Appendix — Tyler v. Wyrick
Supreme Court brief1976
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ane Supceme dinxt of the Bniten States
Des Ocrorgr TERM 1976
No. 75-6297
Ramo MARTIN FIALLO, ETC., ET AL., APPELLANTS,
v.
.. EDWARD H. LEVI, INDIVIDUALLY AND AS
_ ATPORNET GENERAL OF THE UNITED STATES, ET AL.,
ee. 3 ‘APPELLE“S
>
ON APPEAL PROM THE. UNITED STATES DIS “ICT COURT
FOR THE EASTERN DISTRICT OF NEW .JRK —
‘peseaeiial
APPENDIX
In the Supreme Court of the Anited States
OCTOBER TERM 1976
No. 75-6297
RAMON MARTIN FIALLO, ETC., ET AL., APPELLANTS,
Vv.
EDWARD H. LEVI, INDIVIDUALLY AND AS
ATTORNEY GENERAL OF THE UNITED STATES, ET AL.,
APPELLEES
ON APPEAL FRCM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
FILED MARCH 1, 1976
PROBABLE JURISDICTION NOTED JUNE 7, 1976
ii
INDEX TO APPENDIX
Relevant Docket Entries.......-.---eeeeceeeerereeerseeeeeeeesesees
Amended Complaint ........---ssssseeeecereeerereterseeceseseseees
Memorandum and order of Weinstein, J. convening three-judge court .
Designation of Judges for three-judge court by Kaufman, C.J. ......--
Plaintiffs’ Notice of Motion for Class Action Certification, Summary
Judgment and Permanent Injunction......----++++++0eserrserer
Plaintiffs’ Statement Under General Rule %g) of the Material Facts as
to Which There Exists No Genuine Issues to be Teted 2. cccccccees
Affidavit of Ramon Augusto Rafael Fiallo-Sone ........--+++-+++++*+*
Affidavit of Celia Francisca Michel Rodriguez .......-.+++++++++++++*
Affidavit of Cleophus Rupert Warner ......--.--+-+0++eereeeerereees
Affidavit of Serge Patrick Warner .......----+-+seeeereeserereeerees
Affidavit of Trevor Aston Wilson ..........0000-e+eeeeeeeeeeeceeeees
Affidavit of Earl Antonio Wilson .........-.-0+-sseeeeeeeersreeeeees
Affidavit of Arthur Cecil Wilson ..........---2+-seeeeeeeerereeeeeees
Affidavit of Lena Hudson ........-.-.+eeececeeeeeereeeneeereeeeeees
Stipulation between parties regarding class action numerosity ........
Letter from Consul Catherine M. Hurley........-----+++e+eeeereeres
Form FS 497 A returned with date stamp 1/25/74 .......--+-++e5e80e5
Denial of Warner 1-130 Petition ...........--.eeeeeee cere eeeeeeeeees
Defendants’ Notice of Motion to Dismiss ........-+--+++eeeeeerreeees
Opinion and Order of three-judge district court, per Moore, C.J.......
Dissenting Opinion of three-judge district court, per Weinstein, J. ....
Judgment dismissing action ..........0++++seeeeeeeeseereeeeneeeress 74
Notice of Appeal to the Supreme Court of the United States ......... 75
Order from the Supreme Court granting probable jurisdiction in appeal 77
Order from the Supreme Court allowing appellants to proceed in forma
POUPOTS .... 22. secccceccccccnccccccesccccccsccccesscssoossesees 78
RELEVANT DOCKET ENTRIES
NO. 74C 1083
Dates
7/22/74 Complaint filed.
10/25/74 Defendants’ Notice of Motion for dismissal of action filed.
11/27/74 Plaintiffs’ Notice of Motion filed for Three-Judge Court, Class
Action, and Intervention and Joinder, with Affidavits and other
attachments in support.
PAGE
SeeEESSRERSSRESRBEN EF Cawe
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Pe gk na etal en een
11/27/74
12/23/74
1/23/75
371/75
5/9/75
8/8/75
8/18/75
9/4/75
11/28/75
11/28/75
12/1/75
12/31/75
6/14/76
6/14/76
Amended Complaint filed.
Before Weinstein, J.—Case called. Motion to dismiss argued.
Decision reserved. Motion for intervention and joinder is
granted. Motion for three-judge court argued and decision re-
served,
By Weinstein, J—Memorandum and Order dated January 23,
1975, filed that a three-judge court must be convened and that
plaintiffs’ motion for class action certification is deferred for con-
sideration by three-judge court.
Stipulatioa between parties as to class action numerosity, dated
February 21, 1975, with remark by Weinstein, J. dated March 6,
1975.
Designation of Judges dated May 7, 1975, signed by Ch. J.
