MAFFER OF P—
In VISA PETITION Proceedings
A-12472655
Decided by Board June 21, 1962
Nonquota status—Orphans—Limitation of two to a family.
provision of section 205(c) limiting to two the number of petitions which
may be approved for one petitioner in behalf of a child as defined in section
101(b) (1) (E) or (F) does not include those children issued special nonquota visas without a petition under betaluu 4 of the Act of Septcmbor 11,
1957, prior to its amendment by the Act of September 9, 1959. (Overrules
Matter of M—, 9-542.
BEFORE- THE BOARD
DISCUSSION: The petition herein was denied on April 17, 1962.
The case came forward to the Board for review and final decision
pursuant to certification by the Officer in Charge, Tokyo, Japan.
Appeal by the petitioner was received subsequently.
The petitioner is a native-born United States citizen. He is serving in the United States Armed Forces in Japan. He filed this
petition pursuant to section 205 (b) of the Immigration and Nationality Act, as amended, requesting approval for nonquota immigrant
visa status in behalf of the beneficiary, an adopted alien son, under section 101(a) (27) (A) of the Immigration and Nationality Act.
The petitioner states that the beneficiary was born August 15, 1959,
at Yokohama, Japan; and that the adoptive parents have had legal
custody of such child during a period of two years after adoption,
all of which time the child has resided with them. A court document showing the adoption is attached to the petition. The beneficiary is now in Tokyo, Japan, with the petitioner and his spouse.
The family will come to the United States soon and reside in the
State of Connecticut.
The issue presented is whether the petitioner is precluded, as a
matter of law and precedent, from haying this petition approved
for nonquota immigrant visa status under section 101 (a) (27) (A)
of the Immigration and Nationality Act in behalf of the beneficiary,
his adopted child (section 101(b) (1) (E) of the Immigration and
Nationality Act, as amended), in view of the factual situation to
be noted and the provisions of current law.
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The evidence herein in our opinion shows [here has been a valid
adoption of the beneficiary. The petition has been denied on evidence of record showing that nonquota immigration visas were
issued previously (on applications by this petitioner) for two alien
children that were "eligible orphans" adopted by the petitioner and
his spouse. The visas were issued on May 29, 1959, pursuant to section 4(a) and (b) of the Act of September 11, 1957 (Public Law
p5 316). 1 The orphan children are still in. Japan. The Officer in
-
Charge has decided that the provisions of the immigration laws,
specifically section 205(c) of the Immigration and Nationality Act
as amended on September 26, 1961 (Public Law 87-301), limit the
number of nonquota visas that may be issued and/or the number of
visa petitions that may be approved for one petitioner in behalf of
a "child" as the term is defined in section 101(b)(1)(E) and (F)
of the Immigration and Nationality Act to two, and has denied the
petition on that basis. 2
1 This petitioner obtained two special nonquota visas on May 29, 1959. At
that time the term "eligible orphan" was defined in section 4(b) of the Act
of September 11, 1957, and the procedure to obtain a special nonquota visa
was set forth in section 4(a) of the Act. Under that statute an orphan
adopted by an American citizen automatically became entitled to a special
nonquota visa on application of the citizen petitioner to the United States
consular service. (Note 3.1 Montgomery v. Pireach, 299 F.2d 730 (C.C.A. 8,
1362)) Section 4(a) (repealed by section 24(a) of the Act of September 26,
1961) reads as follows:
On or before June 30, 1959, spacial nonquota immigrant visas may be issued
to eligible orphans as defined in this section who are under fourteen years of
age at the time the visa is issued. Not more than two such special nonquota
immigrant visas may be issued to eligible orphans adopted or to be adopted
by any one United States citizen and spouse, unless necessary to prevent the
separation of brothers and sisters.
2 The pertinent statute defining "adopted child" and a "child who is an eli-
gible orphan" is section 101(b) (1; (E) and (F) of the Immigration and Nationality Act, as amended by section 2 of the Act of September 11, 1957
(
Public Law 85-4116) ; also, as further amended by section 2 of the Act of
September 26, 1961 (
Public Law 87-301). Category "E" was added to section
101(b) (1) for the first time in 1957. Category "F" was added by the amendment on September 26, 1961. The statute, as amended, provides :
(b) As used in titles I and II—
(1) The term "child" means an unmarried person under twenty-one years
of age who is-
• •
(l) 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 parents for at least two years: • • •
(F) a child who is an eligible orphan. adopted abroad by a United States
citizen and spouse or coming to the United States for adoption by a United
States citizen and spouse: • • •
The term "parent" is defined in subsection (2) as follows :
(2) The terms "parent'.', "fathet", or "mother" mean a parent, father, or
wetter only where the relationship exists by reason of any of the circumstances set forth in (1) above.
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This petition, filed March 7, 1962, is to be adjudicated under current law, that is, the Immigration and Nationality Act as amended
on September 26, 1961. The procedure for obtaining nonquota or
preference quota status in behalf of an alien is outlined in section
205(b) of the Immigration and Nationality Act, as amended, which
currently provides in part as follows:
(b) Any citizen of the United States claiming that any immigrant is his
• * • child and that such immigrant is entitled to a nonquota immigrant
status under section 101(a) (27) (A), • • • may file a petition with the Attorney General. • • •
This petitioner has not heretofore filed a visa petition under section
205(b) in behalf of a "child adopted" as the term is defined in section 101(b) (1) (E) of the Immigration and Nationality Act,. Nor
.1„s he filed a visa petition in behalf of an eligible orphan child as
defined in section 101(b) (1) (F) and section 101(b) (6) of the Act.
