Ruling July 3 2001

[except - see complete ruling attacheed]

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 sustained and the petition will be approved.

The petitioner filed the Petition to Classify Orphan as an Immediate Relative (Form 1-600) with the OIC on March 5, 2001. The petitioner is a 34-year-old unmarried citizen of the United States. The beneficiary is 8-months old at the present time and was born in Ho Chi Minh City, Vietnam on October 27, 2000. The record reflects that the petitioner adopted the beneficiary on February 28, 2001 in Vietnam.

The OIC denied the petition pursuant to 8 C.F.R. 204.3(i) after determining that the beneficiary's biological mother sold the beneficiary to an adoption facilitator, Asian Orphans of Hope, located in Vietnam.

On appeal, counsel submits a brief and additional evidence. In part, counsel asserts that the OIC's decision was improper as it was not based on evidence contained in the record of proceeding.