Kaufman of Court of Appeals, designating Judges Weinstein,
Bramwell, and Cir. J. Moore pursuant to 28 U.S.C. §§2282 and
2284 filed.
Plaintiffs’ Notice of Motion filed for Class Action Certification,
Summary Judgment, and Permanent Injunction with Rule %g)
Statement, Affidavits and other attachments in support.
Defendants’ Notice of Motion to dismiss filed.
Before Weinstein, Bramwell, and Moore—Case called. Motions
argued. Decision reserved.
By Moore and Bramweli, J.—Opinion and Order refusing to find
above case unconstitutional filed.
By Weinstein, J.—Dissenting Opinion filed.
Judgment dated December 1, 1975, dismissing the complaint
filed.
Notice of Appeal to the Supreme Court of the United States
filed.
Certified copy of Order from the Supreme Court granting proba-
ble jurisdiction for appeal filed.
Certified copy of Order from the Supreme Court allowing appel-
lants to proceed in forma pauperis filed.
1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
RAMON MARTIN FIALLO, An infant by his
Mother, CELIA FRANCISCA MICHAEL
RODRIGUEZ, and RAMON AUGUSTO :
RAFAEL FIALLO-SONE; CLEOPHUS
RUPERT WARNER and SERGE PATRICK
WARNER, An infant by his father,
CLEOPHUS RUPERT WARNER; TREVOR
ASTON WILSON and EARL ANTONIO
WILSON, Infants by their aunt and next friend
LENA HUDSON, and ARTHUR CECIL
> CIVIL
ACTION
NO. 74
C 1083
WILSON, on behalf of themselves and all other :
persons similarly situated,
Plaintiffs,
—against—
WILLIAM SAXBE, individually and as Attor-
ney General of the United States; LEONARD
E. CHAPMAN, Jr., individually and as Com-
missioner of the Immigration and Naturaliza- :
tion Service; MAURICE KILEY, individually
and as District Director of the Immigration and
Naturalization Service for New York City;
HENRY KISSINGER, individually and as Sec- :
retary of State of the United States; BAR-
BARA N. WATSON, individually and as Ad-
ministrator of the Bureau of Security and Con-
sular Affairs, Department of State; JULIO:
ARIAS, individually and as Director of Visa
Office, Bureau of Security and Consular Af-
fairs, Department of State; CATHERINE M.
HURLEY, individually and as Consul of the :
United States of America, Santo Domingo,
Dominican Republic,
Defendants.
AMENDED COMPLAINT — CLASS ACTION
PRELIMINARY STATEMENT
1. This is a class action for declaratory and injunctive re-
lief pursuant to 28 U.S.C. §$2201 and 2202, and Rules 23,
57 and 65 of the Federal Rules of Civil Procedure to protect
the rights of plaintiffs and the class under the First, Fifth
and Ninth Amendments to the United States Constitution.
2. By this proceeding, the named plaintiffs, on behalf of
themselves and all others similarly situated, seek a judg-
ment declaring unconstitutional and enjoining the enforce-
ment and operation of Immigration and Nationality Act
(INA) §101(b)(1) and (2) (8 U.S.C. §1101(b)(1) and (2)) alone
and in combination with INA §§212{a)(14) (8 U.S.C.
§$1182(a)(14)) and INA §201(a) and (b) (8 U.S.C, §1151(a)
and (b)), on their face and as applied to plaintiffs and the
class.
8. Declaratory and injunctive relief are necessary and
appropriate since plaintiff and plaintiff class members will
otherwise suffer irreparable injury for which there is no
adequate remedy at law,
4. This is a proper case for the convening of a three-judge
court pursuant to 28 U.S.C, §§2282 and 2284, in that plain-
tiffs herein seek an injunction to restrain the defendants
from the enforcement, operation and execution of an Act of
Congress on the ground that said Act is repugnant to the
United States Constitution,
JURISDICTION
5. Jurisdiction is conferred upon this Court by INA §279
(8 U.S.C, §1329) as a civil cause arising under the Immigra-
tion and Nationality Law; 28 U.S.C. §1361 as an action in
the nature of mandamus to compel an officer or employee of
the United States or any agency thereof to perform a duty
owed to plaintiff; Section 10 of the Administrative Proce-
dure Act (5 U.S.C, §§702-706) as a proceeding to review
agency action which adversely affects or aggrieves a person
within the meaning of a relevant statute; 28 U.S.C,
~—
3
§$1331(a), as a controversy arising under the Constitution or
laws of the United States where the amount exceeds
$10,000,
REGULATORY SCHEME
6. An alien who is allowed to emigrate to the United
States and become a permanent resident has the right to
remain in the United States indefinitely and to live, work
and make a home here.
