Interim Decision #1541
Mayan or TsDE
In Visa Petition Proceedings
A-14048590
"Decided by Board September 13, and December 16, 1965
Petition by a naturalized U.S. citizen, born out of wedlock, to accord preference
statue 'under section 202(a) (2), Immigration and Nationality Act, as
amended, on behalf of beneficiary, her stepmother through marriage to her
natural father when petitioner was 4 years of age, is granted since a valid
stepchild-stepparent relationship exists, petitioner's paternity having been
acknowledged by her natural father shortly after her birth and folkiwing
the death of her natural mother in 1931; a bona fide family unit between
petitioner, beneficiary, and her natural father having existed until petitioner's immigration to the United States in 1953; and dose family ties between
petitioner and beneficiary have continued to the present day. Matter of
IV—, 7 1. & N. Dec. 685, overruled; of. Matto^ of Aloe, Int. Dec. No. 1542.]
BEFORE THE BOARD
The ease comes forward on motion of the petitioner requesting -the
Board to reconsider its prior denial of the visa petition because of
the decision in Nation v. Evenly, 239 F. Supp. 531 (S.D. N.Y.,
1965).
The petitioner, a native of Batavia, West Java, Indonesia, born
on April 12, 1931, female, a naturalized citizen of the United States,
seeks preference status under section 203(a),(2) of the Immigration
and Nationality Act on behalf of the beneficiary, her stepmother.
The beneficiary is a native and citizen of Djakarta, West Java, Indonesia, born on November 8, 1918. The petitioner was born out of
wedlock, her natural mother died in Indonesia on. May 26, 1931, her
natural father acknowledged parentage on June 5, 1931, and tne
natural father married the beneficiary on March 31, 1935, when the
petitioner was about four years of age.
We originally considered this ease on January 24, 1964, on appeal
from the decision of the District Director, Detroit District, dated
November 22, 1963, denying the visa petition for the reason that the
beneficiary is not a parent es defined in section 101(b) (2) of the
Immigration and Nationality Act in that the Petitioner fails to meet
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Interim Decision #1541
the status of a stepchild as defined in section 101(b) (1) (B) of the
Act; and that a child born out of wedlock derives no status as a
stepchild by reason of the marriage of the natural father to a person
other than the child's mother. In affirming this order of the District
Director, we relied on Matter of W—, 7 I. & N. Dec. 685. However,
we remanded the case to explore the possibility of legitimation under
the law which prevailed in Batavia, West Java, Indonesia, which
was the former Netherlands East Indies at the time of the petitiOner's birth. On October 22, 1961 we found that the legitimation process appeared to have been incomplete, since according to Article
275 of the Civil Code for Indonesia, the legitimation of a legally
acknowledged child requires a declaration of the Governor-General
(and at present the President of the Republic of Indonesia) after
consultation with the Supreme Court, and dismissed the appeal.
The term "child" is defined in section 101(b) (1) (B) to include a
stepchild, whether or not born out of wedlock, provided the child had
not reached the age of 18 years at the time the marriage creating
the status of stepchild occurred. In Matter of 1V,
7 I. & N. Dec.
685, we traced the legislation as amended by the Act of September
11, 1917, which at the.same time, in section 101(b) (1) (B), amended
the term "child" to include an illegitimate child, by, to whom, or on
whose behalf, a status, privilege or benefit is sought by virtue of the
relationship of the child to its natural mother. We concluded that
the amendatory legislation was intended to clarify the law so that
a child born out of wedlock in relation to its mother could be included in the term "stepchild" and thereby enjoy the same immigration
status as other stepchildren but the amendment did not call for any
change in the prevailing administrative view that a child born out
of wedlock derives no benefit, status or privilege under the immigration laws in relation to its natural father, and concluded that the
illegitimate child of a father married to a United States citizen was
not the latter's stepchild and could not qualify for nonquota or preference status.
In the case of Nation Esperdy,
239 F. Supp. 531, the court for
the Southern District of New York examined .the legislative history
and concluded that the respective committee reports were not conclusive but tended to suggest conflicting interpretations. In view of
the express congressional policy of keeping family units together,
and in the absence of special language to the contrary, the court
adopted the "plain meaning" rule that when Congress in 1957 defined
stepchild in the broad language of "whether or not born out of wedlock", this definition is to be applied literally, and includes any stepchild previously born illegitimately to the mother or to the father.
