A-6591246, 7
Decided by Board January 5, 1948 Ruling by Attorney General April 7, 1948
Adopted child — Entitled to benefits of Act of December 28, 1945 — (Public Law 271, 79th Cong.).
Act (as amended July 22, 1947) expired December 28, 1948. But see act of Aug. 19, 1950, as amended March 19, 1951.
A child lawfully adopted by its parents meets the requirements of the word "child" as used in the act of December 28, 1945.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
(Minor alien) — Act of 1924 — No immigration visa.
(Adult alien) — Act of 1917 — Accompanying alien.
BEFORE THE BOARD
Discussion: This case is before us on a motion to reconsider our decision of March 28, 1947.
The aliens are a 30-year-old mother and her 5-year-old adopted child. They arrived in the United States in January 1947 and applied for admission under the act of December 28, 1945, Public Law 271, as the wife and child of an American citizen veteran. The Board of Special Inquiry found that the child was not entitled to the benefits of Public Law 271 and excluded her as an immigrant not in possession of an immigration visa. Because the U.S. Public Health Service certified that the child was helpless because of infancy, the mother was excluded as an accompanying alien under section 18 of the act of February 5, 1917. The Acting Commissioner affirmed the excluding decision and we, on March 28, 1947, approved, without comment, his decision.
There is no question that the child alien has been lawfully adopted by the adult alien and her citizen husband. The testimony taken at the hearing before the Board of Special Inquiry showed that the adoption occurred in China in either 1944 or 1945. However, on August 27, 1947, while the aliens were at large on parole, and in order to remove any doubt as to the legality of the Chinese adoption, the District Court of the Second Judicial District of the County of Bernalillo, N. Mex., pursuant to a petition filed by the adult alien and her husband, entered an order decreeing the minor child adopted by the petitioners.
The decision of the Acting Commissioner holding that adopted children are not entitled to the benefits of Public Law 271 was based on an opinion of the General Counsel of the Immigration and Naturalization Service, dated May 14, 1946 (56013/373-A). In that opinion the General Counsel concluded that the definitions appearing in section 28 of the Immigration Act of 1924 applied to Public Law 271. Section 28 (m) of the Immigration Act of 1924 defines the term "child" not to include "a child * * * by adoption unless the adoption took place before January 1, 1924." Accordingly, if we accept the conclusion reached by the General Counsel, we would have to reaffirm our prior decision, since the minor alien in this case was adopted subsequent to January 1, 1924.
The specific question considered by the General Counsel in that opinion was whether or not parties to proxy marriages were entitled to the benefits of Public Law 271. In holding that they were not, the General Counsel concluded that the definitions in section 28 of the Immigration Act of 1924 applied to Public Law 271.
We do not, however, accept the General Counsel's conclusion. We do not think that Congress intended that the definitions in the Immigration Act of 1924 governed in administering Public Law 271. On the contrary, we think that only by granting adopted children the benefits of Public Law 271 can the intent of Congress be effectuated.
In reaching his conclusion, the General Counsel stressed the strong congressional policy behind the definitions of "wife" and "husband" in section 28 (m) of the Immigration Act of 1924. We argued that section 28 (m) was inserted into the 1924 act because Congress wanted to eliminate the possibility of citizens and lawfully resident aliens fraudulently entering into proxy or "picture" marriages with aliens residing abroad for the purpose of gaining an advantage under the immigration laws. Presumably the same argument would apply with respect to the definition of "child" in section 28 (m). The General Counsel believes that because of this strong policy argument Congress must have intended that the definitions in the Immigration Act of 1924 were to apply to all "subsequent enactments unless a contrary intent is clearly expressed."
But we reject this argument. In the first place, the first four words in section 28 of the 1924 act read, "As used in this Act." This language alone, we think, exposes the weakness in the General Counsel's first argument. Secondly, we must remember that section 19 (c) was added to the act of February 5, 1917, by the Alien Registration Act of 1940, enacted long after the effective date of the Immigration Act of 1924. Yet it has always been held that adopted children and adoptive parents are entitled to the benefits of section 19 (c), notwithstanding that there is no language in the alien registration act expressly bringing these classes within the benefits of the suspension provisions.
The General Counsel's second argument is that Public Law 271 is not an independent statute and that it is so related to the Immigration Act of 1924 that the definitions in the latter act must necessarily apply. He points out that under section 1 of Public Law 271 the documentary requirements of all the immigration laws and those provisions of section 3 of the act of February 5, 1917, excluding physically and mentally defective aliens, are waived. He further points out that section 1 then goes on to say that alien spouses and children shall be admitted "if otherwise admissible under the immigration laws." The General Counsel believes that the quoted language "would seem to bespeak an insistence upon the satisfaction of requirements not specifically excepted." And then, to reinforce his belief, he quotes section 2 of Public Law 271 under which all aliens admitted under section 1 are deemed to be nonquota immigrants as defined in section 4 (a) of the Immigration Act of 1924.
