the child has thereafter been in the legal custody of, and has resided with, the adoptive parent or parents for at least 2 years."
The visa petition was approved on April 8, 1985. Thereafter, the Service received a memorandum from the American Embassy in the Philippines dated July 7, 1986, which concludes that the petitioner failed to comply with the 2-year residence requirement of section 101(b)(1)(E) of the Act. The memorandum states that the beneficiary was adopted by her aunt, that the petitioner did live in the beneficiary's household prior to her emigration to the United States, but that the beneficiary's natural mother resided in the same household and maintained parental authority.
Based upon that memorandum, the district director advised the petitioner in an undated letter of his intention to revoke approval of the visa petition for failure to meet the residence requirement of section 101(b)(1)(E) of the Act. In his letter, the district director set forth the facts outlined in the Embassy memorandum and granted the petitioner 18 days within which to submit evidence rebutting the stated ground for revocation.
In response to the district director's notice of intention to revoke the visa petition, the beneficiary submitted a letter dated April 27, 1988, from the beneficiary to the district director asking for reconsideration and stating that from the time of her adoption, her natural mother acted only as a guidance counselor, while the petitioner met her physical and financial needs.
In his decision of May 31, 1988, the district director revoked his prior approval of the visa petition on the ground that the petitioner had failed to submit evidence sufficient to overcome the stated basis for revocation.
On appeal, the petitioner through counsel contends that the district director erred in concluding that she had failed to satisfy the residence requirement of section 101(b)(1)(E) of the Act. The petitioner argues that the parties' undisputed 6-year residence in the same dwelling place prior to her emigration to the United States fulfills that requirement inasmuch as the concept of residence is addressed in the Act only in section 101(a)(33), which defines "residence" as one's "principal dwelling place." The petitioner further argues on appeal that contrary to the district director's view, parental control or authority is an element of legal custody and should not be intertwined with the residence requirement of section 101(b)(1)(E) of the Act. Counsel for the petitioner also points out that in Palmer v. Reddy, 622 F.2d 463 (9th Cir. 1980), the United States Court of Appeals for the Ninth Circuit held it improper for the Service, in the context of steprelationships, to require a stepparent to demonstrate "parental interest" when the statute made no explicit reference to such showing. He argues the same should be true for adoptive relationships.
In its brief on appeal, the Service, relying on Matter of Repuyan, 19 IN Dec. 119 (BIA 1984), argues that the petitioner's appeal should be dismissed because the petitioner did not live with the beneficiary in a home established by her and because she has failed to establish that she did not adopt the beneficiary solely to facilitate the beneficiary's entry into the United States.
The petitioner responded to the Service's arguments, arguing that section 101(b)(1)(E) of the Act does not explicitly state that the residence of the adopted child and adoptive parent must occur in a home established by the adoptive parent. Counsel for the petitioner avers that such requirement would impermissibly burden adoptive parents by adding criteria to the statutory definition of an adopted child. Counsel further suggests that the absence of clear statutory language in section 101(b)(1)(E) of the Act requiring that the residence of the parties occur in a home established by the adoptive parent, coupled with the absence of a provision for a de facto familial relationship, indicates congressional intent to recognize all adoptions which comply with the age and legal custody requirements of that section where the adopted child and adoptive parent have shared the same "principal dwelling place" for at least 2 years.
In responding to the Service's argument that the petitioner failed to prove the adoption was not entered into in order to circumvent the immigration laws, counsel relies on Matter of Cho, 16 IN Dec. 188, 190 (BIA 1977), for the proposition that the explicit requirements of section 101(b)(1)(E) of the Act were designed by Congress to prevent sham adoptions, and that their satisfaction should establish for immigration purposes that the adoption is not a sham.
In sum, the petitioner argues for strict statutory interpretation of section 101(b)(1)(E) of the Act such that all adoptions which satisfy the age and legal custody requirements of the Act where the parties have shared the same principal dwelling place for 2 years would be recognized for immigration purposes. She claims that she has fully satisfied the plain language of section 101(b)(1)(E) of the Act and approval of her visa petition should, therefore, be reinstated.
In assessing the petitioner's arguments, we first note that the legislative history of the bill which provided for section 101(b)(1)(E) of the Act indicates that Congress did not by its definition intend to recognize ad hoc adoptions entered into to circumvent immigration laws. See 103 Cong. Rec. 14,659 (1957).
103 Cong. Rec. 14,659 (1957) shows that Senator Kennedy, one of the principal sponsors of the bill which provided for section 101(b)(1)(E) of the Act, stated that the requirements of the adopted child amendment "would prevent abuse through ad hoc adoptions made only for the purpose of circumventing the immigration laws."
