Interim Decision #184-1
Marx or SOARES
In Visa Petition Proceedings
A-1'7452700
Decided by District Director December 27,1967
Decided by Board March, 6,1988
Beneficiary, the illegitimate child of the United States citizen petitioner's
husband and another woman, who at all times has resided with his natural
mother and who has never been a part of the family unit of petitioner and her
husband, is not the stepchild of the petitouer within the meaning of section
101(b) (1) (B) of the Immigration and Nationality Act, as amended.
ON BEHALF or rzaarzonza : Daniel J. Donahue, District Agent
Division of immigration and Americanization
Department of Education
51 Franklin Street
Fail River, Massachusetts 02720
BEFORE THE DISTRICT DIRECTOR
This discussion concerns the visa petition filed by the wife of the
putative natural father of a child born out of wedlock, which seeks
to classify the beneficiary as a stepchild within the meaning of section
101(b) (1) of the Immigration and Nationality Act.
The beneficiary was born in Portugal on March 26, 1955 and still
resides there with his natural mother.
The petitioner claims birth at Onset, Massachusetts in 1916 and that
she was brought to Portugal by her parents a year later, where she
resided until she reentered the United States as a United States citizen
with a United States Passport on July 25, 1958.
The claimed citizenship of the petitioner is not supported by a birth
certificate. It appears a delayed record of her birth may have been
created. Presumably this would have occurred since May 7, 1957 since
our file contains a copy of a certification by the Secretary of the Commonwealth of Massachusetts, dated May 7, 1957, to the effect that a-
search was made of the records of his office for the birth record of
Armandina Monteiro or Armandina Centeio (the petitioner) in the
Commonwealth from •1911 through 1920 and that said record had not
been found.
Interim Decision #1814
The record contains affidavits from persons in the United States
asserting that petitioner was born as claimed—and it appears her
United States Passport was issued as the result of such affidavits. We
wish there were more convincing evidence of her United States birth
but since the petitioner has been admitted to the United States as a
citizen of this country and no evidence has come to light to establish
that she is not, we shall accept the premise that she is a citizen of the
United States.
On November 9, 1966 the petitioner testified before an Immigrant
Inspector at Boston that she has been married but once, in Portugal on
May 7, 1958,to Antonio Soares—the putative father of the beneficiary.
She testified also that this was the only marriage of Antonio Scares;
that Antonio Soares was never married to the mother of the beneficiary
and that the beneficiary has never lived with the petitioner.
The Ms of this Service show that the petitioner's daughter Madelina
Monti:lire Soares (A-14 748 512) was born in Portugal on March 18,
1954 of the onion of the plAtitionex, and Antonio Soares prior to their
marriage in 1958—and that the same is true of John Monteiro Soares
(A-14 747 892) who was born in Portugal on April 27, 1946. Both
these siblings are now in..the United ,Stat•s. The Services files of these
ivo persons were reviewed in conjunction with the subject petition in
an effort to obtain information to establish whether a family unit
existed in which the present beneficiary was an integral part or whether
the beneficiary is shown in the relationship now claimed in the subject
petition. They contain no mention of the beneficiary but this omission
is not particularly significant Since he was not involved in their relationship to the petitioner, as it affected their admissibility to the
United States.
It appears from a review of the entire record that the petitioner
and Antonio Soares lived together in Portugal for a period of nine
years before the beneficiary was born to another woman—and for three
years thereafter—before they were married to each other.
Submitted with this petition is a birth record dated October 8, 1965
in which Antonio Scares is named as the father of the beneficiary, and
Adeline Gomes as his mother: 'Antonio Soares is shown therein as
single and Adeline Gomes as a widow. There has been no claim made
that the beneficiary was everlegitiraated by Antonio Scares or adopted
by him. No claim has been made that he "affiliated" the beneficiary in
any action before the Portuguese authorities in the familiar "Perfilhacao" process.
In support of the petition there has been submitted an affidavit by
Adeline Gomes Oliveira, also known as Adeline Gomes, dated February 26, 1966, to the effect that she is the mother of the beneficiary,
that Antonio Soares is his father, that she is still a widow, and that
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Interim Decision #1844
the beneficiary has been supported by Antonio Soares since the beneficiary's birth. In it she releases the beneficiary for emigration to the
United States and for adoption by Antonio Soares and the latter's
wife, the petitioner.
This petition is based on the provisions of section 101(b) (1) (B)
of the Immigration and Nationality Act.
