¶1(dissenting) :
¶2I. Issues
¶3The constitutionality of the definitions of “parent” and “child” in the Immigration and Naturalization Laws is challenged. Section 101(b)(1) and (2) of the Immigration and Nationality Act (Act), Title 8 U.S.C. § 1101(b)(1) and (2) (1970). Unlike mothers and their illegitimate children, fathers, and their illegitimate children, are excluded from the definition of “parent” and “child”. They are therefore ineligible for certain exemptions given citizens’ relatives who are trying to enter the country: citizen fathers can not have their migrating illegitimate children exempted from numerical quotas and labor certification requirements as their “immediate relatives”; citizen and permanent resident illegitimate children can not have their migrating fathers exempted from the labor certification requirement. Insofar as pertinent, the definitional provision reads:
“(1) The term ‘child’ means an unmarried person under twenty-one years of age who is—
(A) a legitimate child; or
… *
(D) an illegitimate child, by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother;
******
“(2) The terms ‘parent’, ‘father’, or ‘mother’ mean a parent, father, or mother only where the relationship exists by. reason of any of the circumstances set forth in subdivision (1) of this subsection.”
¶48 U.S.C. § 1101(b) (1970).
¶5*169The questions presented are (1) whether a statute making it more difficult for a parent and his child — one of whom is a citizen or permanent resident — to live together in this country solely because of the sex of the parent and the illegitimacy of the child is valid under the Fifth Amendment; and (2) whether a federal court is without power to declare such a statute invalid because it is a part of the immigration laws. The answers should be no. The Constitutional road to equality of the sexes is open to men as well as women. Each of these plaintiffs is being deprived of a critical part of his “life . without due process of law.” U.S.Const. Fifth Amend.; cf. id.Fourteenth Amend, (“equal protection of the laws”).
¶6Legal discrimination between men and women or legitimates and illegitimates with no rational basis is no longer tolerated. Where, as here, statutory invidiout discrimination punishes American citizens by denying them familial association, one of the most precious attributes of humanity, the courts should say what is plain: the statute is unconstitutional. The wrong to parent and to child is not reduced by characterizing the one as a “biological father”, without regard for his progeny. Such disdain for filial affection is incompatible with a Constitution embodying the highest ideals of a civilized nation such as ours.
¶7II. Facts
¶8Plaintiffs Ramon Fiallo and Ramon Fiallo-Sone, son and father
¶9Ramon Fiallo is a United States citizen, born in New York City in 1971. Although his father, Mr. Fiallo-Sone, was not married to his mother, his father’s name appears on his birth certificate and ’ his father has nurtured him since his birth. An American consul has informed Mr. Fiallo-Sone that he is not eligible for an immigrant visa or permanent residence status without a labor certificate, and that while the labor certificate requirement is waived in the case of fathers of citizen children, the waiver is only available if the child is legitimate issue. A foreign mother of an illegitimate citizen would have obtained the waiver.
¶10Plaintiffs Serge Warner and Cleophus Warner, son and father
¶11Cleophus Warner, a naturalized citizen, is the unwed father of Serge Warner, who was born in the French West Indies in 1960. Mr. Warner’s name appears on Serge’s birth certificate, he registered as Serge’s father shortly after Serge’s birth, and he has acknowledged paternity. Mr. Warner has supported his son since the child’s birth. In 1969 Serge, in accord with his parents’ and his own desires, entered the United States to live with his father. Father and - son took steps to obtain an immigrant visa and permanent residence status for Serge in 1972. The Immigration and Naturalization laws allow citizen parents to bring alien children into the United States as “immediate relatives” without regard to the applicable numerical limitation on immigrants. Mr. Warner’s petition was denied on the ground that Serge was not his legitimate issue as required by statute. Had the petition been by a mother who was a naturalized citizen, or had the child been legitimate, the petition would have been granted.