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Interim Decision #1541
The Government declined to appeal the decision in Nation v. Es-
perdy, supra. Our prior holding in Matter of W--,
7 I. & N. Dec.
685, is therefore considered overruled.
In the present case the petitioner was born out of wedlock of an
Indonesian father who acknowledged parentage shortly after her
birth in 1931 and who married the beneficiary in 1935 when the petitioner was four years old. The petitioner and the beneficiary therefore are regarded as persons having the status of stepchild and
stepmother respectively under the rule laid down in Nation v. Es-
perdy, supra. The visa petition will be approved.
ORDER: It is ordered that the visa petition be approved for preference status on behalf of the beneficiary.
BEFORE THE BOARD
The case comes forward on motion of the Immigration and Naturalization Service dated October 29, 1965 asking for reconsideration
of the Board's order of September 13, 1965 approving a visa petition
for preference status on behalf of the beneficiary.
The record relates to a visa petition filed by the petitioner, a native
of Batavia, West Java, Indonesia, a naturalized citizen of the United
States, 34 years old, married, female, who seeks preferences quota
status on behalf of her alleged stepmother, a native of Djarkata,
West Java, Indonesia, 47 years old, female. The petitioner in a
sworn statement executed before a Service officer on March 19, 1964
acknowledged that she was born out of wedlock to Sian Kok Lie and
Bo Tan Lie, both natives of the Chinese race. The petitioner's natural mother died in Indonesia (Java) on May 26, 1931, her natural
father acknowledged paternity on June 5, 1931 and the natural
father married the beneficiary, the alleged stepmother, on March 51,
1935 when the petitioner was less than four years of age. Documentary evidence has been submitted to support these allegations.
The visa petition was originally denied by the District Director,
Detroit District, on November 22, 1963 for the. reason that the beneficiary was not a parent as defined in section 101(b) (2) of the Immigration and Nationality Act in that the petitioner failed to meet the
statsi's of a stepchild as defined in section 101(b) (1) (B) of the Act;
and that a child born out of wedlock derives no status as a stepchild
by reason of the marriage -of the natural father to a person other
than the child's mother. On January 24, 1964 we remanded the case
for a statement from the petitioner regarding the religion and race
of herself and of her natural parents and to explore the possibility
of legitimation under the Law which prevailed in Batavia, West
Java, which was the former Netherlands $ast Indies at the time of
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'Interim Decision #1541
- the •etitioner's birth. On October 22,1961 we again considered,the
case and found that acknowledgement of a child under Indonesian
Law is not equivalent to legitimation, since according to Article 275
of the Civil Code of Indonesia of April 90, 1947, ltgitimation of a
legally acknowledged child requires a declaration of the Governor-
- General (at present, the President of the Republic of Indonesia)
after consultation with the Supreme Court. No evidence had been
submitted that this legitimation process had ever been completed
and the appeal was dismissed. (Matter •of The, Int. Dec. No. 1400.)
On September 13; 1965 we reconsidered the case on motion of the
petitioner because of the decision in Nation:v.Esperdy, 239 F. Supp.
531 (S.D. N.Y., 1965). We found that the petitioner and the beneficiary are regarded as persons having the status of stepchild and
stepmother, respectively; ender the riffs laid down in Nation v. &-
pertly and approved the visa petition kw preference quota status on
- behalf of the beneficiary. • . . j i :. • • • : - •
. The: facts in the-ease -bf:.N:ation.v. E.aperdy,.289:F::Supp.. 531,
involved a beneficiaryvalio•mvae.born:out of:svedloe.k intJamaica Ion
-
February 12;1947 and•vtirodias abandoned in infaner by his- natural
:mother... The plaintiffzstepmother commended tering'fbr.the infant
..in41949 and married the -beneficiary's natural. father in 1952 *then
-.the beneficiary was fivelmars-old. Aus plaintiff and her. husband
immigrated- to the United:States in.1.95T.or.:1958. She :bicame . a
naturalized citizen in .1962 ,and immediately thereafter petitioned
for the beneficiary's admittance on a •onquata. visa. -The beneficiary
was-adopted by •the plaintiff and her husband on iluly1.7, 1963 :when
' the beneficiary 'Aves 18 years old.' Concededly,. the adoption was
_without. legal significance for immigration purposes because-under
section itm(b) (1) (E) - a child must be; adopted 'under the age of .14
.years. .• • , - • -
Judge, Feinberg, after noting that the istue:ef.whathir '.stepchild"
excludes a father's illegitimate child but not a mother's, conceivably
might be solved by looking to the statute alone, however turned to
the legislative history in search 'of 'possible further enlightment.
