McMILLAN

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 In-

dies. 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. Es-

perdy, 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 step-

parent 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).

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Interim Decision #2844

literal interpretation given section 101(b)(1)(B) by the Ninth Circuit

are manifest. See generally concurring opinion of Board Member Ap-

pleman 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 chil-

dren of a United States citizen. The visa petitions will be approved.

ORDER, The appeal is sustained and the visa petitions are

approved.