As we accept the claim to citizenship of the petitioner, we also accept
the claimed blood tie between the beneficiary and his putative natural
father. What remains therefore to, be determined is whether the beneficiary is the "stepchild." of the petitioner, within the meaning of section 101(b) ( 1) (B) of the Immigration and Nationality Act.
Section 101(b) (1) of the Act defines a "child" as an unmarried
person under 21 years of age who is—
(A) a legitimate child; or
(E)* 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 occurred; or
(0) a child legitimated under the law of the child's residence or domicile
whether in or outside the United States, if such legitimation takes place before
the child reaches the age of 18 years and the child is in the legal custody of the
legitimating parent or parents at the time of such legitimation.
(D)" an illegitimate, child, by, through whom, or on whose behalf a status,
privilege, or benefit is sought by virtue of the relationship of the child to its
natural mother.
(E)… a child adopted while under the age of 14 years if the child has thereafter bee•n the legal custody of and has resided with, the adopting parent or
parents for at least two years: Provided, that no natural parent of any such
adopted child shall thereafter, by virtue of such parentage, be accorded any
right, privilege, or statng ender this Act.
(F)* a child, under the age of 14 at the time a petition is filed in his behalf
to accord a classification as an immediate relative under section 201(b), who is
an orphan because of the death or disappearance of, abandonment or desertion
by • •
Section 101(b) (2) of the Act defines a "parent", "father" or
"mother" to mean a parent, father, or mother only where the relationship exists by reason of any of the circumstances outlined in section
101(b) (1) as indicated above.
It is clear that the sole tie between the petitioner and the beneficiary
is derived through Antonio Soares. The petitioner herself has testified
that the beneficiary has never lived with her and has always lived
with his natural mother. It appears that no family unit has ever existed
in which the petitioner filled the maternal role for the beneficiary.
*Amended by the Act of Septembet 11, 1957; **Entire paragraph added brthe
Act of September 11,1957,
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Interim Decision *1844
'When the Immigration and Nationality Act was enacted in 1952,
Section 101(b) (1) "A", 4B", and "C" read as follows:
(A) a legitimate child ; or
(B) a stepchild, provided the child had not reached the age of eighteen years
at the time the marriage creating the status of stepchild occurred; or
(C) a child legitimated under the law of the child's residence or domicile, or
under the law of the rather's residence or domicile, whether in or outside the
United States, if such legitimation takes place before the child reaches the age
of eighteen years and the child is in the legal custody of the legitimating .parent
or parents at the time of such legitimation.
Five years later the section was amended, on September 11, 1957,
with reference to the illegitimate child, to add subparagraph (D) and
to amend paragraph (B) to include the phrase "whether or not born
out of wedlock".
In so amendino. this section of the statute, Congress obviously took
cognizance of the plight of the illegitimate child whose separation
from his natural mother could ensue because the original statute had
failed to specify that an illegitimate offspring was included in the
definition of "child" in section 101(b) (1) of the Act.
Congress obviously recognized as well that in the natural sequence of
events, the illegitimate child could be an integral part of a family unit
headed by his mother and her spouse and would be dependent on the
latter as stepfather for his support and protection.
Less clear is the intention of Congress in defining the "stepchild" in
section 101(b) (1) (13)'with relation to the spouse of the natural father
of the illegitimate child.
We can see that section .101(b) of the Act has never included in its
definition of "child" the illegitimate child by, through whom, or on
whose behalf a status, privilege or benefit is sought by virtue of the
relationship of the child to its natural father. Tn fact, section (D)
(-dated September 11, 1957) makes it plain that the illegitimate child
will obtain such benefit, status or privilege by virtue of the relationship to his natural mother.
Is it possible that Congress on September 11, 1957 on one hand made
sure that the illegitimate child could be a "child" for the purposes of
section 101(b) of the Act only where the status, benefit or privilege is
being sought by virtue of the relationship of the child to its natural
mother—excluding the natural father from the picture—yet, at the
same time gave to the wife of the natural father a right he himself
does not have ?
The Service has heretofore found this premise unacceptable and
has in essence held that Congress intended that subsection 101(b)
(1) (B) demands the basic prerequisite relationship of "child" to
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Interim Decision #1844
"parent" before the relationship of "stepchild" could occur with regard
to the spouse of the "parent".
Since the natural father of the illegitimate child is not a "parent"
or "father" within the definition of section 101 (b) (2) of the Act—can
his wife who may never have even seen his illegitimate offspring, have
under the law a right denied to him?
The question narrows simply to—What did Congress intend? Or,
what does the statute actually say?
