6921223
Decided by Board April 29, 1949
Adopted child — Entitled to benefits of Act of December 28, 1945 (Public Law 271, 79th Cong.) — Validity of adoption — Evidence.
Act expired December 28, 1948. See 3 IN Dec. 131.
1. Adoption in accordance with article 1079 of the civil code of the Republic of China, book IV, will be recognized as valid and as meeting the requirements of the word "child" as used in the act of December 28, 1945.
2. Minor discrepancies, satisfactorily explained, are not sufficient to overcome the claimed relationship, otherwise proven by competent evidence.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
Executive Order 8766 — No passport.
BEFORE THE BOARD
Discussion: This case is before us on appeal from an order of the Assistant Commissioner dated November 4, 1948, wherein the recommendation of the Board of Special Inquiry was reversed and the appellant excluded. The majority of the Board of Special Inquiry held on May 27, 1948, that the record as a whole adequately supported appellant's contention that he is the validly adopted son of a citizen veteran of World War II.
Appellant W---- M---- G---- arrived at San Francisco, Calif., aboard the S.S. General Gordon on February 9, 1948, accompanied by L---- S---- P---- (who was admitted as the alien wife of a citizen veteran under Public Law 271) and W---- Q---- H----. These latter persons state that the appellant is a war orphan whom they adopted as their son. L---- S---- P---- testified that she gave birth to a son on December 31, 1933, but this son died in 1936; she did not notify her husband of the death of their son and thereupon secured permission to adopt a war orphan who resembled her dead blood son in age and looks. The Ai Sun Orphanage (apparently a government maintained orphanage) allowed this adoption in 1940 without the execution of papers or documents. L---- S---- P---- thereafter treated the child as her own, giving him her dead child's name and birth date (since his exact name and age were unknown). According to this arbitrary birth date of December 31, 1933, appellant would now be 15 years old; however, the majority view of the Board of Special Inquiry was that the child appeared to be approximately 10 to 12 years of age, although his parents at that time regarded him as 14. It was also the majority opinion that the proceedings served to establish that the appellant had in fact resided continuously with L---- S---- P---- since he first had any clear and complete recollection of his surroundings (at approximately the age of 2 to 4 years). Observations of appellant and L---- S---- P---- during the hearing proved that they had had a long, close, intimate relationship; L---- S---- P---- was greatly concerned over the fate of the child, stating that if he were excluded, she would return with him to care for him, for he had no one to turn to and would again be placed in an orphanage.
The Immigration Service, in the decision of the Assistant Commissioner, places great weight on the discrepancies in the statements of the parties involved concerning the exact time that the father was informed that the child was not his blood son. (The father was uncertain as to whether he was so advised before he left China, on the high seas, or upon arrival at the port of San Francisco. However, since both mother and child state that he was notified before their departure from China, we accept the latter view as the probable explanation.) The Service also emphasizes the fact that W---- Q---- H---- first attempted to bring in the child as his natural son, then withdrew the application, and later sought to have his entry expedited as his adopted son. Some of this confusion may have been the result of failure to understand the interpreter or in the translation of the testimony from one language to the other. In addition, the Board of Special Inquiry was most insistent that the transcript should refer to the child as "my adopted son" not as "my son" which was the habit of the parents; the insertion of the word "adopted" in the above context was not however, effected consistently throughout the record. Counsel points out that prior to the decision in the Matter of W---- M---- C---- and W---- O---- W---- (April 7, 1948, 6591246 and 6591247), the policy of the Immigration Service had been to regard adopted children as inadmissible under Public Law 271; report of the above-mentioned ruling, which served to reverse prior policy, did not become common knowledge in the environs of the San Francisco office for many weeks thereafter. On April 23, counsel decided to press the application in the hope that the child might be permitted admission on parole so that his status might be adjusted and an adoption of record effected here; however, on May 6, 1948, counsel states that he learned of the W---- M---- C---- ruling and thereafter felt it unnecessary to attempt adoption here in the United States.
With regard to the question of adoption, we make reference to the civil code of the Republic of China, book IV, "Family"; articles 1074 and 1079 are relevant to the question involved herein.
Information regarding the Chinese law of adoption was furnished by the Chinese Consul General at San Francisco and was incorporated in the present record as exhibit 10.
ARTICLE 1074: Where a married person adopts a child, he must do so jointly with his spouse.
ARTICLE 1079: Adoption must be effected in writing unless the person has been brought up as a child of the adopter since infancy.
Since there are no records available as evidence of the adoption of this child in 1940, it must be shown that the instant case comes within the exception to the rule laid down in article 1079 that the adoption must be effected in writing to be binding. Furthermore, the question of whether or not the child was jointly adopted by both parents is also of importance in the present situation.
Counsel contends, in his brief, that appellant —
was lawfully adopted, inasmuch as his adoptive mother took him out of an orphanage in China for that purpose; his adoptive father consented to such adoption as soon as the facts were made known to him; and the appellant was brought up as a child of the adopter since infancy. Those facts, established by the evidence of record, appear to constitute full compliance with the requirements for a lawful adoption in China pursuant to articles 1074 and 1079 (p. 1, supplemental brief).
