VP 3-30405
Decided by the Board April 9, 1954
Preference quota status — Section 203(a)(4) of the Immigration and Nationality Act — Adoption at foreign consulate in this country of illegitimate son residing abroad not recognized.
The adoption of an illegitimate son residing in Portugal by a naturalized United States citizen residing in New Jersey, formerly a native and citizen of Portugal, which is effected at the Portuguese consulate in New York, N.Y., is not recognized for the purpose of according preference quota status under the immigration laws in the absence of any showing that such a procedure would constitute a valid adoption insofar as either the State of New York or the State of New Jersey is concerned. (The facts in this case differ widely from those presented in Matter of R----, Int.Dec. No. 471.)
BEFORE THE BOARD
Discussion: The matter comes forward on appeal from the order of the district director, New York, dated July 20, 1953, denying the visa petition on the ground that the beneficiary is not considered to be a son of the petitioner within the meaning of section 203(a)(4) of the Immigration and Nationality Act and hence not entitled to preference quota status.
The petitioner, a native and formerly a citizen of Portugal, became naturalized as a citizen of the United States on September 21, 1938, and is a resident of the State of New Jersey. He seeks preference quota status on behalf of the beneficiary under the provisions of section 203(a)(4) which provides for a preference to, among others, sons of citizens of the United States. The beneficiary is a native and citizen of Portugal, born May 3, 1919, and married. The beneficiary appears to be the illegitimate son of the petitioner.
It is asserted by petitioner that the beneficiary became his adopted son by virtue of a procedure at the Portuguese consulate in the city of New York, N.Y., on May 15, 1953 by which the petitioner adopted the beneficiary under the provisions of the Portuguese law. The issue therefore is whether the alleged adoption proceeding constitutes a valid adoption for immigration purposes.
An adopted son is eligible for preference status under the provisions of section 203(a)(4) of the Immigration and Nationality Act. Matter of R----, VP 3-18004, Int.Dec. No. 471 (1953). In that case however the beneficiary was adopted by the petitioner in accordance with the provisions of the civil code of Italy while both parties were in Italy.
In the instant case however at the time of the alleged adoption, the beneficiary was in Portugal while the petitioner was a citizen of the United States and a resident of the State of New Jersey who proceeded to the Portuguese consulate at New York City for the purpose of adopting this beneficiary. It appears therefore to be an attempt to perform an adoption in the United States by going to the consulate of the country of the birth of the beneficiary. The theory apparently is that the fiction of the doctrine of extraterritoriality extends to this country for the purposes of adoption. No authority has been cited to sustain such a proposition.
In the United States adoption is unknown to the common law and exists only by statute. According to some authority and probably the better rule, foreign adoption statutes have no extraterritorial effect. States safeguard the adoption procedure with many precautions and the procedure laid down by statute must be strictly followed.
2 C.J.S. 459.
New Jersey Statutes Annotated, Adoption, sec. 9:3-1 to 9:3-11; McKinney's Consolidated Laws of New York Annotated, Adoption, art. VII, sec. 109 to 118-a (Domestic Relations Law).
In considering the provisions of the proposed Immigration and Nationality Act of 1952, the subcommittee of the Committee on the Judiciary gave considerations to provisions of the new immigration law regarding a better method of keeping families of immigrants together by affording a more liberal treatment of children. This subcommittee stated that it was necessary to provide some safeguard in the law to prevent a large number of fraudulent adoptions consummated solely for the purpose of conferring nonquota status.
Report of the Committee on the Judiciary pursuant to S.Res. 137, S.Rept. 1515 (81st Cong., 2d sess.), p. 468.
In the instant case, the situation presented is that of a naturalized citizen of the United States, a resident of the State of New Jersey, who allegedly completed a valid adoption under Portuguese law by complying with the provisions of the Portuguese law before the Portuguese consulate in the city of New York. Absent any showing that such a procedure would constitute a valid adoption insofar as either the State of New York or New Jersey is concerned, it is not believed that recognition may be given this alleged adoption so as to confer preference status under the Immigration laws. It is believed that the facts of the case are so widely different from those presented in Matter of R---- ( supra), as to make that decision inapplicable. Accordingly, the visa petition should be denied.
Order: It is ordered that the appeal be and the same is hereby dismissed.