¶12Plaintiffs Trevor and Earl Wilson and Arthur Wilson, sons and father
¶13Trevor and Earl Wilson, who are now permanent residents of the United States, were born in Jamaica in 1957 and 1959 respectively. Arthur Wilson acknowledges the boys as his illegitimate sons. He lived with them and supported them until 1968, at which time they moved to New York City with their mother. From 1968 until 1974 Mr. Wilson maintained his relationship with his sons by visits and correspondence. He also continued to support them financially. After their mother died in 1974, the two boys asked their father to come to the United States to live with them. *170But Mr. Wilson was only able to stay for as long as an emergency visa allowed. Since his children are illegitimate, Mr. Wilson is unable to settle in the country without a labor certification. Were a mother in Mr. Wilson’s position, or were the children legitimate, the parent would have been able to enter the country without a labor certification.
¶14III. Law
¶15The position of these three families illustrates the severe effects on American citizens and permanent residents from the Act’s discrimination between male and female parents and between legitimate and illegitimate children in its definitions of parent and child. The government does not contend that the relationship of parent to child does not exist or that a strong emotional bond between the father and child is lacking in any of these cases. Its position is that the statute compels the discrimination.
¶16This statute, defendant insists, is not subject to judicial review. Characterizing the classification as one of aliens for the purpose of their exclusion from the country, it contends that Congressional power to exclude aliens is unfettered. See, e. g., Chae Chan Ping v. United States, 130 U.S. 581, 9 S.Ct. 623, 32 L.Ed. 1068(1889); Faustino v. Immigration and Naturalization Service, 432 F.2d 429, 431 (2d Cir. 1970) (Per Curiam), cert. denied, 401 U.S. 921, 91 S.Ct. 909, 27 L.Ed.2d 824 (1971).
¶17But this is not a simple case of classifying aliens for the purpose of preferring some over others for entry. Rather, Congress has hinged immigrants’ access to this country on their relationship to citizens and permanent residents. The question thus becomes whether a Congressional classification of citizens and permanent residents which severely disadvantages them may escape traditional constitutional scrutiny merely because it is set in alienage legislation.
¶18If the classification were based on race, rather than gender or legitimacy, the court’s power would be no different. Were Blacks, for example, excluded from the list of those American citizens who could bring in their relatives without regard to quotas, no court would let the statute stand. The Constitution, and in particular, the Fifth Amendment, protects citizens from abusive or discriminatory government action. Packaging a discriminatory classification of citizens in alienage legislation can not insulate it from judicial scrutiny.
¶19There is ample Supreme Court precedent for intervention when enforcement of the Act burdens citizens’ Constitutional rights. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Almeida-Sanchez v. United States, 413 U.S. 266, 273 n. 5, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973). See also, Burrafato v. United States Dept. of State, 523 F.2d 554 (2d Cir. 1975) (dicta). The Court has recognized procedural due process and Fourth Amendment limitations on the government’s exclusion and expulsion of aliens. See, e. g., Wong Yang Sung v. McGrath, 339 U.S. 33, 49-50, 70 S.Ct. 445, 454, 94 L.Ed. 616 (1950) ; Kwock Jan Fat v. White, 253 U.S. 454, 459, 464, 40 S.Ct. 566, 568, 570, 64 L.Ed. 1010 (1920); Kaoru Yamataya v. Fisher, 189 U.S. 86, 100, 23 S.Ct. 611, 614, 47 L.Ed. 721 (1903); cf. Lennon v. INS, 527 F.2d 187 (2d Cir. 1975).
¶20When courts have been faced with challenges to other sections of the Act which classify aliens in terms of their relationship to citizens, they have not shrunk from traditional equal protection analysis. See Perdido v. Immigration and Naturalization Service, 420 F.2d 1179, 1181 (5th Cir. 1969); Faustino v. Immigration & Naturalization Service, 302 F.Supp. 212, 215 (S.D.N.Y.1969), aff’d, 432 F.2d 429 (2d Cir. 1970), cert. denied, 401 U.S. 921, 91 S.Ct. 909, 27 L.Ed.2d 824 (1971). Cf. Noel v. Chapman, 508 F.2d 1023, 1026-9 (2d Cir. 1975).
