Interim Decision #2844
MATTER OF MCMILLAN
In Visa Petition Proceedings
A-22511152
A-22511133
Decided by Board January 13, 1981
(1) Persons who become stepchildren through the marriage of a natural parent prior to
their eighteenth birthday are entitled to visa preference as a class under section
101(b)(1)(B) of the Immigration and Nationality Act, .8 U.S.C. 1101(b)(1)(B), without
further qualification. The Ninth Circuit rule in Palmer v. Reddy, 622 F.2d 463 (9 Cir.
1980), previously adopted by the Board in cases arising within that jurisdiction in
Matter of Bonnette, Interim Decision 2840 (BIA 1980), will be applied nationwide.
Matter ofMereira, Interim Decision 2720 (BIA 1979), and Matter of Mereira, Interim
Decision 2792 (BIA 1980), overruled.
(2) The beneficiaries, illegitimate offspring of the petitioner's husband, qualified as
stepchildren of the petitioner within the meaning of section 101(b)(1)(B) upon the
marriage of the petitioner and, the beneficiaries' natural father when the beneficiaries
were under eighteen years of age.
ON BEHALF OF PETITIONER: Pro se
BY: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members
In a decision dated July 23, 1980, the Acting District Director denied
the visa petitions filed by the United States citizen petitioner to accord
the beneficiaries immediate relative status as her stepsons pursuant to
section 201(b) of the Immigration and Nationality Act, 8 U.S.C.
1151(b). The petitioner has appealed from that decision. The appeal
will be sustained and the visa petitions will be approved.
The record reflects that the beneficiaries, twin brothers, were born in
London, England, on July 26, 1962, to the petitioner's husband and a
woman who was not then and never became his wife. The beneficiaries'
natural mother abandoned them when they were infants and they have
since resided with their paternal grandmother in Grenada, West Indies. The petitioner and the beneficiaries' father married in March
1964. The Acting District Director determined that the beneficiaries do
not qualify as stepchildren of the petitioner within the meaning of the
Act (see section 101(b)(1), S U.S.C. 1101(b)(1)) inasmuch as the peti-
.01,110.
Interim Decision #2844
tioner failed to establish the existence of a close family relationship
between herself, her husband, and the beneficiaries.
Section 101(b)(1)(B) of the Act includes within the definition of the
term "child": ".. . a stepchild, whether or not born in wedlock, provided
the child had not reached the age of eighteen years at the time the
marriage creating the status of stepchild occurred; .. ." In construing
section 101(b)(1)(B), we have long adhered to the view that given the
underlying Congressional policy of reuniting families, the mere fact of
a marriage which technically creates a steprelationship does not in
itself establish a stepparent-stepchild relationship for purposes of the
immigration laws. We had until recent date imposed the additional
requirement, apparently applied by the Acting District Director in the
instant case, that a close family unit be shown to exist between the
stepparent, the stepchild, and the natural parent. See Nation v. Esperdy, 239 F.Supp. 531 (S.D.N.Y. 1965); Matter of The,
11 I&N Dec. 449
(BIA 1965).'
We recently reexamined that position in Matter of Moreira, Interim
Decisions 2720 and 2792 (BIA 1979 and 1980), and established a new
standard that modified to some extent the close family unit test. After
careful review of relevant legislative history and pertinent Board and
court decisions,2 we held that a steprelationship exists for immigration
purposes where, prior to the stepchild's eighteenth birthday, the stepparent not only married the child's natural parent but evinced an
active parental interest in the child's support, instruction and general
welfare.
In Palmer v. Reddy,
622 F.2d 463 (9 Cir. 1980), the United States
Court of Appeals for the Ninth Circuit specifically rejected both the
Moreira "active parental interest" test and its predecessor, the "close
family unit" rule, concluding that persons who become stepchildren
through the marriage of a natural parent prior to their eighteenth
birthday are entitled to visa preference as a class under section
101(b)(1)(B) without further qualification. We found ourselves bound
to follow Palmer v. Reddy,
id., in Matter of Bonnette, Interim Decision
2840 (BIA 1980), a subsequent case arising in the Ninth Circuit.
We have now determined, with some reluctance, to retreat from our
position in Matter of Moreira, supra, and to apply the holding in
Palmer v.
Reddy, supra, nationwide. The difficulties inherent in the
' In Andrade v. Esperdy,
270 F.Supp. 516 (S.D.N.Y. 1967), another judge of the same
judicial district that decided the Nation case, the Southern District of New York, struck
down the close family unit requirement in cases arising within that jurisdiction. We
declined to apply Andrade outside the Southern District of New York. Matter of Amado
and Mmdeiro,
13 I&N Dec. 179 (BIA 1969).
= For a full discussion of the legislative history and case law development of the
stepchild provision, see Matter of Moreira, Interim Decision 2720 (BIA 1979).
606
Interim Decision #2844
literal interpretation given section 101(b)(1)(B) by the Ninth Circuit
are manifest. See generally concurring opinion of Board Member Appleman in Matter of Bonnette, supra. However, the Ninth Circuit is the
only Circuit Court of Appeals to have construed the stepchild provision
thus far. The Government appears to have acquiesced in the Ninth
Circuit's interpretation of section 101(b)(1)(B). We shall accordingly
adopt that interpretation as controlling outside as well as within the
Ninth Circuit.
The record establishes that the petitioner married the beneficiaries'
natural father when the beneficiaries were 20 months of age. Under the
rule of Palmer v. Reddy, the beneficiaries thereupon qualified as
stepchildren of the petitioner within the meaning of section
101(b)(1)(B) and are entitled to immediate relative status as the children of a United States citizen. The visa petitions will be approved.
ORDER, The appeal is sustained and the visa petitions are
approved.
