THE

Interim Decision #1541

Mayan or TsDE

In Visa Petition Proceedings

A-14048590

"Decided by Board September 13, and December 16, 1965

Petition by a naturalized U.S. citizen, born out of wedlock, to accord preference

statue 'under section 202(a) (2), Immigration and Nationality Act, as

amended, on behalf of beneficiary, her stepmother through marriage to her

natural father when petitioner was 4 years of age, is granted since a valid

stepchild-stepparent relationship exists, petitioner's paternity having been

acknowledged by her natural father shortly after her birth and folkiwing

the death of her natural mother in 1931; a bona fide family unit between

petitioner, beneficiary, and her natural father having existed until petition-

er's immigration to the United States in 1953; and dose family ties between

petitioner and beneficiary have continued to the present day. Matter of

IV—, 7 1. & N. Dec. 685, overruled; of. Matto^ of Aloe, Int. Dec. No. 1542.]

BEFORE THE BOARD

The ease comes forward on motion of the petitioner requesting -the

Board to reconsider its prior denial of the visa petition because of

the decision in Nation v. Evenly, 239 F. Supp. 531 (S.D. N.Y.,

1965).

The petitioner, a native of Batavia, West Java, Indonesia, born

on April 12, 1931, female, a naturalized citizen of the United States,

seeks preference status under section 203(a),(2) of the Immigration

and Nationality Act on behalf of the beneficiary, her stepmother.

The beneficiary is a native and citizen of Djakarta, West Java, In-

donesia, born on November 8, 1918. The petitioner was born out of

wedlock, her natural mother died in Indonesia on. May 26, 1931, her

natural father acknowledged parentage on June 5, 1931, and tne

natural father married the beneficiary on March 31, 1935, when the

petitioner was about four years of age.

We originally considered this ease on January 24, 1964, on appeal

from the decision of the District Director, Detroit District, dated

November 22, 1963, denying the visa petition for the reason that the

beneficiary is not a parent es defined in section 101(b) (2) of the

Immigration and Nationality Act in that the Petitioner fails to meet

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Interim Decision #1541

the status of a stepchild as defined in section 101(b) (1) (B) of the

Act; and that a child born out of wedlock derives no status as a

stepchild by reason of the marriage of the natural father to a person

other than the child's mother. In affirming this order of the District

Director, we relied on Matter of W—, 7 I. & N. Dec. 685. However,

we remanded the case to explore the possibility of legitimation under

the law which prevailed in Batavia, West Java, Indonesia, which

was the former Netherlands East Indies at the time of the petitiOn-

er's birth. On October 22, 1961 we found that the legitimation pro-

cess appeared to have been incomplete, since according to Article

275 of the Civil Code for Indonesia, the legitimation of a legally

acknowledged child requires a declaration of the Governor-General

(and at present the President of the Republic of Indonesia) after

consultation with the Supreme Court, and dismissed the appeal.

The term "child" is defined in section 101(b) (1) (B) to include a

stepchild, whether or not born out of wedlock, provided the child had

not reached the age of 18 years at the time the marriage creating

the status of stepchild occurred. In Matter of 1V, 7 I. & N. Dec.

685, we traced the legislation as amended by the Act of September

11, 1917, which at the.same time, in section 101(b) (1) (B), amended

the term "child" to include an illegitimate child, by, to whom, or on

whose behalf, a status, privilege or benefit is sought by virtue of the

relationship of the child to its natural mother. We concluded that

the amendatory legislation was intended to clarify the law so that

a child born out of wedlock in relation to its mother could be inclu-

ded in the term "stepchild" and thereby enjoy the same immigration

status as other stepchildren but the amendment did not call for any

change in the prevailing administrative view that a child born out

of wedlock derives no benefit, status or privilege under the immigra-

tion laws in relation to its natural father, and concluded that the

illegitimate child of a father married to a United States citizen was

not the latter's stepchild and could not qualify for nonquota or pre-

ference status.

In the case of Nation Esperdy, 239 F. Supp. 531, the court for

the Southern District of New York examined .the legislative history

and concluded that the respective committee reports were not con-

clusive but tended to suggest conflicting interpretations. In view of

the express congressional policy of keeping family units together,

and in the absence of special language to the contrary, the court

adopted the "plain meaning" rule that when Congress in 1957 defined

stepchild in the broad language of "whether or not born out of wed-

lock", this definition is to be applied literally, and includes any step-

child previously born illegitimately to the mother or to the father.