¶21So blatant a discrimination on the basis of gender and legitimacy is seldom *171found in modern statutes. Illegitimacy as a basis for denial of rights available to legitimates has been repeatedly struck down as invidious and lacking in rational basis. See, e. g., Jimenez v. Weinberger, 417 U.S. 628, 632, 94 S.Ct. 2496, 2499, 41 L.Ed.2d 363 (1974); New Jersey Welfare Rights Organization v. Cahill, 411 U.S. 619, 620-621, 93 S.Ct. 1700, 1701, 36 L.Ed.2d 543 (1973) (Per Curiam) ; Gomez v. Perez, 409 U.S. 535, 538, 93 S.Ct. 872, 875, 35 L.Ed.2d 56 (1973) (Per Curiam); Weber v. Aetna Casualty and Surety Co., 406 U.S. 164, 175-176, 92 S.Ct. 1400, 1406-1407, 31 L.Ed.2d 768 (1972); Glona v. American Guarantee and Liability Insurance, 391 U.S. 73, 76, 88 S.Ct. 1515, 1517, 20 L.Ed.2d 441 (1968); Levy v. Louisiana, 391 U.S. 68, 70-72, 88 S.Ct. 1509, 1510-1511, 20 L.Ed.2d 436 (1968); Tanner v. Weinberger, 525 F.2d 51 (6th Cir. 1975). Gender classifications have also been treated as invalid. See, e. g., Turner v. Dept. of Employment Security, 423 U.S. 44, 96 S.Ct. 249, 46 L.Ed.2d 181 (1975); Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514(1975); Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Ginsburg, Gender and the Constitution, 44 U.Cinn.L.Rev. 1 (1975).
¶22The legislative history and the statutory scheme leave no doubt that the exclusive purpose of Congress was to maintain or reunite family units which include United States citizen or permanent resident members. Not a shred of evidence has been produced to support the government’s claim that the statutory purpose was to prevent spurious paternity claims by unwed natural fathers. As one of the provision’s co-sponsors put it: “This bill is praiseworthy in its fundamental purpose — to reunite families.” 103 Cong.Rec. 15497 (1957) (remarks of Senator Pastore). See also, H.R.Rep. No. 1199, 85th Cong., 1st Sess. 7-8 (1957); H.R.Rep. No. 1365, 82d Cong., 2d Sess. 29 (1952); 1957 U.S.Code Cong. & Admin.News, pp. 2020-2021; 103 Cong.Rec. 16719 (1957) (remarks of Senator Kennedy); 103 Cong.Rec. 16307 (1957) (remarks of Representative Rodino) ; Immigration Service v. Errico, 385 U.S. 214, 219-220 and n. 9, 87 S.Ct. 473, 477-478, 17 L.Ed.2d 318 (1966); Nation v. Esperdy, 239 F.Supp. 531, 534-535 (S.D.N.Y.1965). The courts must distill the general legislative purpose from the legislative history, particularly where it supports a reasonable non-sexist interpretation. Weinberger v. Wiesenfeld, 420 U.S. 636, 648-52, 95 S.Ct. 1225, 1233-35, 43 L.Ed.2d 514 (1975). In view of the Congressional purpose to reunite families, there is no rational basis for the statutory classification denying the parent-child status to unwed natural fathers and their illegitimate children while automatically granting it to persons in other family relationships.
¶23Even if Congress were motivated by a desire to discriminate against men and illegitimates in a way harmful to American citizens, the statute could not stand.
¶24It is firmly established that a natural parent, whether father or mother, and a child, whether legitimate or not, have fundamental, constitutionally protected interests in mutual companionship and a life together.