We see nothing in the words "if otherwise admissible under the immigration laws" or in the language of section 2 of Public Law 271 that indicates any intent on the part of Congress that the definitions in the Immigration Act of 1924 apply to Public Law 271. We think it clear that the quoted words mean that alien spouses and alien children must establish their admissibility under all the immigration laws except for those provisions specifically waived. There is no immigration law which excludes adopted children. In fact, there is no law that prevents adopted children from obtaining immigration or travel documents. The Immigration Act of 1924, in its principal application to adopted children, limits their right to obtain nonquota or preference-quota immigration visas on the basis of their relationship to their adoptive parents, if the adoption occurred after January 1, 1924. Under Public Law 271, children of citizen veterans do not need documents.
Nor do the provisions of section 2 of Public Law 271 lend any support to the General Counsel's conclusion. We fail to see how the reference to section 4 (a) of the Immigration Act of 1924 leads to the conclusion that the definitions in section 28 of that act apply to Public Law 271. So far as we can see, the only purpose for inserting the reference to section 4 (a) of the Immigration Act of 1924 in section 2 of Public Law 271 was to provide a means of classifying aliens admitted to the United States under Public Law 271.
We now turn to our affirmative reasons for concluding that adopted children are entitled to the benefits of Public Law 271. In the first place, it has always been held that an adopted child is a "child" within the scope of the act of February 5, 1917. For example, an adopted child, under 16 years of age, accompanying his adoptive father or mother to the United States, is not subject to the head tax imposed by section 2 of the act of February 5, 1917. (See C.O. letter of August 27, 1937, 55608/513.) Again, as we pointed out above, adopted alien children are eligible for suspension of deportation on the basis of their relationship to their adoptive parents and, conversely, adoptive alien parents are eligible for suspension on the basis of their relationship to their adopted minor children.
Secondly, under the Chinese exclusion laws and the Chinese treaties, adopted children of either a Chinese alien merchant or an American citizen merchant of the Chinese race were entitled to admission to the United States just as though they were natural children. Ex parte Fong Yin, 134 Fed. 938 (S.D.N.Y. 1905); U.S. v. Lee Chee, 224 Fed. 447 (C.C.A. 2d, 1915); U.S. ex rel. Shue Quey v. Pierce, 285 Fed. 663 (S.D.N.Y. 1922); Ex Parte Kwock Seu Lum, 287 Fed. 363 (N.D. Calif. 1922); Johnson v. Shue Hong, 300 Fed. 89 (C.C.A. 1st, 1924); Tillinghast v. Chin Won, 25 F. (2d) 262 (C.C.A. 1st, 1928). But cf. Mar Fow Lun v. Nagle, 27 F. (2d) 129 (C.C.A. 9, 1928).
The only exception to the general rule that under the immigration laws an adopted child is on a par with a natural child appears in the Immigration Act of 1924. But again, as we pointed out above, under section 28 this exception is limited to the 1924 act and is also limited to adoptions subsequent to January 1, 1924. In view of these considerations, we cannot see how, in the absence of specific statutory language or clear and convincing legislative history, we can hold that an adopted child is not entitled to the benefits of Public Law 271. Certainly the language of this act does not except adopted children from its benefits. The legislative history shows no disposition upon the part of Congress to limit the act to natural children. The entire statutory scheme, we think, shows that Congress wanted to expedite the admission to the United States of families of American veterans. An adopted child is as much a part of a family as is a natural child. Any other interpretation would unnecessarily restrict the benefits of Public Law 271 which, we must remember, was remedial legislation and, for that reason, must be liberally construed.
Order: Our order of March 28, 1947, is withdrawn, the Acting Commissioner's order of March 25, 1947, is reversed and
It is ordered that the aliens be admitted to the United States for permanent residence under Public Law 271.
As a question of difficulty is involved, the Board, pursuant to section 90.12, title 8, Code of Federal Regulations, certifies its decision and order to the Attorney General for review.
The decision and order of the Board of Immigration Appeals, dated January 5, 1948, in the above-named cases, are hereby approved. The cases of these aliens are within the legislative intention expressed by the Congress in passing the legislation which became Public Law 271, Seventy-ninth Congress (December 28, 1945). Relief in these cases will serve to reunite in the United States a veteran and his family, one of whom is a child lawfully adopted by her parents.