The question we must decide is whether this petition may be approved when two nonquota visas have already been issued for orphan children on req sect of the petitioner on May 29, 1959. We
emphasize the fact that nonquota visas for those children were obtained without approved visa petitions filed pursuant to section
205(b) of the Immigration and Nationality Act, as amended. The
question is narrowed to a determination whether those children are
to be included in the limitation in section '205(c) of the Immigration and Nationality Act, as amended by section \'`b) of the Act of
September 26, 1961 (Public Law 87-301), to forbid the approval of
the instant petition. Section 205(c) currently reads:
… Not more than two such petitions may be approved for one petitioner in
behalf of a child as defined in section 101(b) (1) (E) or (F), unless necessary
to prevent the separation of brothers and sisters. • …
At the outset it is important to note that the provisions of section
205(c), Immigration and Nationality Act, quoted in the preceding
paragraph, with respect to a child who is an eligible orphan as
defined in section 101(b) (1) (F), relate to visa petition procedure
under section 205(b) and is new legislation. As such, we do not
believe the limitation therein was intended to revert hack and inelude eligible orphan ehildien'to whom special nonquota visas were
issued under special legislation, now repealed, under which a visa
petition was not required. It is our opinion that Congress intended,
through visa petition procedure, to establish safeguards for alien
orphan children in each case before a child could be brought to the
United States; and that only those children who are beneficiaries
of visa petitions come within the limitation allowing only two orphans to each petitioner. The language in section 205(c), therefore,
should be literally construed so that the benefits intended under the
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new legislation will result.' This interpretation of the wording in
section 205(c) is drawn from the fact that the emphasis is clearly
on the number of visa petitions that may be approved for one citizen in behalf of a child in category "F" of section 101(b) (1), and
not on the number of nonquota visas that have been issued to eligible orphans where no visa petitions were filed and approved.*
We, therefore, construe the context of section 205(c) of the Immigration and Nationality Act to mean simply that a limitation of
two is placed on the number of visa petitions that may be approved
by the Attorney General for one petitioner in behalf of a child
adopted, or an eligible orphan child, as those terms are defined in
section 101(b) (1) (E) and (F) of the Act. We find that Congress
has, in current legislation, provided a visa petition procedure for
eligible orphan children by reason of relationship; and that only
orphan children who are the beneficiaries of visa petitions come
within the provisions of section 205(c) to limit two orphan children
to each petitioner. Any other interpretation or construction of the
language in the statute, it semis to us, would he leading meaning
into it that is not there. In this connection we have not overlooked
the distinction between the procedure under the 1957 Act to obtain
nonquota status for an eligible orphan and the procedure requiring
approval of a visa petition in every case. The definition of the
term "eligible orphan" was added to section 101(b), contemporaneously with the amendment to section 205(c) on September 26, 1961
(Public Law 87-301) . That definition states that an "eligible or-
3 In Matter of M—, 9-542, the Assistant Commissioner, Immigration and
Naturalization Service, denied a visa petition in behalf of an eligible orphan
child, presented for approval under current law by interpreting the provisions
of section 205(c) to be a continuance of the limitations in prior legislation
relating to eligible orphan children and to forbid a citizen to obtain nonquota
status for more than two orphans. M—, the petitioner, had obtained nonquota
visas for two orphans previously, one under the Itefugee Act of 1953, and one
under section 4 of the Act of September 11, 1957. Petition for nonquota status
for a third child was denied. However, the decisions of the Immigration and
Naturalization Service as precedents are not binding on the Board.
4 Section 4 of the Act of September 11, 1957, was amended September 9,
1959 (Public Law 86-253) to require a petition for an orphan child. Under
the rule of the instant case, two such approved petitions would, of course,
preclude any further petition under section 205(c), as amended by section
3 (b) of the Act of September 26, 1961 (
Public Law 87-301).
5 Section 101(b) (6) reads as follows:
(6) The term "eligible orphan" means any alien child under the age of
fourteen at the time at which the visa petition is filed pursuant to section
MVO) wno is an orphan oecause or toe death or disappearance of both parents, or because of abandonment, or desertion by, or separation or loss from,
both parents, or who has only one parent due to the death or disappearance
of, abandonment, or desertion by, or separation or loss from the other parent,
and the remaining parent is incapable or providing care for such orphan and
has in writing irrevocably released him for emigration and adoption.
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6254377—RS
phan" means any alien child who is under the age of 11 years at
the time at which the visa petition is filed pursuant to section
205 (b) who is an orphan. The distinction is that an eligible orphan child under current law does not mean a child who has been
issued a nonquota visa.
Construing the pertinent current legislation as we do, and applying fair humanitarian standards in the administrative adjudication
of the issue so that the family unit will not be dissolved, we see no
reason to preclude the approval of this petition.
.ORDER: It is ordered that the petition be approved for nonquota
visa status.
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