MOREIRA

                                                            Interim Decision #2720




                               MATTER OF MOREIRA

                          In Visa Petition Proceedings

                                      A-22211458

                        Decided by Board July 16, 1979

(1) A visa petition by a "stepmother" on behalf of the illegitimate child of her husband
  requires a showing that the stepparent has, prior to the child's eighteenth birthday,
  evinced an active parental interest in the child's support, instruction, and general
  welfare.
(2) The mere fact of a marriage creating a technical relationship of stepparent, without
  more, does not establish a stepparent -stepchild relationship for visa petition purposes. Matter of Amato and Menteiro, 

 (BIA 1969); Matter of Soares,

 (BEA. 1968), clarified; Andrade v. Esperdp, 

 (S.D.N.Y.
  1967); Nation v. Esperdy, 

 (S.D.N.Y. 1965), interpreted.
(3) 'Whether a stepparent - stepchild relationship exists for immigration purpnsss is a
  question of intent, and a showing that the parents lived together as a "close family
  unit" is not necessarily required. The relationship may be established by a showing
  that the parent intended to treat the child as her own, either by permitting the child to
  live in the family home and caring for him as a parent, or, if the child did not live with
  the stepparent, by demonstrating an active parental interest in the child's welfare.
(4) Taking into account barriers of distance, national boundaries, and immigration
  restrictions, an established parent-child relationship could overcome the fact that the
  parties never lived together in determining the existence of a etaprelationship recognized under the Immigration and Nationality Act.
(5) The legislative history of the Immigration and Nationality Act, which expressed
  primary concern for the reunification of families, as well as the case law, and prior
  Board decisions, support a definition of stepchild which requires the existence of bona
  fide family ties and parental concern.
(6) In the case of a petition by a stepparent for a stepchild, it is irrelevant whether the
  beneficiary is legitimate or illegitimate. Matter of Ferreira, 

 (BIA
  1978), Matter of Cur, 16 I&N Dee. 129 (PIA 197'7); Matter of Henna. 

  (BIA 1974), modified.
ON BEHALF OF RESPONDENT:                               ON BEHALF OF SERVICE:
  James J. Orlow, Esquire                               David Crosland
  636 Public Ledger Building                            General Counsel
  Sixth & Chestnut Streets
  Philadelphia, Pennsylvania 19106
BY: Milhollan, Chairman; Maniatis, Applemau, Maguir e, and Farb, Board Members




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Interim Decision #2720
   The Immigration and Naturalization Service has moved for reconsideration of our decision dated January 5, 1979. The motion will be
granted.
   The petitioner, a 51-year-old native of Argentina and citizen of the
United States, filed a visa petition on February 9, 1977, seeking to
accord the beneficiary, a 24-year-old native and citizen of Argentina,
preference status as her stepchild pursuant to section 203(a)(1) of the
Immigration and Nationality Act, 8 U.S.C. 1153(a)(1). In support of her
petition, the petitioner submitted the beneficiary's birth certificate,
stating that he was born on September 6, 1954, to Francisca Benitez
and Patrocinio Moreira. The birth certificate indicates that the beneficiary's parents were not married at the time of his birth, and no claim
is advanced that they subsequently married. In addition, the petitioner
submitted her marriage certificate which establishes that she married
Patrocinio Moreira on May 12, 1972.
   In his decision dated November 30, 1977, denying the visa petition,
the District Director found that the beneficiary was the illegitimate
child of Patrocinio Moreira, and that he had never been legitimated by
the marriage of his natural parents. The District Director then determined that the beneficiary did not qualify as the petitioner's stepchild
in that the petitioner, her husband, and the beneficiary had never lived
in a close family unit as required by our decision in Matter of Amado
and Monteiro, 

 (BIA 1969). On appeal, we remanded the
record to the District Director for further consideration in light of a
memorandum from the Service, dated December 11, 1978, in which the
Service indicated their willingness to have the decision in Andrade v.
Esperdy, 

 (S.D.N.Y. 1967), applied on a nationwide
basis. That decision rejected the requirement that a close family unit
need be shown before a visa petition filed on behalf of an illegitimate
stepchild could be approved.
  In its motion for reconsideration now before the Board, the Service
asks that we determine whether or not the Andrade rule should be
applied on a nationwide basis, thereby either overruling or reaffirming
our prior decisions in Matter of Amigo and Monterio, supra, and
Matter of Scares, 

