Interim Decision #1762
Mamma or YouNo*
In Visa Petition Proceedings
A-12788962
Decided by Board July 98, 1967
Since the relationship or stepmother-stepchild within the ambit of Natioia v.
Esperdy, 239 F. Supp. 531, is created upon the marriage of the father of the
illegitimate child to the stepmother subsequent to the birth of the child, the
relationship of stepmother-stepchild does not exist for immigration purposes
between petitioner, a law= permanent resident, and beneficiary -, the Illegitimate child of her prior husband, which child was born as the result of an
extramarital relationship during the existence of their marriage.
Ox BZILOW or Tun Pwrrrornm: Ox BrATALV or SnarloIC:
Jack Wasserman, Esquire Irving A. Appleman
902 Warner Building Appellate Trial Attorney
Washington, D.C. 20004
The case comes forward on appeal from the order of the District
Director, New York District, dated May 8, 1967 denying the visa
petition for the reason that the beneficiary, the alleged stepdaughter, is
not a "child" as defined in section 101(s) (1) (B) or (D) of the Immigration and Nationality Act in that she is not a legitimate child,
since petitioner's husband was never married to her mother or otherwise legitimated her in accordance with the terms of section 101(b)
(1) (C) of the Act; furthermore, the case is distinguishable from the
decision in Nation, v. Esperdy,
239 F. Supp. 531 (1965).
The petitioner, a 52-year-old female, a native of Hong Kong, B.C.C.,
a British subject, and a lawful permanent resident of the United
States since January 21, 1962, seeks preference quota status on behalf
of the beneficiary as her stepchild. The beneficiary is a native of Hong
Kong, B.C.C., a British subject, 10 years old. The visa petition indicates that the petitioner was married on November 15, 1935 at Nan
Chung Village, N.T., Hong Kong. A birth certificate of the beneficiary shows that her birth was registered under the name of Tsui Ling,
•See also Matter of Young, Int. Dec. No. 1819, of which the alien beneficiary
in this case Is also the subject.
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Interim Decision #1762
her father being listed as Young Wan Twig and her mother being
described as Yau Boon Tai.
Sworn statements were taken from the petitioner and her husband,
Young Wan Twig, by an immigration officer on April 13, 1967. When
questioned regarding the birth certificate of the beneficiary, she stated
that the midwife advised her to use the name of herself and her husband as parents instead of the name of the natural mother of the
child, who was a servant in her household. The petitioner stated that
the servant had told her that her husband was the father of this child.
She stated that the child was born and remained in her household
where the natural mother of the child continued to be employed as a
servant, that she bottle fed the baby and that the child's natural
mother took care of the child but not enough. The petitioner stated
that at the time the child was born, her husband was in the United
States, that she informed him of the birth of the child and that he
sent money for the support of the child but that she had no receipts.
The petitioner left Hong Kong for the United States in 1962 when the
beneficiary was about five years old. The beneficiary continued to reside in the petitioner's house with her natural mother, the petitioner's
daughter-in-law and her grandchildren, and was cared for by her
natural mother. The petitioner's husband continued to send financial
support for the child as well as for the daughter-in-law and the grandchildren.
The sworn statement of the petitioner's husband confirms that they
were married in 1985, that he left for the United States in 1987 and
that he visited his wife in Hong Kong in 1945 when he was a member
of the United States Army, visited her again in 1946 and 1949 and
last visited her from February 1956 until December 1956. He admitted
that he engaged in sexual relations with the servant girl during all
his visits to Hong Kong and that they engaged in relations about 10
or 15 times. He admitted, however, that he had told an investigator
in connection with an attempt to bring in the beneficiary as an orphan
that he had intercourse with the servant girl only once. However, he
now states it may have been more than once but he did not exactly
remember and that the servant girl is now about 48 years old. The
husband stated that the only way he has of knowing that he is the
child's father is that the servant girl told his wife that he was the father
and that 'he knows he had engaged in sexual intercourse with her;
that in 1956 when he left Hong Kong she appeared to be pregnant;
that he discussed this with her and she told him that she was pregnant
and it was his child. He believed her because of the circumstances involved and said that he is willing to undergo blood tests to 'determine
compatibility. He stated that he supported the child but that he has
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Interim Decision #1762
never seen the child. The husband did not consider the servant girl,
Tong Kai, to be a concubine and declared that the beneficiary was his
illegitimate child.