7. The Immigration Law provides two immigration
schemes:
1) Immigrants from independent Western Hemisphere
countries are admitted in a “first come-first serve” basis
subject to an annual numerical quota for the whole Western
Hemisphere (North and South America): INA
§101(a)(27)(A) (8 U.S.C, §1101(a)(27)(A)) and §21(e) of Act
of October 3, 1965.
2) Immigrants from Eastern Hemisphere countries are
subject to annual numerical quotas for each country which
are allocated on a preference system. INA §202(a), 203 (8
U.S.C, $§$1152/a), 1153.) Immigrants from colonies of East-
ern Hemisphere countries, even though located in the
Western Hemisphere, are subject to annual numerical
quotas set for colonies and allocated on the preference sys-
tem,
8. “Immediate .elatives” of United States citizens may be
admitted without regard to any numerical quota. INA
§201(a) (8 U.S.C, §1151(a)). “Immediate relatives” are de-
fined as “the children, spouses and parents of a citizen of
the United States, provided that in the case of parents,
such citizen must be at least twenty-one years of age.” INA
$201(b) (8 U.S.C. §1151(b)).
9. Persons from both the Eastern and Western Hemi-
sphere, subject to a numerical quota, may not become per-
manent residents unless the Secretary of Labor has cer-
tifled to the Secretary of State that the work the alien will
perform in the United States is in short supply and will not
adversely affect the wages and working conditions of
4
United States’ workers. INA §212(a)(14) (8 U.S.C,
§$1182(a)(14)).
10. The following are exempt from the “labor certifica-
tion” requirement:
a) Persons from independent countries of the West-
ern Hemisphere who are the parents, spouses or children of
United States citizens or of permanent residents.
b) Persons from Eastern Hemisphere countries or
their colonies who meet certain preference category re-
quirements under the preference system. INA §§212(a)(14),
203(a)(1)(2)(4)(5) and (7) (8 U.S.C. §§$1182(a)(14);
§1153(a)(1)(2)(4)(5) and (7)).
11. The definitions of “parent” and “child” in the Immi-
gration and Nationality Act are applied to determine
whether an alien is entitled as a “parent” or a “child” to
classification as an “immediate relative” or exemption from
the “labor certification” requirement.
12. INA §101(b)(1) (8 U.S.C. §1101(b)(1)) defines a
“child” as a legitimate child, a child legitimated under the
law of his residence or domicile or under his natural father’s
residence or domicile before the child reaches the age of
eighteen, a child in relationship to his mother, a step-child,
whether or not born out of wedlock, if the marriage which
creates the step-child status occurred before the child was
eighteen, an adopted child if the child was adopted before
age fourteen. A child born out of wedlock and not legiti-
mated is not the “child” of his natural father within the
meaning of this statutory section.
13. INA §101(b)(2) (8 U.S.C. §1101(b)(2)) defines “par-
ent” as one who bears the relationship to a child as defined
in INA §101(b)(1) (8 U.S.C, §1101(b)(1)) (see para. 12
above)). A natural father of a child born out of wedlock and
not legitimated is not a “parent” within the meaning of this
statutory section.
DEFENDANTS
14. Defendant William Saxbe is the Attorney Genera! of
the United States and pursuant to INA §108 (8 U.S.C.
5
$1103) he is charged with the administration and enforce-
ment of the immigration and nationality laws of the United
States.
15. Defendant Leonard E, Chapman, Jr., is the Commis-
sioner of the Immigration and Naturalization Service. He
has authority co-extensive with that of the Attorney Gen-
eral to direct the administration of the Service and to en-
force the immigration law, and has the power to issue regu-
lations necessary or appropriate for the exercise of his au-
thority, INA §103(b) (8 U.S.C, §§1103(b), 1552, 8 C.F.R.
$§2.1, 100.2, 100.6).
16. Defendant Maurice Kiley is the District Director of
the Immigration and Naturalization Service for New York
City. He exercises powers, privileges, and duties co-
extensive with those of the Commissioner with respect to
the grant or denial of any application or petition submitted
to the Service including those submitted on Forms 1-130
and 1-550, (8 C.F.R. $§100.2, 103.1(f)).
17. Defendant Henry Kissinger is the Secretary of State
of the United States and pursuant to INA §104 (8 U.S.C.
$1104) he is charged with the administration and enforce-
ment of the immigration and nationality laws of the United
States.
18. Defendant Barbara Watson is Administrator of the
Bureau of Security and Consular Affairs in the Department
of State. She is charged with any and all responsibility and
authority in the administration of the Bureau and the Im-
migration and Nationality Act which are delegated to her
by the Secretary of State. INA §104(b) (8 U.S.C. §1104(b)).
