MATTER Or G
In DEPORTATION Proceedings
A-7444373
Decided by Board May 28, 1959
Act of September 11, 1957, section 7—Eligibility, parent-child relationship.
An alien parent of an adult United States citizen child is a "parent" within
the definition of section 101(b) (1) and (:‘') of the Immigration and Nationality Act and, therefore, eligible to qualify for relief under section 7 of the
Act of September 11, 1957. (Overrules Matter of C , A-7-144373, Int.
Dec. No, 954.)
CHARGE:
Order : Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251(a) (1), 1.952 add—
Excludable at entry as an alien who was not a nenquota immigrant
as specified in his visa.
BEFORE THE BOARD
Discussion: The case comes forward pursuant to the provisions
of S CUR 3.1(h) (1) (iii) requesting referral to the Attorney General for review.
The record relates to a native and citizen of Hungary, born
December 23, 1897, who first entered the United States for perma
nent residence in 1913. He became a naturalized citizen on October
23, 1922. The respondent made several trips to Czechoslovakia, the
last absence being from May 1939 until his return to the United
States on March 28, 1950. On October 7, 1946, the respondent refused an opportunity for repatriation at the American Consulate in
Prao-ue; Czechoslovakia, and thereupon lost his American citizenship
by expatriation through residence abroad.
The respondent's first wife had died in 1924 and his second wife
whom he married in 1926 became a naturalized citizen in 1928. The
respondent's relationship with his second wife was not harmonious
and after a number of separations the wife secured a divorce on
January 24, 1945, in the State of New Jersey while the respondent
was in Czechoslovakia, service being made by publication. Subsequent to the divorce, she paid a short visit in 1947 to the respondent
ill Czechoslovakia. The e ■ idence indicates respondent's awareness
of the fact that his - Wife had divorced him. Despite the divorce,
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the second wife, a United States citizen, filed a visa petition in the
respondent's behalf as a result of which he obtained a nonquota visa
under section 4(a) of the Immigration Act of 1924 from the American Consulate at Prague, Czechoslovakia, on December 12, 1949, and
was duly admitted on March 28, 1950. In connection with a petition
for naturalization in 1955, the respondent testified that he had been
separated from his wife for the past, 15 years but did not disclose
the fact of divorce, claiming he did not believe that she had divorced
him.
In deportation proceedings the special inquiry officer denied all
discretionary relief and ordered deportation on the charge contained
in the order to show cause. On appeal, the Board on May 13, 1958,
sustained the finding of deportability, but in view of his 30 years'
residence in the United States and the fact that he had a citizen son
in this country ordered the proceedings reopened to permit the respondent, to establish eligibility for relief under the last clause of
section 7 of the Act of September 11, 1957 (Public Law 85-316),
and granted advance permission to reapply for admission after
deportation. A reopened hearing was given the respondent, and the
special inquiry officer in a decision dated June 16, 1958, found the
respondent ineligible for relief under section 7 of Public Law 85 316
-
on the theory that the respondent was not a "parent" as defined in
section 101(b) (1) and (2). This conclusion was based on the fact
that respondent's son was over 21 years of age, whereas the definitions of "child" and "parent" in section 101(b) (1) and (2) of the
Immigration and Nationality Act refer to the child as being an
unmarried person under 21 years of age. By order dated September 25, 1958, the Board affirmed the finding of the special inquiry
officer without discussion. The Board merely adopted the language
of •the special inquiry officer who quoted section 14 of Public Law
85-316 which provides that except as otherwise specifically provided
in this Act, the definitions contained in subsection (a) and (b) of
section 101 of the Immigration and Nationality Act shall apply to
section 7 of this Act, and then adopted the conclusion of the special
inquiry officer that since there was nothing "otherwise specifically
provided," the definitions of section 101(b) (1) and (2) of the
Immigration and Nationality Act controlled the meaning of the
word "parent" as used in section 7 and that the definition stated
that the relation of parent exists only when the offspring is an unmarried person under 21 years of age. Ppon reconsideration, a further study of the statutory language and of the legislative history
leads us to the conclusion that the strict interpretation of the special
inquiry officers should be modified.
The term "parent" is defined in relation to the term "child" in
section 101(b) (1) and (2) of the Immigration and Nationality Act
and reads as follows!
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(1) The term "child" means an unmarried person under twenty-one years
of age who is—
(A) a legitimate child; or
(B) a stepchild, whether or not born out of wedlock, provided the child
bad not reached the age of eighteen years at the time the marriage creating
the status of stepchild occurred; or
(C) a child legitimated under the law of the child's residence or domicile,
or under the law of the father's residence or domicile, whether in or outside
the United States, if such legitimation takes place before the child reaches
the age of eighteen sears and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation.
(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 ;
(E) a child adopted while under, the age of fourteen years if the child has
thereafter been in the legal custody of, and has resided with, the adopting
parent or pa rentb for at least two years: Provided, That no natural parent of
any such adopted child shall thereafter, by virtue of such parentage, be
accorded any right, privilege, or status under this Act.
(2) The terms "parent," "father," or "mother" mean a parent, father, or
mother only where the 7 eluttun.ship eirlata by recnma, of any of the oiroum
stances set forth in (1) above. (Emphasis 'supplied.)
The Department of State, in a case involving an illiterate mother
of a twenty-nine year old American citizen, held that the mother
was a "parent" and entitled to the exemption from illiteracy provided in section 212(b) on the ground that the language contained
in section 101(b) (2) which reads "circumstances set forth in (1)
above" refers to circumstances leading to a child-parent relationship
as specified under subparagraphs (A), (B), (C), (D), or (E);
namely, a legitimate birth, a stepchild relationship, a legitimated
child, illegitimacy in relation to the mother, or adoption. The word
"circumstances' as used in section 101(b) (2) does not relate to the
words "unmarried" or "under twenty-one years of age" as used in
section 101 (b) (1) of the act. (Note 7, Revised August 1, 1053, Visa
Handbook 22 CFR 42.1).