“The rights to conceive and to raise one’s children have been deemed ‘essential,’ Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923), ‘basic civil rights of man,’ Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942), and ‘[r]ights far more precious . . . than property rights,’ May v. Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221 (1953).”
¶25Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972). See also, Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522*172(1975); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 169, 92 S.Ct. 1400, 1403, 31 L.Ed.2d 768 (1972); Levy v. Louisiana, 391 U.S. 68, 71, 88 S.Ct. 1509, 1511, 20 L.Ed.2d 436 (1968).
“It is no less important for a child to be cared for by its . parent when that parent is male rather than female. And a father, no less than a mother, has a constitutionally protected right to the ‘companionship, care, custody, and management’ of ‘the children he has sired and raised, [whjch] undeniably warrants deference and, absent a powerful countervailing interest, protection.’ Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972).”
¶26Weinberger v. Wiesenfeld, 420 U.S. 636, 652, 95 S.Ct. 1225, 1235, 43 L.Ed.2d 514 (1975).
¶27Courts now recognize that unwed fathers, like mothers, often have strong ties of affection to their illegitimate children and desire a continuing relationship with them. See, e. g., Miller v. Miller, 504 F.2d 1067 (9th Cir. 1974) (per curiam) (statute permitting adoption without notice to natural father of illegitimate unconstitutional); People ex rel. Slawek v. Covenant Children’s Home, 52 Ill.2d 20, 284 N.E.2d 291 (1972) (statute precluding father of illegitimate from asserting right to child and denying custody unconstitutional); In Re Mark T., 8 Mich.App. 122, 154 N.W.2d 27, 35 (1967) (custody of illegitimate child awarded to father after mother’s release of child for adoption) and cases cited 154 N.W.2d at 33 n. 7, 154 N.W.2d at 35 n. 13; R. v. F., 113 N.J.Super. 396, 273 A.2d 808 (Juv. & Dom.Rel.Ct.1971) (denying father and his natural child of right to see each other deprives them of equal protection) ; Application of Juan R., 374 N.Y.S.2d 541 (Fam.Ct.1975) (putative father who has established paternity may bring action to acquire visiting rights without litigating custodial issues); Stone v. Chip, 68 Misc.2d 134, 326 N.Y.S.2d 520 (Fam.Ct.1971) (criticizing rule that mother should have child absent proof she is unfit); Conley v. Johnson, 24 N.C.App. 122, 210 S.E.2d 88 (1974) (court may order visitation rights for father of illegitimate despite mother’s objection); Hammack v. Wise, 211 S.E.2d 118, 121 (W.Va.1975) (father awarded custody of illegitimate child); State ex rel. Lewis v. Lutheran Social Services, 59 Wis.2d 1, 207 N.W.2d 826 (1973) (father of illegitimate must be given a hearing on termination of his parental rights); K. Davidson, R. Ginsburg and H. Kay, “Text Note: Illegitimacy and Sex Based Discrimination,” Sex Based Discrimination 309-329 (1974); Note, The Emerging Constitutional Protection of the Putative Father’s Parental Rights, 70 Mich.L.Rev. 1581 (1972).
¶28State legislatures are systematically revising laws in order to expand the parental rights of unwed fathers. See, e. g., Fla.Stat.Ann. § 63.062 (1974); Hawaii Rev.Laws § 578-2 (Supp.1974); S. H.Ill.Ann.Stat. ch. 4, §§ 9.1-1, subd. E, 9.1-8, 9.1-12a (1975); Burns Ind.Stat. Ann. § 31-3-1-6 (Supp.1975); 19 Me. Rev.Stat.Ann. § 532 (Supp.1975); Mich. Comp.Laws Ann. § 710.3, subd. a (Supp.1973); Minn.Stat.Ann. §§ 259.-24, 259.26, 259.261 (Supp.1975); N.D.C.C.A. § 14-15-20 (1971); R.I.Gen. Laws § 15-7-5 (Supp.1974); Utah Code Ann. § 78-30-4 (Supp.1975); Va.Code § 63.1- 225 (Supp.1975); Wash.Rev.Code Ann. §§ 26.32.030, 26.32.085, 26.24.190, 26.28.110 (Supp.1974); Wisc.Stat.Ann. ch. 263, § 48.02(ii), 48.42, and 48.425 (Supp.1975).
