Interim Decision 112792
MATTER OF MOREIRA
In Visa Petition Proceedings
A-22211458
Decided by Board Nay 6, 1980
(1) In order to establish a steprelationship under the Immigration and Nationality Act,
there must be a showing that the stepparent has, prior to the stepchild's eighteenth
birthday, evinced an active parental concern for the stepchild's support, instruction,
and general welfare. Matter of Mareira, Interim Decision 2720 (BIA 1979).
(2) Where the marriage creating a technical steprelationship takes place shortly before
a stepchild's eighteenth birthday, inquiry may properly be made into what occurred
between the stepparent and stepchild before the marriage, or after the child reached
the age of 18, in order to determine if the standards set forth in Matter of Moreira, id.,
have been met.
(8) Although a simple wan-lame ceremony will not be itself create genuine familial
bonds between ateprelatives, where such bonds can be shown, Matter of Moreira, id.,
should be broadly construed in order to give effect to the goal of encouraging and
preserving bonafide family relationships.
(4) Where petitioner, wife of the beneficiary's natural father, knew of the beneficiary's
existence from the time she first met her husband, a year before they were married,
where she and her husband have sent money to the beneficiary from their shared
income, and where the petitioner has always been willing to accept the beneficiary,
take responsibility for him, and consider him as her own child, the petitioner's
parental interest in the beneficiary was sufficiently active and timely to warrant
granting the visa petition, despite the fact that the marriage creating the steprelationship occurred only 4 months before the beneficiary's eighteenth birthday.
(5) It is not a denial of equal protection to have different rules of law in different judicial
districts. Castillo-Felix v. INS, 601 F.2d 459 (9 Cir. 1979).
(6) In the Board of Immigration Appeals' prior decision in Matter of Moreira, supra, the
decision in Andrade v. Esperdp, 270 F.Sunp. 5146 (S.D1sT.Y.1967), was not rejected, but
rather was interpreted to mean that some evidence of genuine familial bonds was
required in order to establish a steprelationship for immigration purposes, even
though a "close family unit" need not be shown.
(7) The standards in Matter of Moreira, supra, apply nationwide, including in the
Southern District in New York.
ON BEHALF OF PETITIONER:, ON BEHALF OF SERVICE:
James J. Orlow, Esquire Jim Torn Haynes
Public Ledger Building, Suite 936 Appellate Trial
Sixth & Chestnut Streets Attorney
Philadelphia, Pennsylvania 19106
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Interim Decision #2792
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
This is the second time this case has been before us. In a prior
decision, dated July 16, 1979, we remanded the record to the District
Director to give the petitioner an opportunity to show that the beneficiary qualified as her "stepchild" under the Immigration and Nationality A et, as that term was defined in our prior decision, which was
designated as a precedent. Matter of Moreira, Interim Decision 2720
(BIA 1979). The District Director, in a decision dated October 30, 1979,
determined that the beneficiary did not qualify as the petitioner's
stepchild as we had interpreted that term. In accordance with our
previous order, the District Director then certified his decision back to
this Board for review. Oral argument was heard before this Board on
February 21, 1980. The decision of the District Director is reversed.
The petitioner in this case is a 52-year-old native of Argentina and
citizen of the United States. The beneficiary is a 25-year-old native and
citizen of Argentina who was born out of wedlock to the petitioner's
husband and a woman he never married. The petitioner married the
beneficiary's father in 1972, when the beneficiary was 17 years old.
Thus, a purely technical steprelationship came into existence prior to
the beneficiary's eighteenth birthday. However, in our prior precedent
decision in this case, we held that more than a merely technical
relationship was required in order to establish a steprelationship
under the Act. After a careful review of the legislative history of the
stepchild provision, as well as of the case law, both from this Board and
from the courts, we held that a steprelationship exists for immigration
purposes where the stepparent has, prior to the child's eighteenth
birthday, evinced an active concern for the stepchild's support, instruction, and general welfare. While such an interest can be demonstrated by taking the child into the home and caring for him as a
parent, it can also be shown, we held, by a stepparent's continuing and
genuine interest in the well-being of a stepchild who may, due to
distance, immigration restrictions, or national boundaries, be unable
to actually live with the stepparent. Matter of Moreira, id.
