Interim Decision #2603
MATTER OF CORTEZ
In Visa Petition Proceedings
A-22273811
Decided by Board August 3, 1977
(1) The United States citizen petitioner filed visa petitions to accord his parents who are
Mexican aliens, classification under section 201(b) of the Immigration and Nationality
Act. The petition filed in behalf of petitioner's mother was granted, while that filed in
behalf of his father was denied.
(2) Petitioner, who was born out of wedlock became legitimated under Michigan law
(MCLA section 702.83), when he was 28 years of age, by virtue of the marriage of his
parents.
(3) Although the Michigan legitimation statute provides that a child legitimated by the
sohgeriopnt rnarriage of his parents is considered legitimate from birth, the conferral of
this status is a matter quite apart from the age of the child at the time the act of
legitimation takes place. The age of the child at the time the act of legitimation takes
place is controlling.
(4) In order for petitioner to ennfer immigration benefits on beneficiary as his father, he
must first qualify as beneficiary's "child" under section 101(b)(1)(C) of the Act. He must
have been legitimated by an act of legitimation which took place before petitioner
reached his 18th birthday. Since petitioner was 28 years of age when the act of
legitimation occurred, petitioner did not qualify as beneficiary's "child," under the Act,
and the visa petition was properly denied.
(5) Matter of Obando, Interim Decision 2600, (BIA 1977), followed.
ON BEHALF OF P IoNER: Richard Feferman, Esquire
Michigan Migrant Legal Assistance Project
102 South Mechanic
Berrien Springs, Michigan 49103
BY: Milhollan, Chairman; 'Minna, Maniatis, Appleman, and Maguire, Board Members
The United States citizen petitioner filed a visa petition seeking to
classify the beneficiary as his parent under section 201(b) of the Immigration and Nationality Act, so that his father might obtain an immigrant visa as an "immediate relative" of a United States citizen. The
District Director denied the petition on the ground that the petitioner
had not been legitimated before he reached the age of 18, and therefore
could not be considered the beneficiary's "child" within the definition of
section 101(b)(1)(C) of the Act. The petitioner has appealed. The appeal
will be dismissed.
The facts in this case are not disputed. On December 13, 1976, the
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petitioner submitted two Form 1-130 visa petitions for his mother and
father, who are Mexican aliens. The petitioner was born out of wedlock.
He was not legitimated until he was 28 years old, when his parents
married. The District Director approved the petition in behalf of the
petitioner's mother, but denied the petition in behalf of the father.
The petitioner has challenged the District Director's decision on several grounds.
I.
In order to qualify the beneficiary as his "parent" under section
101(b)(2), the petitioner must show that he was at some time the
beneficiary's "child."
Under section 101(b)(1), a "child" is defined as an unmarried person
under 21 years of age who is a legitimate or legitimated child, a stepchild, an adopted child, or an illegitimate child seeking preference by
virtue of his relationship with his natural mother.
The petitioner contends that he is the beneficiary's child within the
definition of section 101(b)(1)(C), which provides:
(G) a child legitimated under the law of the child's residence or domicile, or under
the law of the father'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.
The petitioner is a resident of Michigan. Under Michigan law, "upon
the intermarriage of the parents of a child born out of wedlock . . . such
child shall be legitimate with the identical status, rights, and duties of a
child born in lawful wedlock, effective from its birth. . . ." (MCLA
section 702.83)
The petitioner's legitimation took place when he was 28 years old. It
thus would seem clear that he could not be considered the beneficiary's
"child" within the definition of section 101(b)(1)(C). However, the petitioner fastens on the language of the Michigan statute which legitimizes
the child "effective from its birth." The argument is fallacious. Generally, when a child is legitimated, the child is deemed legitimate from the
time of its birth. This is, however, something quite apart from the age of
the child at the time when the act of legitimation takes place. Matter of
Obando, Interim Decision 2600 (B IA July 20, 1977).
II.
The petitioner argues, in the alternative, that sections 101(b)(1)(C)
and 101(b)(1)(D)I of the Act violate the equal protection principles
2 Section 101(b)(1)(D) defines a "child" as an illegitimate child, by, through whoa, or on
voliose behalf a status, privilege, or benefit is sought by virtue of the relationship of the
aild to its natural mother." (Emphasis supplied.)