There have been few precedents to help us. There are only two
reported Court decisions in point, i.e., Nation v. Esperdy, 239 F. Supp.
531 (U.S.D.C., S.D., N.Y. 1965) and And/Tacky. Esperdy,
270 F. Supp.
516 (U.S.D.C., N.Y., July 13, 1967).
In Nation the beneficiary was born out of wedlock in 1947 and was
abandoned by his natural mother. The petitioner assumed the care of
the beneficiary in 1949—three years before her marriage to the child's
natural father. In 1057 the petitioner came to the United States to live
and the natural father joined her in 1958. The child was left behind
because no visa was available for him When the petitioner acquired
United States citizenship, she filed a visa petition for the beneficiary
which was denied by this Service on the ground that the beneficiary
was not a stepchild within the meaning of the statute. In Nation the
Court stressed the preexistence of an established family unit of which
the beneficiary, and the petitioner were a part and held that the beneficiary was a "stepchild" within the meaning of section 101 (b) (1) (B).
Following the Court's decision in the Nation case this Service held
in the Matter of Morris, 11 I. & N. Dec. 587, that the beneficiaries—
illegitimate children of the husband of a United States citizen petitioner—are not stepchildren of the latter within the meaning of section 101(b) (1) (B) of the Act since a step relationship does not exist
as the petitioner had seen the beneficiaries only for very brief periods
of time subsequent to her marriage to their natural father and a family
unit between the parties has never existed, petitioners having been
reared by their natural father's brother.
In the more recent case of Andrade—the Court reached the same
ultimate conclusion as in the Nation case but denied the need to establish any preexisting family unit as a prerequisite to designating such
a beneficiary as a "stepchild". The petitioner in the Andrade case was
born in the United States and married the natural father of the child
in 1959. At the time of their marriage, he had an illegitimate daughter,
11 years of age, who was born in Portugal and still lived there with
her natural mother. In 1959 the natural father went to Portugal and
recognized his daughter through the Portuguese "perfilhaeao" procedure which is of course neither a legitimation nor adoption process
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Interim. Decision #1844
but is usually a means of acknowledging one's fatherhood of an illegitimate child. Both he and his petitioning spouse had furnished the child
with financial support for many years. In the cast of Andrade the
Court held that the Service had been wrong in denying the Andr ade
petition on the criterion that in the absence of a preexisting family
unit encompassing the petitioner and the beneficiary, the beneficiary
could not qualify as a stepchild. The Court held that the beneficiary
was a stepchild and directed approval of the petition.
The Nation and the Andrade cases are more appealing, perhaps than
the one here considered. We do not find here that a family unit has ever
existed encompassing the petitioner and beneficiary; there is no evidence of an attempt to make formal legal acknowledgement of the
paternity of the child—and therm is no evidence of any special interest
or concern for this child through the years by the petitioner herself.
It appears to us that the issue resolves into a consideration of
whether any illegitimate child (who otherwise qualifies) is a stepchild
of the woman to whom his natural father is married solely because of
the existence of such marriage. •
In the Andrade opinion the Court quoted at length from the Senate
and House Reports of 1957 (S. Rep. No. 1057-85th Congress, 1st Sess.
4-1957) (H. Rep. No. 1199-85th Congress, 1st Sess. '1-1957) in support of the then proposed amendments to section 101(b) of the Immigration and Nationality Act with regard to the illegitimate child.
The Court in its opinion on Andrade commented with regard to
such reports,
The legislative history of the subsection in question is quite monger. The
Senate Report, on its face, indicates that perhaps a contrary result should
have been reached in Nation:
"Section 1 of the Bill, as amended would amend the definition of the term •
'child' as used in Titles I and II of the Immigration and Nationality Aot for
the purpose of alleviating certain hardships which have arisen as a result of an
administrative interpretation that a child born out of wedlock to a woman who
subsequently marries a man not the father of the child, is not included within
the term "stepchild." The proposed amendment would clarify the law in such
manner as to make it clear that a child born out of wedlock in relation to its
mother may be • included in the term 'stepchild' and thereby enjoy the same
immigration status as other stepchildren. The committee believes that this would
accomplish the original intent of the section." S. Rep. No. 1057, 85th Gong., 1st
Sess. 4 (1857).
It seems clear, however, that the Senate used the feminine word "mother"
instead of the neuter "parent" because it was reacting to a particular obnoxious
administrative acticin.