450

Interim Decision #1541

The Government declined to appeal the decision in Nation v. Es-

perdy, supra. Our prior holding in Matter of W--, 7 I. & N. Dec.

685, is therefore considered overruled.

In the present case the petitioner was born out of wedlock of an

Indonesian father who acknowledged parentage shortly after her

birth in 1931 and who married the beneficiary in 1935 when the peti-

tioner was four years old. The petitioner and the beneficiary there-

fore are regarded as persons having the status of stepchild and

stepmother respectively under the rule laid down in Nation v. Es-

perdy, supra. The visa petition will be approved.

ORDER: It is ordered that the visa petition be approved for pre-

ference status on behalf of the beneficiary.

BEFORE THE BOARD

The case comes forward on motion of the Immigration and Natu-

ralization Service dated October 29, 1965 asking for reconsideration

of the Board's order of September 13, 1965 approving a visa petition

for preference status on behalf of the beneficiary.

The record relates to a visa petition filed by the petitioner, a native

of Batavia, West Java, Indonesia, a naturalized citizen of the United

States, 34 years old, married, female, who seeks preferences quota

status on behalf of her alleged stepmother, a native of Djarkata,

West Java, Indonesia, 47 years old, female. The petitioner in a

sworn statement executed before a Service officer on March 19, 1964

acknowledged that she was born out of wedlock to Sian Kok Lie and

Bo Tan Lie, both natives of the Chinese race. The petitioner's natu-

ral mother died in Indonesia (Java) on May 26, 1931, her natural

father acknowledged paternity on June 5, 1931 and the natural

father married the beneficiary, the alleged stepmother, on March 51,

1935 when the petitioner was less than four years of age. Documen-

tary evidence has been submitted to support these allegations.

The visa petition was originally denied by the District Director,

Detroit District, on November 22, 1963 for the. reason that the bene-

ficiary was not a parent as defined in section 101(b) (2) of the Immi-

gration and Nationality Act in that the petitioner failed to meet the

statsi's of a stepchild as defined in section 101(b) (1) (B) of the Act;

and that a child born out of wedlock derives no status as a stepchild

by reason of the marriage -of the natural father to a person other

than the child's mother. On January 24, 1964 we remanded the case

for a statement from the petitioner regarding the religion and race

of herself and of her natural parents and to explore the possibility

of legitimation under the Law which prevailed in Batavia, West

Java, which was the former Netherlands $ast Indies at the time of

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'Interim Decision #1541

- the •etitioner's birth. On October 22,1961 we again considered,the

case and found that acknowledgement of a child under Indonesian

Law is not equivalent to legitimation, since according to Article 275

of the Civil Code of Indonesia of April 90, 1947, ltgitimation of a

legally acknowledged child requires a declaration of the Governor-

- General (at present, the President of the Republic of Indonesia)

after consultation with the Supreme Court. No evidence had been

submitted that this legitimation process had ever been completed

and the appeal was dismissed. (Matter •of The, Int. Dec. No. 1400.)

On September 13; 1965 we reconsidered the case on motion of the

petitioner because of the decision in Nation:v.Esperdy, 239 F. Supp.

531 (S.D. N.Y., 1965). We found that the petitioner and the bene-

ficiary are regarded as persons having the status of stepchild and

stepmother, respectively; ender the riffs laid down in Nation v. &-

pertly and approved the visa petition kw preference quota status on

- behalf of the beneficiary. • . . j i :. • • • : - •

. The: facts in the-ease -bf:.N:ation.v. E.aperdy,.289:F::Supp.. 531,

involved a beneficiaryvalio•mvae.born:out of:svedloe.k intJamaica Ion

-

February 12;1947 and•vtirodias abandoned in infaner by his- natural

:mother... The plaintiffzstepmother commended tering'fbr.the infant

..in41949 and married the -beneficiary's natural. father in 1952 *then

-.the beneficiary was fivelmars-old. Aus plaintiff and her. husband

immigrated- to the United:States in.1.95T.or.:1958. She :bicame . a

naturalized citizen in .1962 ,and immediately thereafter petitioned

for the beneficiary's admittance on a •onquata. visa. -The beneficiary

was-adopted by •the plaintiff and her husband on iluly1.7, 1963 :when

' the beneficiary 'Aves 18 years old.' Concededly,. the adoption was

_without. legal significance for immigration purposes because-under

section itm(b) (1) (E) - a child must be; adopted 'under the age of .14

.years. .• • , - • -

Judge, Feinberg, after noting that the istue:ef.whathir '.stepchild"

excludes a father's illegitimate child but not a mother's, conceivably

might be solved by looking to the statute alone, however turned to

the legislative history in search 'of 'possible further enlightment.