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embodied in the Due Process Clause of the Fifth Amendment, by
discriminating irrationally on the basis of gender, legitimacy and age at
the time of legitimation.
The petitioner argues that it is not simply the invidious classifications
that make the statute vulnerable to constitutional attack. The statute is
also said to interfere with constitutionally protected familial interests.
The petitioner cites Weinberger v. Wiesenfeld, 420 U.S. 636 (1975); Roe
v. Wade,
410 U.S. 133 (1973); Stanley v. Illinois,
405 U.S. 645, 651
(1972) and Griswold v. Connecticut, 381 U.S 479 (1965), in this regard.
-
The statutory provisions are also challenged on the ground that they
create an unwarranted irrebuttable presumption that an illegitmate
child and his father never have the kind of close relationship which
illegitimate children are presumed by the statute to have with their
mothers. Here the petitioner cites Weinberger v. Wiesenfeld, supra;
Jiminez v. Weinberger,
417 U.S. 628 (1974); Cleveland Board of Education v. LaFleur,
414 U.S. 632 (1974).
All of these arguments were rejected by the majority of the Supreme
Court in the case of Polio v. Bell,
430 U.S. 787 (April 26, 1977). 2 The
Court based its decision on the long line of eases holding that the power
to expel or exclude aliens is "a fundamental sovereign attribute exercised by the Government's political departments largely immune from
judicial control_" The Court cited Hampton v. Mow Sun Wong,
426 U.S.
88 (1976); Matthews v. Diaz,
426 U.S. 67 (1976); Kleindienst v. Mandel,
408 U.S. 753 (1972); Galvan v. Press, 347
11 U.S. 522 (1954); Shaughnessy
v. Mezei,
345 U.S. 206 (1953); Harisiades v. Shaughnessy,
342 U.S. 580
(1952); Lem Moon Sing v. United States,
158 U.S. 538 (1895); Fong Yue
Ting v. United States,
149 U.S. 698 (1893); The Chinese Exclusion
Case,
130 U.S. 581 (1889).
III.
Lastly, the petitioner argues that this case is analogous to Lau v.
Kiley, 410 F. Supp. 221 (S.D.N.Y. 1975), appeal docketed, 2 Cir., and
that his visa petition ought therefore to be approved. We fail to see the
analogy. In Lau, the court was confronted with a "unique situation,
since it appears that the terms 'legitimate child' and 'illegitimate child'
are meaningless in the context of the Chinese legal system."
410 F.
Supp. at 224. There are apparently no provisions in Chinese law prescribing a method for "legitimation" of children born out of wedlock. In
these unique circumstances, the court ruled that it was sufficient for the
2 In any event, we have no power to declare unconstitutional the statutes which we
achninibtel. Matter of Chem and Hasan, Interim Pierisinn 2405 (BIA 1975): Matter of
Lennon, Interim Decision 2204 (BIA 1974); Matter of Wong, 13 L & N. Dec. 820, 823 n. 2
(BIA 1971); Matter of ,Santana,
13 I. & N. Dec. 362, 365 (BIA 1969).
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petitioner in that ease to prove the requisite family relationship "as a
matter of fact." 3
The petitioner's argument is that Michigan law does not distinguish
between children legitimate at birth and children legitimated by the
subsequent marriage of their parents. This argument overlooks the fact
that Michigan law still retains the concept of illegitimacy and prescribes
a procedure by which illegitimate children may be legitimated. Section
101(b)(1)(C) requires that the legitimating act occur before the child
reaches the age of 18. The purpose of this requirement is obvious. It is
to insure that a real family relationship did exist between the father and
his child born out of wedlock. The fact that the legitimated child has the
same rights as a legitimate child under Michigan law, and indeed under
the law of every state, as far as we know, is quite irrelevant to the
concern which induced Congress to prescribe the age limitation contained in section 101(b)(1)(C).
The petitioner is not without a remedy in his quandary. Once his
mother becomes a lawful permanent resident, she can submit a second
preference visa petition in behalf of her husband.
ORDER: The appeal is dismissed_
The court relied upon our decision in Matter ofG-, 9 1. & N. Dec. 518, 520 (BIA 1961),
whese we stated that since Hungarian law had dispensed altogether with the terms "born
in -wedlock" and "born out of wedlock," "there are no legitimate or illegitimate children in
Hungary any more, only children of equal status."
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