Although conceding, on balance; that Senate Report No. 11157-(85th
Con;., 1st Seas., 1957) more clearly focused on t.14 mother-child
relationship and tended to support the Government's position, the
court concluded that the respective reports, which it set'ont in full,
were.not. conclusive but tended to suggest conflicting interpretations.
The reports and the debates abounded with general indications that
a principal purpose of the- 1957 bill was elimination of administradye interpretations that have kept families apart. The court stated
thatit would be incorrect to characterize the legislative history as.
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Interim Decision *1541
compelling but that it did indicate that the contemporaneously
enacted subsection (D) of section 101(b) (1) of the Act did not control the interpretation of subsection (B) ; considering the legislative
history along with the obviously broad language of subsection (B) •
the court was persuaded on the facts of the case the beneficiary was
the plaintiff's "stepchild." The court observed that there was no
issue as to whether a true natural father-child relationship existed;
that plaintiff,'her husband and the beneficiary had concededly been
a close family at the outset, and -immediately after citizenship was
secured, plaintiff petitioned to reunite the family unit; and concluded
that whether the expressed congressional policy of keeping family
units together should be overruled because of an unexpressed concern
about fraud was doubtful, particularly where other sanctions of the
law were available. The court, in deciding the case favorably to the
plaintiff, overruled our basic decision to the contrary in Matter of
TV—, 7 I. & N. Dee. 685 (1958). '
The instant case bears a remarkable similarity in its facts to those
existing in the Nation case, supra. Here the beneficiary's 'natural
father acknowledged her paternity shortly after birth and married
the beneficiary when the petitioner was four years of age. Assuming
the existence of a steprelationship upon the marriage of the petitioner's father to the beneficiary, that relationship continued, after the
stepchild reached the age of 21 and after the was married.1 There
was ample evidence of the .existence of a bona fide family unit
between the petitioner, the beneficiary and the natural father until
the petitioner's immigration to the United States in - 1953. It has
been established that close family ties between the petitioner and the
beneficiary exist until the present day.
The main thrust of the motion filed by the Service- is an attack
upon the decision in Nation v. Esperdy. The 1957 amendments to
sections 101(b) (1) (B) and (D) of the Immigration and Nationality
Act were passed simultaneously and the history of the amendment to
subparagraph (B) shows quite clearly that Congress was looking
only at situations in which alien women with illegitimate children
had married United States citizens who are not the fathers of the
children since these situations were the most numerous and formed
the factual basis for the administrative decision in Matter of TV—,
7 I. & N. Dec. 685 (1958). Apparently, Congress paid little attention to the precise factual situation involved in the Nation case.
Judge Feinberg's view in the Nation, case that subparagraph (D)
does not restrict subparagraph (B) but merely applies to a different
set of circumstances in which an illegitimate child may benefit,
'Matter of 0—,
8 I. & N. Dec. 592; Matter of G—, 8 I. a N. Dec. 355.
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evolves as a reasonably possible Construction of the statute. As
pointed out by Judge Feinberg, no clear intent can be gleaned from
the legislative history to exclude a child born out of wedlock whose
putative father's marriage created the step-relationship. In the
absence of compelling evidence of such intent the court's literal
application of the broad language of the remedial amendment is persuasive, particularly as applied to the facts present in that case, inasmuch as the decision involved highly sympathetic and equitable
factors.
The same highly favorable and equitable factors are involved in
the present case: We are unable to draw a distinction between the.
two cases. In view of the fact that no appeal was taken from the
decision in the Nation case, and in view of the similarity of the basic
facts and equities, we feel that the Nation case is binding upon the
instant case. This conclusion will not foreclose furthei examination
of the application of the Nation case to a different set of facts which
are not clearly within the scope of that decision.
. ORDER: It is ordered that the motion be and the same is hereby
denied.
.454