Second, we disagree with the petitioner that section 101(b)(1)(E), and section 101(b)(1)(D) of the Act which provides for the admission of stepchildren, are sufficiently analogous that Palmer v. Reddy, supra, should influence how we interpret the language of section 101(b)(1)(E) of the Act. Palmer involved steprelationships, which, unlike adoptive relationships, are derivative in nature, arising as a consequence of another relationship, that is, a marriage of a natural parent and a stepparent. Thus, the familial status of children from such a marriage and the concomitant immigration benefit granted by Congress as a result of that status could not in itself involve an attempt to circumvent immigration laws.
We have recently held, however, that if the marriage creating the steprelationship is determined to be a sham, then we will not recognize for immigration purposes steprelationships created as a result of that marriage. See Matter of Awwal, 19 IN Dec. 617 (BIA 1988).
In this regard, we find the adoptive relationship more akin to marital relationships than we do to steprelationships because a marriage, like an adoption, may be entered into simply to facilitate entry into the United States. The United States Supreme Court has upheld inquiry into the bona fides of legal marriages despite the absence of statutory language mandating such inquiry. See, e.g., Lutwak v. United States, 344 U.S. 604 (1953) (the Court upheld criminal convictions for conspiracy to defraud the United States by obtaining illegal entry into this country of three aliens who had entered into marriages with the defendants for the sole purpose of qualifying them for admission into the United States).
We also find misplaced the petitioner's reliance on Matter of Cho, supra, for the proposition that the bona fides of an adoption is established when the parties satisfy the age and legal custody requirements of the statute and show they have shared a principal dwelling place for 2 years. In Matter of Cho, we asserted that district directors should not impose stricter standards on adoptive relationships than Congress and we recognized that Congress inserted specific safeguards against ad hoc adoptions. However, an examination of the nature of the parties' residence with one another is not precluded by Matter of Cho, supra.
Taking the petitioner's arguments to their logical extreme, district directors would have to recognize all adoptions meeting the age and legal custody requirements of the Act where the parties have shared a principal dwelling place for 2 years even if they concede that the sole purpose of the adoption was to facilitate entry of the adopted child into the United States. While it may be a rare occasion that an adoptive parent admits such purpose for an adoption, we note that most of the cases which raise the specter of a sham adoption arise in a limited factual context. Generally, the adoption is by a close relative, the natural parent or parents are still alive, the cohabitation of the adoptive parent and child occurs with the natural parent or parents, often in the home of the natural parents, and no meaningful objective evidence is provided that the relationship between the natural parents and adopted child changed subsequent to the adoption. Further, the adoptive parent often leaves the residence at some point after the adoption, sometimes for years, while the natural parents and adopted child continue to live together.
In both Matter of Repuyan, supra, and Matter of Cuello, 20 IN Dec. 94 (BIA 1989), we concluded that such adoptions must be evaluated in light of the congressional intent to recognize only bona fide adoptive relationships. To facilitate congressional intent, we determined in Matter of Cuello, supra, that the residence requirement of section 101(b)(1)(E) of the Act means more than simply that the adopted child and adoptive parent live together in the same residence for 2 years. We determined that, under the circumstances described above, the adoptive parent has the burden of establishing primary parental control during his or her residence with the adopted child. Id. In order to establish parental control, the petitioner may submit competent objective evidence that the adoptive parent owns or maintains the property where the child resides, provides financial support and daily care, and assumes responsibility for important decisions in the child's life. Id. A description of the relationship between the adopted child and her natural parents subsequent to the adoption must also be provided. Id.
We disagree with the petitioner's assertion that an examination of the nature of the parties' residence adds a requirement to section 101(b)(1)(E) of the Act. Rather, we are interpreting the residence requirement of that section.
In the instant case, the petitioner concedes that she resided with the beneficiary and her natural mother in the home of the beneficiary's natural mother. No competent objective evidence was proffered to establish that the petitioner exercised primary parental control during the parties' residence with one another. See Matter of Cuello, supra; Matter of Repuyan, supra. We accordingly find that the district director had good and sufficient cause to issue the notice of intention to revoke and we agree with the district director that the evidence the petitioner submitted in response to that notice is insufficient to establish compliance with the 2-year residence requirement of section 101(b)(1)(E) of the Act. Inasmuch as the basis for revocation alleged in the notice has not been overcome by the petitioner, the appeal will be dismissed. See generally Matter of Estime, 19 IN Dec. 450 (BIA 1987).
ORDER: The appeal is dismissed.