Counsel states that the Commissioner in his order of November 4, 1948, "fails to specifically find wherein the evidence fails to show compliance with each section or with the specific requirements of either section." Counsel further states that "Nothing in the statute specifies the manner or place in which such consent or participation in joint adoption must be manifested * * *;" "* * * * he need only be shown to have consented to the adoption or to have accepted such as his adopted child. Approval or acceptance may be found in acts or words." Counsel also suggests that the wife should be considered as the ostensible agent of the husband in the adoption transaction, since both she and the child were dependent upon him for support. On page 6 it is stated, "Where an ostensible agent acts for the principal, the principal is not bound unless he later ratifies the act. When he does ratify with full knowledge of facts, the ratification relates back to the time of the original act."
It has been determined by the Attorney General (in approving the decision of this Board in W---- M---- C---- and W---- O---- W---- cases) that the general pattern of immigration laws has come to regard adopted children within the term "children" as used in various statutes. The 1924 act is an admitted exception to this policy. However, as we pointed out in the W---- M---- C---- decision, supra, the legislative history of Public Law 271 shows that Congress did not wish to limit the benefits of the law to natural children, since the purpose of the law was to enable families of American veterans to be readily reunited in the United States.
Hence, the resolution of the question involved herein hinges upon the interpretation of the portions of the Chinese adoption statutes mentioned above. Since we have no information concerning the way in which Chinese courts have construed article 1079, we must act in accordance with the rules of statutory construction prevailing under the laws of the United States. It was stated in McManus v. Red Salmon Canning Co., 37 Col. App. 133, 173 Pac. 1112, 1948 that "if the statute has never been construed in the State of its origin, the court will construe it as it would a like statute of its own State."
The basic rule regarding the treatment of statutes was first formulated by Lord Coke in 1564 and frequently has been rephrased and restated by courts; in effect, he stated that it is necessary to ascertain the intent and this is to be accomplished by reference to the words (and their natural meaning under the circumstances) and the object which the legislators had in view. However, "Where the language is plain and admits of no more than one meaning the duty of interpretation does not arise and the rules which are to aid doubtful meanings need not discussion" ( Caminetti v. United States, 242 U.S. 470, 1916). (Such is the situation in the instant case.) It has long been the rule that the words of a statute will be accorded the meaning commonly attributed to them in their ordinary and natural sense ( United States v. Cooper Corp. et al., 312 U.S. 600, 1941). Such words should be considered in their recognized meaning when they have not acquired a technical or special legal meaning. The aim of judicial construction of the statute is to discover the connotation which the legislature attached to the words, phrases and clauses employed so that the provisions may be understood as they were intended to be read.
Heydon's Case, 3 Co. Rep. 72, 76 Eng. Repr. 637.
While it is quite true that the word "infancy" acquired a special meaning at common law, such a meaning cannot be attributed to the word outside the realm of Anglo — American common law. And since very little is known about Chinese law (several general treatises are available in the French language) we will rely on ordinary meaning of the word in English.
Webster's New International Dictionary (second edition, unabridged, 1934) defines "infancy" as the "state or period of being an infant or baby;" "early childhood" or "babyhood." The same dictionary defines the word "since" as "after" or "subsequently to." Hence, the meaning of article 1079 is that the adoption of a child in China must be concluded in writing, unless the person to be adopted was brought up as the child of the adopter since subsequently to babyhood. Since the appellant began living with L---- S---- P---- in 1940 when he was approximately 2 to 4 years old, it can certainly be said that appellant has lived with her "since infancy" or babyhood.
Therefore, the words in the Chinese statute before us are to be taken in their ordinary and generally recognized meaning, since such a meaning does not obviate the purpose of the statute nor cause an undesirable or contradictory result. ( State Tax Commission v. Allied Mortgage Cos., Inc., 175 Md. 357, 2 A. (2d) 399, 1938; Cote v. Bachelder-Worcester Co., 85 N.H. 444, 160 A. 101, 1932). Furthermore, it is well-established judicial policy that statutes on adoption should be given a liberal interpretation to secure homes and parental care for unfortunate children ( Drake et al. v. Drake et al., 328 Mo. 966, 43 SW. 2d 556, 1931; Purinton et al. v. Jamrock, 195 Mass. 187, 80 NE. 802, 1907). In view of the foregoing, we conclude that appellant is the adopted child of L---- S---- P---- and W---- Q---- H---- and admissible under Public Law 271 as the son of a United States citizen veteran.
Courts must follow the plain words of the statute as to which there is no room for construction. ( Commissioner of Immigration v. Gottlieb, 265 U.S. 310, 1924).
Order: It is hereby ordered that the appeal be sustained and the appellant be admitted as the child of a citizen of the United States pursuant to provisions of Public Law 271.