 (BIA 1968). Counsel for the petitioner joins in this request by the Service, and also asks that we approve
the visa petition filed by the petitioner on the beneficiary's behalf.
  In 1957, the Immigration and Nationality Act was amended to
specify that an illegitimate child is the "child" of his natural mother
and that a stepchild is a "child" regardless of whether he is legitimate
or illegitimate. Act of September 11, 1957, 

, 71 Stat 639. Section 101(b)(1)(B) of the Act, 8 U.S.C.
1101(b)(1)(B), as amended, defines child to include a "stepchild,
whether or not born out of wedlock, provided the child had not reached
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                                                 Interim Decision #2720

the age of eighteen years at the time the marriage creating the status
of stepchild occurred." In Matter of W—, 

 (BIA 1958), we
reviewed the 1957 legislative change which resulted in. the present
language of section 101(b)(1)(B) and concluded that it required no
change in the prior administrative view that a child born out of
wedlock derives no benefit, status, or privilege under the immigration
laws in relation to its father and, accordingly, that the illegitimate
child of a father married to a United States citizen is not the wife's
stepchild and cannot qualify for a nonquota or a preference status.
   In Nation v. Esperdy, 

 (S.D.N.Y. 1965), a decision by
Judge Feinberg, the court examined the legislative history of section
101(b)(1)(B) and concluded that an illegitimate child of a father could
qualify under the statute as the stepchild of the father's spouse. In
Matter of The, 

 (BIA 1965), we considered the Nation
decision and found the court's interpretation of section 101(b)(1)(B)
persuasive, overruling our contrary decision in Matter of W—, supra,.
Finding ample evidence in Nation of the existence of a bona fide family
unit between the petitioner, the beneficiary, and the natural father of
the beneficiary, and finding similar favorable factors in The, we
adopted the holding of Nation on its facts. However, we stated that our
conclusion would not foreclose further examination of the application
of the Nation case to a different set of facts not clearly within the scope
of the decision. Indeed, in Matter of Aleo,

 (BIA 1965),
we upheld the denial of a visa petition filed by the petitioner on behalf
of a beneficiary, the illegitimate child of her husband, citing as one of
our reasons the absence of a family unit between the petitioner, the
beneficiary, and the beneficiary's father. See also Matter of Morris,

 (MA 1966); cf. Matter of Bourne, 

 (BIA
1977).
   In Andrade v. Esperdy, supra, an opinion by Judge Edelstein, the
court struck down the requirement of a close family unit. In the
absdnce of a definitive interpretation of the statute, and finding the
court's reasoning unpersuasive, we declined to apply Andrade outside
the Southern District of New York. Matter of Anta,do and Monteiro,
supra; Matter of Soarer, supra. See also Matter of Harris, 15 I&N Dee.
39 (BIA 1970).
   In their motion for reconsideration now before the Board, the Service argues that we should apply the rule of the Andrade case nationwide, thereby overruling our prior decisions to the contrary. Counsel for the petitioner joins in the Service motion insofar as urging the
abandonment of the close family unit requirement where a visa petition is filed on behalf of an illegitimate stepchild. The Service advances
several arguments in support of their motion: first, that there is no
clear legal distinction between the situation in Andrade and that

                                    43
Interim Decision #2720
present in Nation, applied by the Board on a nationwide basis; second,
the citation of Andrade approvingly in the Attorney General's opinion
in Matter of Stultz, 