Counsel places reliance upon the case of Nation v. Esperdy, 239 F.
Supp. 531 (S.D.N.Y. 1965), to support his contention that the beneficiary is the stepchild of the female petitioner. The Nation case
involved a child who was born out of wedlock on February 12, 1947,
was abandoned in infancy by his natural mother, he was cared for by
the plaintiff since 1949. The plaintiff married the beneficiary's natural
father in 1952 when the beneficiary was five years old. The court
found that the legislative history of the Act of 1957, which amended
section 101 (b) (1) of the Immigration and Nationality Act so as to
include in subparagraph (B) a stepchild, Icaether 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, while
tending to sustain the Government's position that it applied only to
the illegitimate child of a mother who subsequently married a United
States citizen, nevertheless was not sufficiently compelling to control
the interpretation of subparagraph (B). The court observed that the
plaintiff, her husband and the beneficiary had been a dime family unit
since shortly after the beneficiary's birth, that immediately after citizenship was secured, the plaintiff petitioned to unite the family unit.
The court applied the "plain meaning" rule to the phrase "whether or
not born, out of wedlock" in view of the clearly expressed legislative
intention to keep together the family unit whenever possible and
held that on the facts of the case, in view of the existence of a family
unit, the beneficiary was the plaintiff's stepchild.
There are important differences between the present case and the
Nation case. In the Nation case, the factual situation was that the child
was born out of wedlock, and the natural father married the stepmother when the child was five years old. The court at pages 533-534
stated that although accepted dictionaries define stepchild as a child
by a former marriage, this statute literally contemplates that for immigration purposes, a person may be a stepchild even though he is illegitimate and that neither the accepted dictionary definitions nor the
statute makes any distinction between father and mother in defining a
stepchild. These words of the court must be taken in the factual context
in which they were uttered, a case where the step-relationship occurred
upon the subsequent marriage of the father of the illegitimate child to
the stepmother, thus creating the step -relationship by such subsequent
marriage.
In the instant case,, there is no subsequent marriage, the petitioner
being the wife of the husband, the child being The illegitimate child of
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Interim Decision #1782
th petitioner's husband, born as a result of illicit intercourse occurring
during the marriage. Upon these facts, it is difficult to perceive how
the petitioner qualifies as a stepmother merely by virtue of the fact
that the beneficiary and her natural mother continued to reside in the
household where the natural mother was a servant . 1
In addition, the petitioner's husband has never even seen the child.
It is obvious that there was not in existence a family unit which was
such a strong factor in influencing the decision in Nation v. Esperdy,
289 F. Supp. 531. Assuming the petitioner's husband was the father of
the child, in addition to the father never having seen the child, the
child was raised by the natural mother who resided in the petitioner's
household, the petitioner assisting merely in occasionally bottlefeeding the child.
The present case cannot be compared with the situation in Nation v.
Esperdy or in Matter of The, Int. Dec. No. 1541, which was considered
a situation analogous to the Nation case. The circumstances of the case
fall within the principle of the holdings in Matter of Aleo, Int. Dec. No.
1542; Matter of Morris, Int. Dec. No. 1568; Matter of Green, Int. Dec.
No. 1570; and Matter of Sobers, Int. Dec. No. 1590. These latter cases
apply even more strongly because it does not appear under the factual situation presented herein that there is any claim to a stepmother-stepchild relationship based upon an illegitimate child born to the
petitioner's husband during the existence of the marriage of the petitioner and her husband.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
1 Cf., Matter of Green, Int. Dec. No. 1570 (October 29. 1965).
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