Interim Decision #2749
MATTER OF FONG
In Visa Petition Proceedings
A-21324649
Decided by Board January 7, 1980
(1) A visa petition by the natural child of his father and his father's "second" Chinese
wife, for his father's "first" wife as his stepmother, is not based on a polygamous
"marriage," and the beneficiary is eligible to derive an immigration benefit through
the petitioner. Matter of Stultz,15 I&N Dec. 362 (BIA 1974,1975; A.G. 1975) followed.
Matter of Man,
16 I&N Dec. 543 (BIA 1978) distinguished.
(2) The fact that a petitioner has already successfully petitioned for his natural mother
does not preclude approval of a visa petition filed on behalf of a stepmother in the
absence of a statutory bar such as that existing in section 101(b)(1)(E) of the Immigration and Nationality Act with respect to the natural parents of an adopted child.
ON BEHALF OF PETITIONER: Pro se
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
On December 5, 1978, the District Director entered a decision denying the visa petition filed on behalf of the beneficiary as the petitioner's
stepmother. He has certified his decision to the Board for review. The
decision will be reversed, and the record will be remanded.
The petitioner is a 41-year-old native of China and citizen of the
United States. The beneficiary is a 72-year-old native and citizen of
China. The petitioner claims that the beneficiary is his stepmother and
that he lived in the same household with her from the date of his birth
until 1969. It appears from the record that the beneficiary married
Fong Tack-Wah, the petitioner's father, on April 1, 1924. Fong Tack-Wah "married" a second woman, the petitioner's mother (Tsang Bik-Lin) on June 10, 1933. The record contains the sworn statement of
Tsang Bik-Lin, dated October 14, 1976, in which she states that she is
Fong Tack-Wah's "second" wife, that she bore him three children, one
of whom is the petitioner herein, and that she, her husband, his "first"
wife (the beneficiary herein) and their children all lived in the same
household.
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In his decision denying the visa petition, the District Director determined that the only relationship between the petitioner and the beneficiary was as a result of a "quasi-polygamous" marriage, and accordingly, the visa petition could not be approved. We disagree.
In Matter of Man, 16 I&N Dec. 543 (BIA 1978), we were presented
with a visa petition filed on behalf of a "second" wife (or concubine) by
the child of her "husband" and his "first" wife. The petitioner in that
case claimed that the beneficiary was his stepmother within the meaning of the immigration laws. We reviewed our previous cases dealing
with concubinage' and found that we had never held that the secondary wife could derive or bestow immigration benefits through children
born to her "husband" and his principal wife. We denied the visa
petition, therefore, because the sole relationship between the beneficiary and the petitioner in Matter of Man, supra, was the polygamous
"marriage," finding that "Congress did not intend to accord preference
status on the basis of such relationships in view of the clear disfavor it
expressed towards polygamy by excluding polygamists from entry into
the United States under section 212(a)(11) of the Act, 8 U.S.C.
1182(a)(11)." Id. at 3.
The instant case presents a situation quite different from Matter of
Man, supra. Here, the petitioner is claiming a relationship to his
father's "first" wife. In Matter of Stultz,
15 I&N Dec. 362 (BIA 1974,
1975; A.G. 1975), we were presented with a visa petition filed by a child
born of an illicit relationship between the married natural father and a
woman to whom he has never married. Finding the existence of a bona
fide family unit (see generally Matter of Moreira, Interim Decision
2720 (BIA 1979)), we granted the petition. The Attorney General
affirmed our decision, recognizing that, regardless of whether the
illegitimate child was born before or after the marriage, the natural
father's wife could be considered the child's stepmother within the
meaning of section 101(b)(1)(B) of the Act.
We find no crucial distinction between the facts in the present case
and those in Matter of Stoltz, supra. The petitioner herein was born
subsequent to his father's marriage to the beneficiary, as was true in
Stoltz. That marriage was not polygamous, thereby distinguishing this
case from Matter of Man, supra. Accordingly, we find no bar in the
statute to approval of the instant petition, nor do we find the presence
of the policy considerations that led us to deny the petition in Matter of
Man, supra.
The decision of the District Director indicates that the petitioner
' See, e.g., Matter of Kw ortg,
15 I&N Dec. 312 (BIA 1975) (child of a concubine with the
status of flip can be considered a legitimate child under Hong Kong law) modifying
Matter of Kwan, 13 1&N Dec. 302 (BIA 1969).
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also filed visa petitions on behalf of his father and his natural mother
which have been approved. The approval of these petitions, unlike the
situation in Matter of Man, supra, is not based solely on the relationship created by the polygamous "marriage": the petitioner qualifies as
his father's and mother's legitimate child under section 101(b)(1)(A) of
the Act. See Matter of Kummg, 15 I&N Dec. 312 (BIA 1975). The fact
that the petitioner has already successfully petitioned for his mother
does not preclude approval of a visa petition filed on behalf of his
stepmother. Existing legislation regarding familial relationships constrains us to find that a petitioner can successfully petition both fora
stepmother and a mother. Compare section 101(b)(1)(E), which specifically cuts off any immigration rights of the natural parents of an
adopted child. No similar provision exists with respect to steprelationships.
Although we have determined that there is no statutory bar to
approval of the present visa petition, the inquiry into the relationship
between the petitioner and the beneficiary has not ended. In addition
to meeting the requirement of section 101(b)(1)(B) of the Act that the
marriage creating the stepchild relationship occur before the
stepchild's eighteenth birthday, the petitioner must also establish that
the stepparent had an active parental interest in the stepchild's support, instruction, and general welfare prior to the child's eighteenth
birthday. See generally Matter of Moreira, supra. The record in the
present case states only that the petitioner, the beneficiary, her husband, and his concubine lived together in one household. There is no
indication whether the beneficiary merely tolerated the petitioner's
presence in the family home, or if she took an active part in his
upbringing. Accordingly, we will remand the record to enable the
petitioner to introduce additional evidence in support of the petition.
The District Director should then enter a new decision in accordance
with Matter of To,
14 I&N Dec. 679 (BIA 1974).
ORDER* The record is remanded to the District Director for
further proceedings consistent with this opinion.
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