The petitioner in the present case has submitted an affidavit which
indicates that she knew of and accepted the existence of the beneficiary
from the time she first met her husband, approximately one year
before they were married. She states that because the beneficiary had
always been a great concern of her husband's, he became a concern of
her's also, and that she and her husband sent money to the beneficiary
from their shared income. The petitioner states that she knew that
when she married her husband, the beneficiary and the beneficiary's
sister would become her children "as fully and completely as if they
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were mine by blood...." She acknowledges twice in the affidavit that
she has am "obligation" to the beneficiary.
The special problem presented by this case lies in the fact that the
petitioner's marriage to the beneficiary's father occurred only 4
months before the beneficiary reached his eighteenth birthday. The
Immigration and Naturalization Service argues, and counsel for the
petitioner has all but conceded, that the requirements of our precedent
decision could not have been, and were not, met in those 4 months. We
believe that the interpretation given to our decision by both counsel
and by the Service is too narrow. What we sought in our prior decision
was to encourage and preserve relationships where genuine familial
bonds existed, but also to recognize the fact that a simple marriage
ceremony not in every case serve to create such genuine bonds
between persons who have come steprelatives. Our decision in
Moreira, id., should be broadly construed where, as here, a bona fide
family relationship has been shown.
The fact that the marriag6 creating a relationship occurs shortly
before a stepchild's eighteenth birthday should not be fatal to a finding
that the Moreira standards have been satisfied. Each case must be
decided on its own facts. If, as in the present case, there is very little
time between the marriage and the birthday, it is not improper to
inquire into what occurred between the stepchild and stepparent
before the marriage, or to inquire into what occurred after the child
reached th.e age of 18. In both Nation v. Esperdy, 239 F.Supp. 531
(S.D.N.Y. 1965) and Andrade v. Esperdy, 270 F.Supp 516 (S.D.N.Y.
1967), for example, the Court emphasized that the stepmothers evinced
an active parental interest in their future stepchildren even before
they married the children's fathers. In the present ease, the record
indicates that the petitioner showed concern for the beneficiary prior
to her marriage to the beneficiary's father, and it is quite clear that
this interest continued, even grew, up until the beneficiary reached his
eighteenth birthday, and beyond. As we do not consider our inquiry
into the relationship to be strictly limited to the time between the
marriage a.nd the time of the child's eighteenth birthday, we are able
to find that the requirements set forth for a steprelationship have been
satisfied in this case. We are convinced that the timely parental
interest the petitioner showed in the beneficiary was "active" in the
particular circumstances of this case.
We do not by our decision today write out Moreira's requirement
that the bona fide steprelationship be established prior to the
stepchild's eighteenth birthday. It would not be sufficient, for example,
if the marriage creating the relationship occurred prior to the child's
eighteenth birthday, but the stepparent either did not know of, or
accept a genuine and continuing parental interest in, the child in any
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Interim Decision #2792
way before the child turned 18, even if afterwards great concern for the
child was shown. We emphasize that each case must be decided on its
own facts, and the key question must always be whether a bona fide
parent-child relationship exists.
In his brief on appeal, and at oral argument, counsel strongly
objected to the criteria set forth in Matter of Moreira, supra, and
argued that the proper standard should be that set forth in Andrade,
supra. He argues that to apply Andrade only in the Southern District
of New York is a denial of equal protection to persons who live outside
that judicial district. In the first place, it is not a denial of equal
protection to have differing rules in different judicial districts. See
Castillo-Felix v. INS, 601 F.2d 459 (9 Cir. 1979). More important, in our
decision in Moreira, supra., we did not reject Andrade, supra, but
rather we interpreted that decision to mean that while a "close family
unit" need not be shown in order to establish a steprelationship for
immigration purposes, some evidence of genuine family bonds did need
to be shown. We expect our decision in Moreira to be applied
nation-wide, including in the Southern District of New York.
As we find that the petitioner in this case has sufficiently exhibited
the requisite parental concern for the support, instruction and welfare
of the beneficiary, we will reverse the District Director's decision, and
grant the visa petition.
ORDER The decision of the District Director is reversed, and the
visa petition is approved.
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