 (BIA 1974, 1975; A.G. 1975); and
third, the lack, since 1967, of a uniform interpretation of the Act
regarding stepchildren. There is some merit in these arguments, particularly the first one. However, neither Andrade nor Nation analyzes
the elements of a stepparent-stepchild relationship which are needed
in addition to the formal fact of marriage in order to establish mutual
rights and obligations as a matter of law.
   In Nation v. Esperdy, supra, the beneficiary was born out of wedlock
to the petitioner's future husband and another woman in Kingston,
Jamaica, on February 12, 1947. The beneficiary was abandoned by his
natural mother. The petitioner began caring for the beneficiary in 1949
and married the beneficiary's natural father in 1952. The petitioner
immigrated to the United States in 1957, and her husband followed a
year later. The beneficiary was left behind due to the unavailability of
a visa for him. The petitioner became a naturalized citizen in 1962, and
immediately petitioned for the beneficiary's admittance to the United
States on a nonquota visa.
   In Andrade v. Esperdy, supra, the petitioner married Pedro Andrade
on July 5, 1959. Prior to their marriage, Andrade had fathered an out of
wedlock child, the beneficiary, who was born on June 5, 1948. The
petitioner had known her husband sometime before 1958, at which
time they began keeping company. He told his future wife about the
child, to whom he had been sending money, food, and clothing. During
their courtship, the petitioner corresponded with the beneficiary, such
correspondence continuing after their marriage. The petitioner and
the beneficiary referred to each other as "mother" and "daughter" in
their letters. After the petitioner married the beneficiary's father,
they continued to send the beneficiary money each month from their
joint bank account. It was clear from the facts of that case that Mrs.
Andrade's relationship to the beneficiary was based on more than the
mere fact of her marriage to the child's father: her actions demonstrated that she thought of herself as the beneficiary's mother. The
Service urged the court to uphold the denial of a visa petition filed on
behalf of the beneficiary by Mrs. Andrade, urging that, because the
three parties involved had not lived together in a "close family unit,"
the beneficiary could not be considered to be a "stepchild" within the
meaning of section 101(b)(1)(B) of the Act. The court, rejecting this
restrictive interpretation of that section, found that the visa petition
should be approved, noting that the petitioner "obviously wants [the
beneficiary] here." 

.
  Although Judge Edelstein in Andrade disapproved of the "preexisting family unit" test then urged by the Service, there were in fact close
                                   44
                                                Interim Decision #2720

family ties in that case, evidenced by Mrs. Andrade's continuing interest in the well-being and general welfare of the beneficiary. In fact, the
situation in Andrade can be distinguished from that in Nation only by
the fact that in Nation, the parties had at one time (8 years prior to the
time the visa petition was filed) lived together.
   Nation does not require that decisions in this area be based upon a
rigid requirement that the parties have at some time lived together.
Rather, there should be inquiry into whether the stepparent has
evinced an active parental interest in the stepchild's support, instruction, and general welfare. Certainly, if the child has lived in his
stepparent's home, it would indicate that the stepparent has shown
such an interest. However, the mere fact that a child has lived with his
stepparent should not in every case warrant a finding that the stepparent intends to act as a parent, just as the fact that a stepparent has
never lived with his stepchild should not always mean that the
stepchild cannot qualify as a "child" for immigration purposes. If the
totality of evidence indicates that the stepparent merely tolerated the
child's presence, a finding of uo stepparent - stepchild relationship
would he appropriate. On the other hand, taking into account barriers
of distance, national boundaries, and immigration restrictions, an
established parent - child relationship, as in Andrade, could overcome
the fact that the parties never lived together in determining existence
of a relationship recognized under the Act.
   In the instant case, the petitioner appears to argue that the mere
fact of her marriage to the beneficiary's father is alone sufficient to
establish that the beneficiary is her stepchild within the meaning of
section 101(b)(1)(B) of the Act. She relies on Andrade v. Esperdy for
this proposition; we do not agree that Judge Edelstein's opinion requires such a result. The proper interpretation of Andrade requires
that, in addition to the "mere fact" of a marriage, an actual parent-child relationship exist, even though the parties may not have actually lived together as a family.
  The term "stepchild," as used in the Act, must be defined in light of
the Congressional intent of reuniting families. In enacting the 1957
Amendments to the Immigration and Nationality Act, the expressed
intent of Congress was to "provide for a liberal treatment of children,"
expressing concern with "the problem of keeping families of United
States citizens and immigrants united." H.R. No. 1199, 85th Cong., 1st
Sess., reprinted in [1957] U.S. Code Cong. & Ad. News p. 2020. Similarly, when Congress enacted the Immigration Reform Act of 1965, it
declared that "Mennification of families is to be the foremost consideration." S. Rep. No. 748, 89th Cong., 1st Sess., reprinted in [19651 U.S.
Code Gong. & Ad. News p. 3332. Thus, the legislative history supports a
definition of stepchild. which would preserve relationships where bona

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Interim Decision #2720
fide family ties exist, rather than one that recognizes a simple marriage ceremony as entitling a person to the approval of a visa petition.
   The case law further reinforces such a definition. In a leading case
involving the stepchild relationship, Miller v. United States, 

