BONNETTE

Interim Decision #2840

MATTER OF BONNETTE

In Visa Petition Proceedings

A-24209799

Decided by Board November 5, 1980

(1) Under the rule laid down in the Ninth Circuit in Palmer v. Reddy, 622 F.2d 463 (9 Cir.

1980), a visa preference is available to beneficiaries who become stepchildren prior to

their eighteenth birthday as a class without qualification. Matter of Moreira, Interim

Decision 2720 (BIA 1979) and Matter of Moreira, Interim Decision 2792 (BIA 1980) no

longer apply in the Ninth Circuit.

(2) Beneficiary of a visa petition who was allegedly born out of wedlock to petitioner's

husband became the petitioner's stepchild for immigration purposes in 1948 when the

petitioner married the beneficiary's father, even though the petitioner and her hus-

band did not know of beneficiary's existence until 1979, and despite the absence of

evidence of parental interest or support prior to the beneficiary's eighteenth birthday.

(3) Where the beneficiary of a visa petition did not see his alleged stepmother and

putative father until he was age 32, case remanded by Board for proof of identity of

parties.

ON BEHALF OF PETITIONER: Dana Marks Keener, Esquire

Lawrence N. DiCostanzo, Esquire

Simmons and Ungar

317 Washington Street, Suite 301

San Francisco, California 94111

By: Milhollan, Chairman; bianiatis and Maguire, Board Members. Board Member

Applernan, Concurring

This is an appeal from the decision of the District Director, dated

January 10, 1980, denying a visa petition filed by a United States

citizen petitioner to accord first-preference status to the beneficiary as

her stepson under section 203(a)(1) of the Immigration and National-

ity Act, 8 U.S.C. 1153(a)(1). The record will be remanded for further

proceedings.

The petitioner, a United States citizen, seeks first-preference status

on behalf of the beneficiary as her stepson. The beneficiary, a native

and citizen of the Philippines, was born out of wedlock to the peti-

tioner's husband and a woman he never married. The petitioner mar-

ried the beneficiary's father in 1948, when the beneficiary was almost 2

=OM

Interim Decision #2840

years old. The petitioner and her husband did not become aware of the

existence of the beneficiary until 1979. In his denial of the visa petition,

the District Director stated that there was no evidence that the benefi-

ciary has ever resided with the petitioner, or that she has had an active

,

parental interest in the beneficiary's support, instruction, and general

welfare.

In the instant case, it is conceded that the petitioner, the stepparent,

had not shown an interest in the stepchild's welfare prior to his

eighteenth birthday. While the circumstances of the case may not

meet the test prescribed by this Board in Matter of Moreira, Interim

Decisions 2720 and 2792 (BIA 1979 and 1980), we are bound in this case

to apply the rule announced in Palmer v. Reddy, 622 F.2d 463 (9 Cir.

1980), which is binding in the Ninth Circuit. In Palmer, the court held

that visa preference is available to beneficiaries who become stepchil-

dren prior to their eighteenth birthday as a class without further

qualification. Therefore, to the extent that the decision of the District

Director relied on Matter of Moreira, supra, it is hereby overruled.

There remains the issue of the beneficiary's identity. He claims to be

the natural son of the petitioner's husband. The petitioner and her

husband first learned of the beneficiary in 1979, when he> was 32 years

old. The beneficiary submitted a photocopy of a birth certificate issued

by the municipal authorities in Manila, certifying that a child was

born to the petitioner's husband and another woman in October 1946.

We are not yet convinced that he is in fact the child named in the

proffered certificate. The petitioner argues that the beneficiary pro-

vided her with additional evidence such as: a 1946 letter from the

petitioner's husband to the natural mother, and four snapshots of the

two when they lived together in the Philippines. The petitioner should

submit the letter and the photographs in support of this visa petition

together with any additional evidence which may be available to prove

the identity of the parties. Consequently, we will remand the record for

further proceedings to provide the petitioner an opportunity to more

fully establish the identity of the beneficiary as the natural son of the

petitioner's husband.

ORDER* The record is remanded to the District Director for

further proceedings consistent with the foregoing opinion.

CONCURRING OPINION: Irving A. Appleman, Board Member

I concur with the majority. If the parties to this petition are whom

they claim to be, we are compelled to grant the petition under Palmer

v. Reddy, 622 F.2d 463 (9 Cir. 1980). According to that decision,

"stepchild", as defined in 8 U.S.C. 1101(b)(1)(B), is to be interpreted

literally and a "visa preference is available to stepchildren as a class

without further qualification."

588

Interim Decision #2840

Nevertheless, I cannot help but feel some concern when Palmer v.

Reddy is applied in this case. The beneficiary was allegedly born out of

wedlock in 1946, in the Philippines. The claimed putative father mar-

ried the petitioner in 1948. It is claimed that neither the petitioner nor

the putative father knew of the existence of the beneficiary until 1979.