¶29This clear trend is consonant with national policy recognized by Congress in its adoption of the Equal Rights Amendment and in its enactment of a series of other statutes designed to overcome outmoded concepts of sex discrimination. See, e. g., Proposed Constitutional Amendment, S.J.Res. 9, 92d Cong., 1st Sess., 118 Cong.Rec. 9568 (1972), H.R.J.Res. 208, 92d Cong., 1st Sess., 117 Cong.Rec. 35782 (1971); Civil Rights Act of 1964, Title VII, 42 U.S.C. § *1732000e-5 (1970), Equal Pay Act of 1963, 29 U.S.C. § 206(d) (1970).
¶30The fact that Congress has not yet had the opportunity to winnow through the enormous federal statutory materials to carry out its clear present policy gives added force to the argument that the vestigial remainder of such discrimination embodied in the Act should be closely reviewed by the courts.
¶31Social science literature and empirical studies illustrate why courts, as well as legislatures, no longer allow legislative exclusion of fathers of illegitimates from statutory benefits. Such discrimination is based on an archaic and over-broad stereotype of unwed fathers. Most pregnancies result from exclusive long-term relationships between the father and mother. M. Sauber and E. Rubinstein, Experiences of the Unwed Mother as a Parent 27 (1965); Herzog, “Some Notes About Unmarried Fathers,” 1966 Child Welfare 194; Pope, “Unwed Mothers and Their Sex Partners,” 29 J. of Marriage & the Family 555, 558 (1967). Many fathers not only continue the relationship with the mother after the child’s birth, Sauber and Rubinstein, supra, at 53, but also demonstrate genuine interest in and concern for their children. R. Pannor, F. Massarik, and B. Evans, The Unmarried Father 92 (1971); Chaskel, “Changing Patterns in Services for Unmarried Parents,” 49 Social Casework 3, 10 (1968); Wessel, “A Physician Looks at Services for Unmarried Parents,” 49 Social Casework 11,12 (1968).
¶32Even those fathers not living with their children assume many of the functions of fatherhood vital to the well-being of children, including financial and emotional support. One statistical study' found that between 59% to 83% of these fathers contribute money for their child’s expenses and approximately 70% visit their children. Ewer, 1971 Maternal and Child Health Service, Project H-214-2, Characteristics of AAPP Unwed Fathers — A Descriptive Study 2, Table 33 (unpublished, Div. of Research, Maternal and Child Health Service, HSMHA).
¶33An even more striking indication of the strength of the fathers’ parental commitment is that an increasing number of illegitimate children are living with their fathers. In 1970 13.9% of the children under eighteen living with single parents, that is, parents who have never been married, lived with their single fathers, as compared to 9.2% in 1960. U.S.Bur. of the Census, 1 U.S. Census of the Population 1970, Characteristics of the Population, Pt. 1, U.S. Summary — See. 2, Table 206 (1973); id., U.S. Census of the Population 1960, Table 185 (1963).
¶34The three plaintiff families are good examples of the variety of situations in which strong familial bonds tie illegitimate children to their fathers. Ramon Fiallo’s parents, although unmarried, have functioned as a family since the child’s birth. Cleophus Warner and the Wilson boys have been supported financially by their fathers since birth. They now depend upon their fathers to be their sole parents because of a mother’s choice to live without the child in one case and the mother’s death in the other.