 (8 Cir. 1941), rev'd on other grounds, 

 (1942), the
appellant was charged under 

(a) (1940 Ed.) ("The
Lindbergh Act") with the kidnapping of Dorothy Garner, the illegitimate daughter of the appellant's wife. Dorothy Garner, the kidnap
victim, was approximately 18 months old when her mother married
the appellant. She lived in their household for about 4 months. Thereafter, she lived with her grandfather until, at the age of 15, her mother
consented to her marriage to Will Garner. The appellant argued that,
as the husband of the mother of Mrs. Garner, he was a parent within
an exception to the statute providing penalties for kidnapping. The
court found that the appellant was not the victim's stepparent as that
term is defined by common usage. In its opinion, the court stated that
"A stepparent, by reason of this relationship alone, has no right to the
custody or control of the stepchild. Nor has he any duty to support the
stepchild. . . . The assumption of the relationship is a question of
intention." 

. (Citations omitted.)
  Similarly, in State v. White,

, 

 (Ct.
App. 1962), a prosecution for enticement of a child with unlawful
intent in violation of section 2901.33 of the Ohio Revised Code, the
court recognized the rule that a stepparent, by virtue of that relationship alone, does not stand in loco parentis to a stepchild. The court
reviewed the evidence, finding that the defendant-stepfather was
unemployed and without funds, and did not support the child,
determining, therefore, that the defendant had no right of custody
giving him the legal authority to take the child from school in violation
of the statute. See also State v. Gillaspie, 

, 

 (1973); State v. Smith, 

 (Ct_ App. Mo. 1972); McManus
v. Hinny, 

, 

 (1967); Brammit v. Commonwealth, 

 (Ct. App. Ky. 1962); Taylor v. Taylor, 

, 

 (1961); Rutkowski v. Wasko, 

, 

 (1955); London Guarantee and Accident Co. v.
Smith, 

, 

(1954); Kransky v. Glen Alden Coal
Co., 

, 

 (1946); Austin v. Austin, 

, 

 (1946); Bunker v. Mains, 

, 

 (1942);
Trudell v. Leatherby, 

, 

 (1931); Doughty v. Thornton,

,

 (1928); note, Stepchildren and In Loco Parentis
Relationships, 52 HARV. L. REV. 515 (1939). We find support in these
cases for our holding that a steprelationslip will be recognized for
immigration purposes only where the stepparent has shown an interest in the stepchild's welfare prior to that child's eighteenth birthday,
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                                                Interim Decision #2720
either by permitting the child to live in the family home and caring for
him as a parent, or, if the child did not live with the stepparent, by
 demonstrating an active parental interest in the child's support, instruction, and general welfare.
   The interpretation of the term "stepchild" set forth today is also
 supported by prior Board decisions. In Matter of Sobers, 

 (BIA. 1966), for example, the beneficiary, born in Barbados to the
petitioner's husband and a woman to whom he was not married, was
raised by her natural mother until the age of 9, at which time she was
placed in an orphanage. When the beneficiary was 11 years old, her
father left for the United States and thereafter married the petitioner.
Prior to the beneficiary's eighteenth birthday, the petitioner had met
the beneficiary on only one occasion, when the petitioner visited
Barbados for 3 weeks, and the beneficiary was permitted to leave the
orphanage in order to have dinner with the petitioner. We held that
although the beneficiary came to the "United States and lived with her
father and the petitioner after      eighteenth birthday, no stepparent-stepchild relationship existed for immigration purposes_ As there was
nothing in Sobers to show that the petitioner had shown any parental
interest in the beneficiary prior to the beneficiary's eighteenth
birthday, that ease is consistent with the test enunciated today.
   The Attorney General's decision interpreting the term "stepchild,"
Matter of Stultz,

 (A.G. 1975), also supports our present
holding. In Stultz, the petitioner married in 1955, in Jamaica. In 1958,
the beneficiary was born to the petitioner's husband and another
woman. The beneficiary lived with her natural mother until the age of
2, when her natural mother abandoned her. The beneficiary's father
took over her support until he left for the United States in December
1960. At that time, the petitioner began caring for the beneficiary, and
cared for her until her own departure for the United States in 1962.
After their arrival in this country, the petitioner and her husband
made several trips to Jamaica, where they visited the beneficiary. They
also sent approximately $100 a month to the couple with whom the
beneficiary had been residing, for care and education of the beneficiary.
The Attorney General's primary holding was that a child born of an
adulterous relationship could qualify for stepchild status in the same
way as a child born prior to the marriage creating the steprelationship. However, the Attorney General, in reaching this conclusion,
discussed "the emotional bonds of a parent-child relationship." Id. at 6.
Thus, it is evident that Stultz recognized the need for some sort of
family tie as a prerequisite to a finding of a stepchild relationship.
   In an analogous case, Matter of Teng,