By then the beneficiary was 32 years of age, married and divorced, and

with three children of his own. (By then, also, his own mother, who

presumably reared him, was deceased.) According to the brief on

appeal, the beneficiary carried out his search for his father, "armed

only with four old photographs" of his mother and the petitioner's

husband and a "letter of 1946" to his mother from the petitioner's

husband. We do not have this evidence in the record before us, al-

though we do have a birth certificate showing Clarenz Bonet, Sr., as the

father of an illegitimate child, Clarenz Bonet, Jr., born October 1,1946,

in the Philippines. The petition and brief set forth the date of birth as

November 2, 1946.

In the normal familial relationship there is a continuity of commu-

nication which assures the existence of significant evidence of a rela

tionship. That evidence is not in, the file before us. In the circumstances

of this case, it is not unreasonable to ask for proof that the birth

certificate relates to this claimant and that he is indeed who he claims

to be. I therefore concur in a remand so that this aspect of the record

may be developed.

It should be noted that these are cases where legitimation, as recog-

nized and defined under 8 U.S.C. 1101(b) (1)(C), has not occurred. Proof

of identity and relationship are not always present. Opportunities for

fraud and fraudulent substitution do exist. These considerations may

have contributed to the requirement that the relationship be estab-

lished before the child reaches the age of 18. We must also assume that

the Congress knew what it was doing in 8 U.S.C. 1101(b)(1)(D), when it

prescribed that immigration benefits to an illegitimate child may flow

from its natural mother but not from the putative father. In our

experience, "step child" petitions involve illegitimate children of the

father (born in or out of wedlock, see e.g., Matter of Stultz,15I&N Dee.

362 (BIA 1974,1975; A.G. 1975)) more often than legitimate offspring of

a prior marriage.' For this reason, petitions of this sort are founded on

a relationship to the stepmother, and not the putative father. With the

test set up in Matter of Moreira, Interim Decision 2792 (BIA 1980), it

was possible to determine the existence of at least a minimal

stepmother relationship in harmony with the will of the Congress to

encourage family union (or reunion). At the same time, the rule

discouraged a direct violation of the prohibition against benefits flow-

' In fairness, this may be because of the appellate level at which we view them.

589

Interim Decision #2840

ing from the putative father to his illegitimate child. Cf. Matter of

Soares, 12 I&N Dec. 653 (D.D. 1967; BIA 1968).

The issue was more than academic. For example, in Matter of Amado

and Monteiro, 13 I&N Dec. 179 (BIA 1969), the petitioning

"stepmother" had never had any contact with, and had never seen,

either child. The children had lived with their respective natural

mothers since birth (they were then aged 15 and 12, respectively) and

presumably would want to continue living with them as soon as they

could come to the United States. It appeared that the proof of the

joining together of a family unit with the stepmother in the United

States was highly tenuous. Again, many of these petitions are filed by

and for siblings, one of whom is legitimate, the other not, with the

stepmother as the common parent. It is perfectly conceivable to have a

case where, upon learning of the existence of an illegitimate, adulter-

ine child, the "stepmother" rejects the child and possibly even the

father/husband and will have nothing to do with them thereafter.

Under the "literal" rule of Palmer v. Reddy, a petition filed by a half-

brother or sister, for that sibling, will have to be approved despite the

fact that neither of them may have set eyes on one another, and that

they are claiming through a "stepmother" who completely rejected the

adulterine child and still'does. Further, what does the Service do with a

petition a "bLepchild" Files in due course after admission, in behalf of

his natural mother, with whom he has spent his entire life and who has

a far better claim to relationship in most cases, than the peti-

tioner/stepmother? He may be, somewhat uniquely, one with two

mothers for immigration purposes.

Regrettably, "the unqualified language" of 8 U.S.C. 1101(b)(1)(B), as

viewed by the Court in Palmer v. Reddy, is in innate conflict with

subparagraph (D) of the same section, and, in the language of an

earlier decision, "imputes to Congress the unlikely intention of favor-

ing a relationship by affinity over a closer one of consanguinity."

Matter of Saaree,12 I&N Dec. 653, 662 (D.D. 1967); (BIA 1968). This is

not the time nor is it the purpose of this separate opinion to rehash the

complexities of subparagraph B. Id. at 656 ff. Suffice it to say that

Matter of Moreira, supra, now vitally wounded, if not moribund, was

an attempt by the Board to bring some harmony to the discordant

elements in Matter of W—, 7 I&N Dec. 685 (BIA 1958); Matter of

Soares, supra; Nation v. Esperdy, 239 F.Supp. 531 (S.D_N.Y. 1965); and

Andrade v. Esperdy, 270 F.Supp. 516 (S.D.N.Y. 1967).

The statutory aim is benign and the true stepchild should be joined

with his family with the minimum of difficulty. Petitions for children

are sympathetic and even the desire of the putative father to defeat the

mandate of the statute is perfectly understandable. Yet the function of

this Board is to interpret the statute as we believe the Congress

590

Interim Decision #2840

intended, and one cannot help but believe the Congress may not have

intended the results to which a literal reading of Palmer v. Reddy,

supra, will sometimes bring us. While Palmer v. Reddy resolves the

issue, at least in the Ninth Circuit, it may not solve the problems.

RCA