The House, too, was aware of unwarranted administrative action :
"Shortly after the Immigration and Nationality Act became effective on December 24, 1952, the attention of the committee was called to the administrative interpretation of the term 'child' as defined for the purposes of Titles I and II of the
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Act. On April 16, 1953, the Board of Immigration Appeals of. the Department
of Justice held that a child born out of wedlock is eligible for nonquota status on
the basis of a petition flied by its stepfather, a United States citizen and legal
husband of the mother of such child. However, on June 8, 1903, the Attorney
General reversed the decision of the Board and ruled that a child born out of
wedlock prior to the marriage of its mother to a United States citizen is not a
'stepchild' within the meaning of section 101(b) (1) (B) supra. On February 3,
1954 tne Attorney General rules (sic) that an illegitimate child was not eligible—
for a nonquota status on the basis of a visa petition filed by the United States
citizen mother of the child. The Committee's request for reversal of these two
decisions met with no success.
"Subsequent decisions of administrative officers operating under the Attorney
General follow the line of the interpretation above summarized and actually
extend it to apply in the case of a United States citizen, born out of wedlock,
who under section 203(a) (2) of the Immigration and Nationality Act sought to
confer second preference status under the quota upon his mother (decision of
April 2, 1957, in the case of VP 2-1-22869).
"In view of the fact that the committee's attempts to clarify legislative intent
remains unsuccessful, it is believed that there is need for the enactment of the
instant section, in order to alleviate hardship and provide for a fair and humanitarian adjudication of immigration cases involving children born out of wedlock and the mothers of such children. (H. Rep. No. 1199, 85th Cong., 1st Seas.
(1957) U.S. Code Cong. & Admin. News 1957, p. 2020.
In its summary, however, the House used neuter language : -
"Sympathetic and humane considerations dictate an interpretation (sic) which
would not separate the child, whether legitimate or Illegitimate, from its alien
Parent, particularly in those cases where the citizen parent has executed a petition for the issuance of a nonquota visa.to such,child and has evidenced an intent
to regard the illegitimate stepchild of his spouse as a part of his own family unit.
There is ample judicial authority to support a construction that would include
the illegitimate child of the spouse as the atepchild of the person who has married
the parent of that child." Id. at 8, U.S. Code Cong. & Admin. News 1957, p. 2031.
-The Court in the Andrade opinion saw in these Reports the intent
of Congress to include in section 101(b) (1) (13) as the "stepchild" of
the spouse of the putative natural father, the illegitimate offspring
of such father.
We have given much consideration to the same Reports and find in
them support of Congress' intent to protect the illegitimate child, who
traditionally is dependent on his, mother for care, sustenance, name,
etc. and to provide for such child a continuance of care and sustenance
through such mother should she later marry and become part of a new
home.
The use of the neuter form "parent" in the Summary of the House
Report (mentioned in _Andrade) instead of "mother" in our opinion
is not of great significance, since the Summary refers to the "person
who has married the parent of that child" and the Congress has left
undisturbed the original form of section 101 (b) (2) defining a "parent"
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Interim Decision 4t1844
in such a way as to exclude the natural father of the illegitimate child
in the absence of legitimation or adoption.
Accordingly considerable doubt remains in our mind that Congress
actually had the intent found by the Court as shown in Andrade in
view of its restriction of derivative rights or benefits to the illegitimate
child solely through his natural mother. We agree that the Statute is
not clear. It is the duty of the Courts to interpret the law when there
is doubt as to its intent and meaning. In view of the broad interpretation of this statute by the Courts in the two cited cases above, we hereby
grant the subject petition and direct that the beneficiary be classified
as the stepchild (immediate relative) of the petitioner. (All italic
supplied.)
BEFORE THE BOARD
The case comes forward pursuant to certification by the District
Director, Boston District, of the decision dated December 27, 1967
granting the visa petition and directing that the beneficiary be classified as a stepchild (immediate relative) of the petitioner.
The petitioner, whose citizenship status as a native-born citizen
is conceded for the purpose of this decision, 51 years old, female, married, seeks immediate relative status on behalf of the beneficiary as her
stepchild. The beneficiary is a native and citizen of Portugal, born
March 6, 1955, male.
An attachment of even date sets forth in detail the circumstances of
the case and an application of the law, as well as a discussion of the
court decisions in Nation v. Evenly, 239 F. Supp. 531 . (S.D.N.Y.,
1965) and Andrade v. Eeperdy,
270 F. Supp. 516 (S.D.N.Y., 1967).
We endorse the views expressed by the District Director and incorporate them as our own with the exception of the last sentence, which is
at odds with the tenor of the preceding contents of the memorandum,
and conclude that the visa petition should be denied. Inasmuch as the
District Director's memorandum is so thorough, we shall discuss only
certain phases of the case.