 (BIA 1975), we
held that where a sham marriage is entered into for the purpose of
obtaining immigration benefits, no actual family relationship exists
                                  47
Interim Decision #2720
between the stepchildren and the United States citizen stepparentpetitioner. We emphasized in Teng the total lack of family ties between
the children and their stepfather. We recognized then what we recognize today: that a steprelationship under the Immigration and Nationality Act requires more than a mere legal relationship; there must also
be genuine familial bonds. For further Board cases lending support to
our present interpretation of stepchild, see Matter of Aznado and
Monteiro, supra, Matter of Morris, supra, Matter of Aleo, supra, Matter
of The, supra.
   In Matter of Miller,

 (BIA 1966), however, we reached
a result contrary to that which would be reached under the test
announced today. Miller involved a beneficiary born out of wedlock
during the existence of her father's marriage to the petitioner. Although the beneficiary lived with her mother, she received
support front the petitioner and her father and visited with them for
extended periods. When she was 15 years old, she came to the United
States and began living with her father and the petitioner. We found
that no close family relationship had been shown and that the beneficiary therefore could not be considered the stepchild of the petitioner.
Having reexamined this case, it now appears to us that the required
parental concern for the beneficiary was shown prior to the beneficiary's eighteenth birthday and that the visa petition filed on the beneficiary's behalf should have been approved. Matter of Miller is hence
overruled.
   Several other Board decisions require clarification in light of today's
decision. In Matter of Ferreira,

 (BIA 1978), Matter of
Gur,

 (BIA 1977), and Matter of Heung,

(MA 1974), visa petitions were filed on behalf of siblings, and approval
was sought on the basis of a common stepparent. In these cases, the
child needing the stepparent in order to create the sibling relationship
was legitimate. We therefore approved each visa petition, without
inquiry into whether or not a close family unit had been established.
This approach, insofar as it made a distinction between legitimate and
illegitimate stepchildren, was inconsistent with the express terms of
the statute, which speaks of "a stepchild, whether or not born out of
wedlock." Section 101(b)(1)(B) of the Act. We hold that, in order for a
steprelationship to be established, there must be a showing that the
child, whether legitimate or illegitimate, lived with and was cared for
as the child of the stepparent, or that the stepparent otherwise evinced
an active parental interest in the support, instruction, and general
welfare of the child. To the extent that the Ferreira, Gur, and Heung
decisions indicate otherwise with regard to legitimate stepchildren,
they are hereby modified.
   In the present case, the petitioner has introduced into evidence a
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                                                 Interim Decision #2720
copy of the beneficiary's birth certificate which establishes that he is
the illegitimate child of Patrocinio Moreira, the petitioner's husband.
In addition, the petitioner's marriage certificate has been made part of
the record, indicating that her marriage to the beneficiary's father
took place before the beneficiary's eighteenth birthday, as required by
section 101(b)(1)(B) of the Act. However, there is no evidence in the
record. regarding what relationship, if any, exists between the petitioner and the beneficiary in addition to the marriage of the beneficiary's
father to the petitioner. Accordingly, we will remand the record to the
District Director to enable the petitioner to introduce additional
evidence in support of the visa petition. In the event of an adverse
decision, the record should be certified to the Board for review.
   As an alternative argument on appeal, the petitioner has claimed
that, under the law of Argentina, the beneficiary is the legitimate child
of the petitioner's husband and the visa petition should be approved
on that basis. However, our decision remanding the record for further
evidence regarding the relationship between the petitioner and the
beneficiary does not depend upon whether the beneficiary is a legitimate or an illegitimate stepchild, and, as the beneficiary's father has
not filed a visa petition on his behalf, we find that we need not reach the
issue of whether the beneficiary is a legitimate child under the law of
Argentina.
   ORDER, The motion to reconsider is granted.
   FURTHER ORDER: The record is remanded to the District
Director.
   FURTHER ORDER: In the event of a decision which is adverse to
the petitioner, the record should be certified to the Board for review.




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