In view of the differing interpretations, the Commissioner of the
Immigration and Naturalization Service requested that the conflict
he resolved. The Commissioner, while not expressing any views on
the matter, may be regarded as tacitly agreeing with the interpretation reached by the special inquiry officer, since the Service Representative, in oral argument on July 24, 1958, was content to rest
on the record.
In a communication dated May 6, 1959, the Department of State
expanded its views expressed in the note referred to above. The
Department agreed that the terms "parent" and "child" are interrelated and that the definition of a "child" as contained in section
101(b) (1) of the act is a limitation upon the meaning of the term
"parent." It did not agree, however, that an alient is a "parent"
only where the person through whom such alien claims zin exemp-
357
tion, benefit, or status under the immigration laws is unmarried and
under twenty-one years of age. This view is based on a belief that
the crucial word in the definition of "parent" is relationship. With
respect to the exemption of a parent from the illiteracy test under
section 212(b), the State Department resolved the doubt in favor
of that interpretation which tended to give effect to the legislative
purpose in providing the exemption in the first place, namely, unification of the family. Since the principal consideration which led
to the enactment of the Act of September 11, 1957 was the unification ,of families, an interpretation of the word "parent" as used in
section 7 of the At of September 11, 1957 which tended to keep
members of families separated would seem to be inconsistent with
the legislative purpose. In sections 5 and 6 of the Act of September 11, 1957, Congress granted discretionary relief to any alien who
"has a son or daughter who is a United States citizen or an alien
lawfully admitted for permanent residence …." The words "son"
and "daughter" are broader than the word "child" and, therefore,
section 7 of the Act of September 11, 1957, which deals with "parents" of citizens or permanent resident aliens, must be given a more
restrictive application than sections 5 and 6, a result which it was
doubtful Congress ever contemplated. The Department of State
pointed out that if only an unmarried-alien under twenty-one years
of age could benefit under the provisions of section 202(a) (4) (which
permits an alien born within any quota area in which neither of his
parents was horn and in which neither of his parents had a, residence
at the time of such alien's birth to be charged to the quota area of
either parent), the legislative purpose would be defeated since this
rule of quota chargeability- was intended primarily for the benefit of
adult aliens. Similarly, the adoption of the strict limitation as to
child as an unmarried person under 21 years of age in relation to
the various categories would, if applied to the term "parent," limit
section 203(a) (2) of the Immigration and Nationality Act to unmarried adult United States citizens, since that section refers to
parents of citizens over twenty-one years of age and makes no mention of their marital status which is referred to in the definition
under section 101(b) (1).
There can he. little doubt that the legislative history of the Immigration and Nationality Act clearly indicates that the Congress intended to provide for a liberal treatment of children and was concerned with the problem of keeping families of United States
citizens and immigrants united.' In waiving the excluding provisions of existing law relating to persons afflicted with tuberculosis,
the Congress desired that this waiver be extended in behalf of close
I united States Code Congressional and Adm inistrative sews, 85th Congress,
1st Session, 1957, pp. 20, 21.
358
relatives of United States citizens or aliens admitted for permanent
residence in the belief that enactment of this section, under which
families of United States citizens and of aliens lawfully residing in
the United States would be given an opportunity to be reunited, was
not contrary to the public interest, while it would greatly contribute
to the stability of the home life of many American and immigrant
families directly affected. Similar considerations were expressed in
granting discretionary authority in waiving grounds of exclusion in
the cases of spouses, parents or children (including minor adopted
children) - of citizens..or lawful resident, aliens and in providing for
leniency for those applications made by close relatives of United
States citizens and permanent resident aliens. 2
It is, therefore, apparent from the legislative history that Congress
had in mind the family unit as such, that is, close relatives of United
States citizens and permanent resident aliens, which it desired to
keep together in order to alleviate the hardship of enforced separations. Of course, as to the term "child," the restrictive limitations
of age and marital status were kept but the categoric:, of relationship
were widened to include illegitimate stepchildren, illegitimate children in relation to the mother and adopted children. While for
immigration purposes a "child" ceases to be a. child even if it fits
into the various categories when it reaches the age of twenty-one or
becomes married, the parent, once the required relationship has been
established, always remains a parent. This conclusion is warranted
not only by a study of the legislative history but from a careful
reading of the words of the statute. In view of the conclusion
reached, the conflict has been resolved and the need for certification
to the Attorney General no longer exists.
The meritorious factors in the case has already been dwelt upon.
The respondent has already been granted Advance permission to
reapply for admi::ion after deportation. In addition, we will authorize voluntary departure and preexamination. In preexamination
proceedings, the respondent will be eligible for consideration of the
relief contained in section 7 of the Act of September 11, 1057.
Order: It is ordered that the outstanding order and warrant of
deportation be and the same- is hereby withdrawn.
It is further ordered that, the alien be. permitted to depart, from
the United States voluntarily without expense to the Government, to
any country of his choice, within such period of time, in any event
not less than 90 clays, and under such conditions as the officer-incharge of the district deems appropriate.
It -;-s further ordered that preexamination be authorized, conditioned upon a showing by the alien that he can obtain the prompt
issuance of an immigrant visa.
2 Congressionat Record, Vol. 103, :No. 157, Angus 28, 1957, pages 14789-14790.
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