¶35The challenged provisions, by excluding only fathers and their illegitimate children from statutory benefits, are based upon an irrebuttable presumption that fathers do not have close family ties with their illegitimate offspring, a presumption belied by the statistical evidence, sociological evaluation of family life, and the facts in the three cases before us. Such a presumption without basis in fact is invalid. See, e. g., Cleveland Bd. of Ed. v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); United States Dept. of Agriculture v. Murry, 413 U.S. 508, 93 S.Ct. 2832, 37 L.Ed.2d 767 (1973); Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973). Cf. Note, The Irrebuttable Presumption Doctrine in the Supreme Court, 87 Harv.L.Rev. 1534 (1974).
¶36*174Whatever assumed basis there may once have been for such sexist presumptions no longer exists. Rationality must be viewed in the light of current knowledge. See Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970).
¶37Even if we accepted the government’s contention that the natural fathers of illegitimate children were singled out by Congress to prevent spurious claims, the statutory scheme is not rationally related to that end. See Jimenez v. Weinberger, 417 U.S. 628, 634-636, 94 S.Ct. 2496, 2500-2501, 41 L.Ed.2d 363 (1974), where the Court invalidated provisions of the Social Security Act denying children’s insurance benefits to a subclass of illegitimate children because the structure of the statute was not reasonably related to the purported purpose, prevention of spurious claims.
¶38Paternity or maternity must be claimed and proven in cases involving legitimate children, legitimated children, step-children and illegitimate children to the satisfaction of immigration and consular officials. The burden of proof of any familial relationship is on the United States citizen or permanent resident and the alien relative. Immigration authorities may require birth certificates, marriage certificates, baptismal certificates, school records, census records, affidavits, letters, photographs, remittances, proof of custody, proof of support, a blood test, personal testimony, and other evidence. 8 C.F.R. § 204.2 (1975). The potential for spurious claims is as great for those included in the statutes’ definitions of parent and child as for illegitimate children and their fathers. Women claiming to be mothers of illegitimate children and men claiming to be fathers of legitimated, legitimate, or illegitimate children in a step-child situation, and their respective children, would have as much difficulty or ease in presenting fraudulent proof as would a man claiming to be the father of an illegitimate child and his child.
¶39And yet, quota restrictions are waived in the case of a step-child or legitimated child if paternity is proven, but a conclusive statutory presumption denies any opportunity of proof in the case of an illegitimate child. A conclusive presumption supposedly established to prevent spurious claims can not be upheld when the potential for fraud is similar for the excluded group and for groups receiving the statutory benefits. Jimenez v. Weinberger, 417 U.S. 628, 636-637, 94 S.Ct. 2496, 2501-2502, 41 L.Ed.2d 363 (1974). Cf. U. S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973); Vlandis v. Kline, 412 U.S. 441, 453-454, 93 S.Ct. 2230, 2237, 37 L.Ed.2d 63 (1973); Gomez v. Perez, 409 U.S. 535, 538, 93 S.Ct. 872, 875, 35 L.Ed.2d 56 (1973); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Glona v. American Guarantee & Liability Insurance Co., 391 U.S. 73, 76, 88 S.Ct. 1515, 1517, 20 L.Ed.2d 441 (1968). This rigid presumption must be replaced by “more individualized means” of determining the family relationship. Turner v. Dept. of Employment Security, 423 U.S. 44, 96 S.Ct. 249, 46 L.Ed.2d 181 (1975).
¶40Practically speaking, the government’s contention that the restrictive definition of parent is necessary to prevent spurious claims is nothing more than a plea on behalf of administrative convenience. But it has been clear for some time now that a scheme built upon administrative convenience cannot stand when invidious discrimination results. See, e. g., Frontiero v. Richardson, 411 U.S. 677, 690, 93 S.Ct. 1764, 1772, 36 L.Ed.2d 583 (1973).
¶41IV. Conclusion
¶42Plaintiffs’ request for summary judgment in their favor should be granted.