Ruling Nov 21, 2001

[excerpt] See complete redacted copy attached

DISCUSSION: The Officer-in-Charge (OIC), Ho Chi Minh City, denied the visa petition to classify the beneficiary as an immediate relative, and the matter is now before the Associate Commissioner for Examinations on appeal. The appeal will be dismissed.

The petitioner filed the Petition to Classify Orphan as an Immediate Relative (Form 1-600) with the OIC on January 12, 2001. The petitioner is a 45-year-old married citizen of the United States. The beneficiary is one year old at the present time and was born in Ho Chi Minh City, Vietnam on September 5, 2000. The record reflects that the petitioner completed the Vietnamese adoption procedures on January 10, 2001.

The OIC denied the petition after determining that the adoption was invalid, as it was "fraudulently conducted by and documented in the name of a woman other than the true mother." Through an investigation, the OIC determined that the official adoption papers had been executed in the name of the birth mother's sister. Accordingly, the OIC determined that there was no valid adoption and that the beneficiary did not qualify under the definition of "child" at section 101 (b) (1) (F) of the Immigration and Nationality Act (the Act). The OIC also determined that the beneficiaryfs biological mother sold the beneficiary to a Vietnamese adoption facilitator, Asian Orphans of Hope, in violation of 8 C.F.R. 204.3 (i) .

On appeal, counsel submits a brief and additional evidence. The petitioner does not contest the OIC's finding that the adoption documents were executed in the name of the birth mother's sister. However, counsel asserts that there was no fraud and that the. adoption remains valid under Vietnamese law. Regarding the alleged "baby buying," counsel asserts in part that the OIC's decision was improper as it was not based on evidence contained in the record of proceeding.