The petitioner married Antonio Silva Soares in Brava, Cape Verdi
Island, Portugal on May 7, 1958. Prior thereto the petitioner and her
husband had lived together as husband and wife at least since 1945, as
evidenced by the birth of a son, John Monteiro Soares on April 27,
1946, and a daughter, Madelina on March 18, 1951. Thus the petitioner
and Antonio, the natural father of the beneficiary, had lived together
for about 10 years prior to the beneficiary's birth on March 26, 1955 as
the result of illicit intercourse with a widow, Adeline, Gomes. The
beneficiary never lived in the household of the petitioner and her
husband but always remained with his natural mother, as evidenced by
a sworn statement taken from the petitioner on November 9, 1966.
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Interim Decision #1844
There has been submitted a birth record of the beneficiary dated October 8, 1965 in which the beneficiary is described as the son of Antonio
Snares, single, and of Adelina Gomes, widow. The beneficiary has
never been legitimated as were the other two children of the petitioner
and her husband by their subsequent marriage, nor is there even any
claim that the birth record constitutes a "perfilhacao" or recognition
of the beneficiary by the putative father. The petitioner stated that
her husband sends the beneficiary $15 or $20 a month, but the
commencement of the date of such support is not known.
In Nation v. Evenly, 239 F. Supp. 531, Judge Feinberg stated that
while on balance it was fair to say that the legislative history more
clearly focuses on the mother-child relationship and tended to support the Government's position, the legislative history was not conclusive, and suggested conflicting interpretations (p. 538). Judge Feinberg was persuaded on the facts of the case that the beneficiary was
the plaintiff's stepchild, inasmuch as the 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.
In Andrade v. Esperdy,
270 F. Supp. 616, the beneficiary, Maria,
was born out of wedlock on June 5, 1948 before her father married the
petitioner, Viola, on July 5, 1959. In May, 1959 the father unsuccessfully tried to adopt Maria but suceeded only in affiliating her. During
the Andrades' period of courtship since 1953, the future Mrs.
Andrade often wrote to Maria and referred to themselves as
mother and daughter, and since their marriage the Andrades had sent
Maria $50 a month out of their joint bank account. Judge Edelstein
stated that the humane considerations of preserving a preexisting
family unit and those of creating a unit out of the likeliest of parts,
wiz, a child, its natural parent and a stepparent when circumstances
have kept them apart, are indeed in harmony. The court went on to
refer to some irrelevant matters such as the fact that the petitioner
was a native-born citizen and her father entered the United States
in 1920; that the court did not see how the beneficiary could be a threat
to the security or well-being of the people of the United States (pp.
520 521). Judge Edelstein rejected Judge Feinberg's emphasis on a
-
preexisting bona fide family unit which included this illegitimate stepchild, the natural father and the stepmother, and granted a summary
judgment on behalf of the plaintiff.
The instant case would go even a step further than the Andrade
case. It is conceded that there never existed a family unit, and that
at all times the beneficiary resided with her natural mother. This
beneficiary was born to another woman during an already long pre-
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Interim Decision *1844
existing marital relationship which was regularized by the marriage
of the petitioner and her husband on May 7, 1958, which legitimated
the children born of that relationship? We are not prepared to extend
the holding in Andrade v. Esperdy, 270 F. Supp. 516 (S.D.N.Y.),
to the situation in the instant case, which arises in another Circuit.
Considerable doubt exists that Congress actually had the intent
found in Andrade, in view of its restriction of derivative rights or
benefits to illegitimate child solely through its natural mother. A
citizen or resident alien is unable to confer immediate or preference
status upon his illegitimate son, but under the holding in Andrade,
his wife and stepmother (assuming the existence of such a relationship
in this case) is able to confer that status on his son by reason of
her relationship to his illegitimate son. This result imputes to Congress the unlikely intention of favoring a relationship by affinity
over a closer' one of consanguinity. The Nation case requirement of
a close preexisting family unit makes the result reached in that case
acceptable on humanitarian and sympathetic grounds. The facts in
the instant case do not.
The burden rests upon the petitioner to establish eligibility for
the benefit she seeks under the immigration laws. We hold that the
petitioner has not discharged such burden. The visa petition will be
denied.
ORDER: It is ordered that the visa petition be and the same is
hereby denied.
I Of. Matter of Young, Int.„ Dec No. 1782 and Int. Dec. No. 1819.
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