Although conceding, on balance; that Senate Report No. 11157-(85th

Con;., 1st Seas., 1957) more clearly focused on t.14 mother-child

relationship and tended to support the Government's position, the

court concluded that the respective reports, which it set'ont in full,

were.not. conclusive but tended to suggest conflicting interpretations.

The reports and the debates abounded with general indications that

a principal purpose of the- 1957 bill was elimination of administra-

dye interpretations that have kept families apart. The court stated

thatit would be incorrect to characterize the legislative history as.

452

Interim Decision *1541

compelling but that it did indicate that the contemporaneously

enacted subsection (D) of section 101(b) (1) of the Act did not con-

trol the interpretation of subsection (B) ; considering the legislative

history along with the obviously broad language of subsection (B) •

the court was persuaded on the facts of the case the beneficiary was

the plaintiff's "stepchild." The court observed that there was no

issue as to whether a true natural father-child relationship existed;

that plaintiff,'her husband and the beneficiary had concededly been

a close family at the outset, and -immediately after citizenship was

secured, plaintiff petitioned to reunite the family unit; and concluded

that whether the expressed congressional policy of keeping family

units together should be overruled because of an unexpressed concern

about fraud was doubtful, particularly where other sanctions of the

law were available. The court, in deciding the case favorably to the

plaintiff, overruled our basic decision to the contrary in Matter of

TV—, 7 I. & N. Dee. 685 (1958). '

The instant case bears a remarkable similarity in its facts to those

existing in the Nation case, supra. Here the beneficiary's 'natural

father acknowledged her paternity shortly after birth and married

the beneficiary when the petitioner was four years of age. Assuming

the existence of a steprelationship upon the marriage of the petition-

er's father to the beneficiary, that relationship continued, after the

stepchild reached the age of 21 and after the was married.1 There

was ample evidence of the .existence of a bona fide family unit

between the petitioner, the beneficiary and the natural father until

the petitioner's immigration to the United States in - 1953. It has

been established that close family ties between the petitioner and the

beneficiary exist until the present day.

The main thrust of the motion filed by the Service- is an attack

upon the decision in Nation v. Esperdy. The 1957 amendments to

sections 101(b) (1) (B) and (D) of the Immigration and Nationality

Act were passed simultaneously and the history of the amendment to

subparagraph (B) shows quite clearly that Congress was looking

only at situations in which alien women with illegitimate children

had married United States citizens who are not the fathers of the

children since these situations were the most numerous and formed

the factual basis for the administrative decision in Matter of TV—,

7 I. & N. Dec. 685 (1958). Apparently, Congress paid little atten-

tion to the precise factual situation involved in the Nation case.

Judge Feinberg's view in the Nation, case that subparagraph (D)

does not restrict subparagraph (B) but merely applies to a different

set of circumstances in which an illegitimate child may benefit,

'Matter of 0—, 8 I. & N. Dec. 592; Matter of G—, 8 I. a N. Dec. 355.

453

Interim Decision #1541

evolves as a reasonably possible Construction of the statute. As

pointed out by Judge Feinberg, no clear intent can be gleaned from

the legislative history to exclude a child born out of wedlock whose

putative father's marriage created the step-relationship. In the

absence of compelling evidence of such intent the court's literal

application of the broad language of the remedial amendment is per-

suasive, particularly as applied to the facts present in that case, in-

asmuch as the decision involved highly sympathetic and equitable

factors.

The same highly favorable and equitable factors are involved in

the present case: We are unable to draw a distinction between the.

two cases. In view of the fact that no appeal was taken from the

decision in the Nation case, and in view of the similarity of the basic

facts and equities, we feel that the Nation case is binding upon the

instant case. This conclusion will not foreclose furthei examination

of the application of the Nation case to a different set of facts which

are not clearly within the scope of that decision.

. ORDER: It is ordered that the motion be and the same is hereby

denied.

.454