WONG

Interim Decision #2553

MATTER OF WONG

In Deportation Proceedings
A-31222150

Decided by Board January 31, 1977
(1)Respondent born October 14, 1944, was admitted to the United States for permanent
residence on April 1, 1973, as the unmarried minor child of a lawful permanent resident
on the basis of an Appatittha (ceremonial) adoption whida took place in Burma. The
Service seeks respondent's deportation under section 241(a)(1) of the Immigration and
Nationality Act as an alien excludable at entry under section 212(a)(14) of the Act for
lack of a valid labor certification based on the fact that the adoption was not registered
so as to be classified as a Kittima adoption (the only adoption now considered valid for
immigration purposes) until Apri122, 1969, after beneficiary- passed the age of 14 years.
(2) Notwithstanding that an Appatittha adoption was declared to be invalid for immigra-
tion purposes in Matter of Kong, 14 1. & N. Dec. 649 (BIA 1974), the Board will not
apply that holding retroactively to aliens who were admitted for lawful permanent
residence prior to the date of that decision (March 26, 1974). and the instant deportation
proceedings brought against respondent must be terminated.
CHARGE:
Orden Act of 1952—Section 241(a)(1) (8 U.S.C. 1251(a)(1)1--Excludable at entry under
section 212(a)(14); no labor certification
ON BEHALF OF RESPONDENT: Thomas N. Saldin, Esquire
4676 Admiralty Way
Marina Del Hey, California 50291
BY: Wilson, Acting Chairman; Torrington, Maniatis, and Appleman, Board Members

In a decision dated May 23, 1975, the immigration judge found the
respondent deportable as charged and granted him the privilege of
voluntary departure from the United States in lieu of deportation. The
respondent has appealed. The appeal will be sustained, and the proceed-
ings will be terminated.
The respondent was born in Burma on October 16, 1944. He was
admitted to the United States for permanent residence on April 1, 1973,
as the unmarried minor child of a lawful permanent resident on the basis
of his adoption in Burma. He was the beneficiary of a visa petition
approiied by the District Director, and a visa was issued by an American
Consular official pursuant to 8 C.F.R. 204.1(a).

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On March 25, 1974, almost twelve months after the respondent had
been admitted for permanent residence, we rendered our decision in
Matter of Kong, 14 I. & N. Dec. 649 (BIA 1974), holding that an
Appatittha adoption, which is a ceremonial adoption, cannot be con-
sidered a valid adoption for immigration purposes. That holding was
reaffirmed in Matter of Chang, 14 I. & N. Dec. 720 (BIA 1974).
The Service seeks the respondent's deportation under section
241(a)(1) of the Immigration and Nationality Act by reason of his
excludability at entry under section 212(a)(14) of the Act for lack of a
labor certification. The sole basis .for this charge is that there was no
registration of the adoption sufficient to classify it as a Kittima adoption
(the only adoption under Burmese law recognized for immigration pur-
poses) until April 22, 1969, well after the respondent turned 14 years of
age. There has been no allegation of fraud or misrepresentation on the
part of the respondent in obtaining his visas or in entering the United
States.
As we noted earlier, the respondent was admitted to the United
States for permanent residence almost twelve months prior to our
decision in Molter of Kong, supra We have held that the only adoption
in Burma under the Burmese Buddhist Law that will be recognized for
immigration purposes is the Kittima adoption. However, the respon-
dent was adopted within Burmese law under an Appatittha adoption.
See Matter of Kong, supra. The respondent was publicly taken into the
home of his adoptive parents in 1947, shortly before his natural mother's
death and with her consent. The record indicates that he lived from that
time on with his adoptive parents and has been treated and recognized
as one of the family. The record also contains a copy of a notarized
"Declaration of Adoption" executed on April 22, 1969, by the respon-
dent's adoptive parents. This declaration recites that on August 2, 1947,
the respondent's adoptive parents openly declared the adoption of the
respondent in the presence of invited guests with the consent of the
respondent's natural mother.
At the time the respondent was admitted for permanent residence we
had not yet had occasion to set forth our view on adoption in Burma.
There was, at that time, the plausible legal argument, based on certain
oi our decisions involving Chinese adoptions, that informal adoptions in
Burma were sufficient for immigration purposes. See e.g., Matter of Ng,
14 I. & N. Dec. 135 (BIA 1972); Matter of Kwok, 14 I. & N. Dec. 127
(BIA 1972); Matter of Yue, 12 I. & N. Dec. 747 (BIA 1968). We have
since repudiated that view. Matter of Kong, supra. Nevertheless, we
are not willing to apply Matter of Kong, supra, retroactively to aliens
who were admitted for lawful permanent residence prior to the date of
that decision.
Under the peculiar circumstances of the present case, the Service has

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not established that the respondent was excludable at the time of his
entry. Consequently, the proceedings must be terminated.
The appeal will be sustained, and the proceedings will be terminated.
ORDER: The appeal is sustained, and the deportation proceedings
are terminated.

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