VP 15-1127.
Decided by Board June 9, 1955.
Preference quota status under section 203 (a) (4) of Immigration and Nationality Act — Proxy adoption.
(1) In the absence of fraud or irregularity in the adoption process, an adoption in Germany valid under German law should be recognized as valid for purposes of conferring preference quota status on the adoptive child under section 203 (a) (4) of the Immigration and Nationality Act, although the adoptive parents, residents of Texas, did not appear before the German court and acted through a representative.
(2) Foreign decrees of adoption are recognized by the State of Texas on principles of comity despite the fact that the method of adoption may be radically different from that provided in its own adoption laws.
BEFORE THE BOARD
Discussion: The matter comes forward on appeal from the order of the District Director, El Paso District, dated September 17, 1954, denying the visa petition on the ground that the adoption of the beneficiary is not a valid adoption to confer preference status under the Immigration and Nationality Act for the reason that neither the petitioner nor his wife was present at the adoption proceedings.
The petitioner, a native-born citizen of the United States, seeks preference status under section 203 (a) (4) of the Immigration and Nationality Act on behalf of the beneficiary, born in Germany on May 29, 1951. It is alleged that the beneficiary is the adopted son of the petitioner. In support thereof there has been submitted a document entitled "Deed of Adoption," dated July 15, 1954, bearing the official seal of the local court, the Amtsgericht at Frankfurt am Main, Germany, attesting to the adoption on June 15, 1954, between the petitioner and his wife E----, through Mrs. G---- C---- at Frankfurt/M and the minor, W---- D---- E----, through the Stadtisches Jugendamt Frankfurt/M (Municipal Youth Welfare Office) as legal guardian ex officio contracted on the 9th of March 1954 as per legal instrument No. 116/54 in accordance with paragraph 1741 of the German Civil Code, and the provisions of law of the State of Texas governing infants' adoption.
It is well settled by the authorities that by adoption a status is fixed similar to that arising from marriage, that questions affecting the existence of such status and the method of its creation are controlled by the law of the state or nation which creates it, and that the status so created by adoption will be recognized under rules of comity in other states even though the form or procedure by which the status was created under foreign law was different from that declared to create it under the law of the other jurisdiction. The State of Texas follows this general rule and it has been held that the right of a child adopted in a foreign land is not affected by the fact that the method of adoption under foreign law is radically different; and that the status created by adoption under the laws of a foreign state will be recognized in other states on principles of comity. In the instant case there has been presented a decree or deed of adoption under the seal of the local court, the Amtsgericht, at Frankfurt am Main, which appears to be regular and valid on its face and presumably was regularly entered and constitutes a valid court decree of adoption. There would appear to be present no considerations or public policy which would make recognition of this German court decree of adoption repugnant to any principles of public morals or abstract justice in this country, or more particularly, in the State of Texas. Additionally, there is judicial authority in the State of Texas to accept and accord recognition to such a foreign decree of adoption.
1 American Jurisprudence, secs. 10, 67-69; American Law Institute's Restatement of the Law on Conflicts of Law, sec. 143; 1 Corpus Juris 1402; 1 Ruling Case Law 592, 618.
Martinez v. Gutierrez, 66 S.W. 2d 678 (1933).
We have, however, been provided with the benefits of research conducted by the Library of Congress on the question of the validity of an adoption by proxy or in absentia in Germany. Section 1741 of the German Civil Code provides that a person who has no legitimate descendants may adopt another by contract with the latter. Such a contract requires the confirmation of the competent court. In a comment on this section it is pointed out that the requirements that an adopter shall have no legitimate descendants have been relaxed through the conditions following World War II; and that in order to find homes for orphaned children and to enable them to enjoy proper family ties, legislation was passed in the American and British zones of Germany to dispense with this requirement.
The most pertinent provision appears in section 1750 of the German Civil Code which provides as follows:
Section 1750. The contract of adoption may not be entered into through an agent. If the adopted child has not completed his fourteenth year of age, his statutory agent may enter into the contract subject to the ratification of the Guardianship Court.
The contract of adoption must be entered into before a court or notary in the simultaneous presence of both parties.
The memorandum supplied by the Library of Congress comments on the requirement of the second paragraph of section 1750 of the German Civil Code as to the simultaneous presence of the parties to the contract. Apparently agreement exists on the question that "representation in the intention" is inadmissible. However, the views differ on the point whether "representation in the declaration of the intention" may be admitted. Authorities are cited for the proposition that representation in the declaration of the intention is admissible since what is involved is a mere transmittal on the part of a messenger, or, a transfer of the declaration given by the natural parents, thus constituting merely a representation in the declaration of the intention.
Other pertinent provisions of law are cited, including the Law on Matters Subject to Non-Adversary Procedure of May 17, 1898, section 65 of which declares that the Amtsgericht shall be competent to confirm any contract whereby a person is adopted. Law No. 10 of the Military Government, published in the Military Government Gazette, Germany, United States Area of Control, Issue H, January 16, 1948, page 1, requires that in any adoption case in which either of the prospective adopting parents is a national of the United Nations and in which a German court exercises jurisdiction, it is ordered that wherever the law of the state of the adopter requires an examination of the merits of the adoption including an investigation as to the qualification of the adopter, the court shall comply with such requirements, unless directed otherwise by Military Government. Such investigation of the qualifications of the adopter is required to be made by an agency duly authorized by the Military Government, and investigation as to the person to be adopted is to be made by the proper German authorities.
It would appear from the authorities cited that precedent exists for the recognition of the type of adoption which took place before the local German court or Amtsgericht and that the law required safeguards in the form of investigations of both the adopter and the adoptee. There is no evidence of any fraud or irregularity in the adoption process and in view of its seeming validity it should be accorded full recognition as the decree of a foreign court under familiar principles of comity. Accordingly, the decree of adoption will be recognized and the petition approved for fourth preference.
See unreported Matter of P----, VP-13-10481 (March 18, 1955), involving resident of California who appeared before Italian Vice Consul at Los Angeles, California, during course of an adoption procedure approved by an Italian court; also, unreported Matter of B----, VP 07-11110 (January 14, 1955), in which resident of Ohio consented to an adoption before Greek consul at Chicago, Illinois, and was represented by an attorney in fact during the adoption proceedings at Samos, Greece.
Order: It is ordered that the visa petition be approved for preference under section 203 (a) (4).