19. Julio Arias is the Director of the Visa Office in the
Bureau of Security and Consular Affairs. The Visa Office
supervises and controls the visa process of consular posts
abroad, The Visa Office’s interpretation of law is binding on
consular officers.
20. Defendant Catherine M. Hurley is the Consul of the
United States of America in Santo Domingo, Dominican
Republic. She rejected the application by the son, RAMON
MARTIN FIALLO, on behalf of his father, RAMON AU-
GUSTO RAFAEL FIALLO-SONE, on the ground that the
son, RAMON MARTIN FIALLO, was not the legitimate
child of the father, RAMON AUGUSTO RAFAEL
FIALLO-SONE, Pursuant to INA §221 (8 U.S.C. §1201)
she is charged with administration and enforcement of im-
migration and nationality laws of the United States with
regard to the issuance of visas.
NAMED PLAINTIFFS
Ramon Martin Fiallo
and Ramon Augusto Rafael Fiallo-Sone
21. Ramon Martin Fiallo is an infant citizen of the United
States, born in New York, New York on January 2, 1971.
22. Celia Francisca Michel Rodriguez is the natural
mother of Ramon Mart n Fiallo and brings this action in his
behalf.
23. Ramon Augusto Rafael Fiallo-Sone is the natural
father of Ramon Martin Fiallo and his name appears on
Ramon Martin Fiallo’s birth certificate.
24. Shortly after Ramon Martin Fiallo’s birth, Ramon
Augusto Rafael Fiallo-Sone assumed the role of primary
caretaker and constant companion to his son, Ramon Martin
Fiallo. He continues that role to date.
25. Celia Francisca Michel Rodriguez assumed and con-
tinues to date the role of bread-winner.
26. Ramon Fiallo-Sone and Celia Francisca Michel Rod-
riguez are not married.
27. Ramon Martin Fiallo is a pre-school age child and is
very dependent upon and attached to his father.
28. Ramon Augusto Rafael Fiallo-Sone is a citizen of the
Dominican Republic.
29. Ramon Augusto Rafael Fiallo-Sone entered the
United States in December of 1964 as a visitor and was
given permission to depart from the United States volun-
tarily.
30. A Form FS 497A, ‘Preliminary Questionnaire to De-
termine Immigrant Status,’ was submitted on behalf of
Ramon Fiallo-Sone to the U.S. Consulate in the Dominican
7
Republic, the proper preliminary step for obtaining an im-
migrant visa and permanent resident status for a Western
Hemisphere father of a United States citizen child under
twenty-one,
31. Consul Catherine M, Hurley returned the Form FS
497A and wrote a letter stating that Ramon Martin Fiallo
was not eligible for an immigrant visa and permanent resi-
dent status without a “labor certificate” on the basis of his
relationship to his citizen son because his son was not his
legitimate issue.
32. The date stamp on the returned Form FS 497A indi-
cated that the Form had been received in the U.S. Em-
bassy at Santo Domingo, Dominican Republic on January
25, 1974.
33. Plaintiffs, Ramon Martin Fiallo and Kamon Augusto
Raiuel Fiallo-Sone reside in Brooklyn, New York.
Serge Patrick Warner and Cleophus Rupert Warner
34, Cleophus Rupert Warner is a naturalized citizen of
the United States of America, having been naturalized in
the District Court of the United States for the Eastern Dis-
trict of New York, on April 26, 1966, under Certificate
Number 8941869,
35. Serge Patrick Warner is the son of Cleophus Rupert
Warner and was born on February 23, 1960, in the Com-
mune De Saint-Martin, Departement de la Guadeloupe, St.
Martin, French West Indies.
36. Cleophus Rupert Warner was never married to Serge
Patrick Warner's natural mother, Elenore Carmelie Gibs.
37. Shortly after the birth of Serge Patrick Warner,
Cleophus Rupert Warner registered as his father and ac-
knowledged paternity and his name therefore appears on
the Birth Certificate of Serge Patrick Warner.
38. Cleophus Rupert Warner has supported and main-
tained Serge Patrick Warner from his birth until the pres-
ent time and intends to continue to do so in the future.
39. Serge Patrick Warner entered the United States as a
visitor on August 22, 1969, solely with the intention of visit-
8
ing his father, Cleophus Rupert Warner. Shortly after
Serge Warner's entry into the United States, his mother
married and informed Cleophus Rupert Warner that she
was moving to a new address and requested him to keep
their son, Serge Patrick Warner,
40, Cleophus Rupert Warner filed a Form 1-130, “Peti-
tion to Classify Status of Alien Relative for Issuance of
Immigrant Visa”, with the Immigration and Naturalization
Service in New York City, the proper preliminary step for
obtaining an immigrant visa and permanent resident status
for an unmarried child under twenty-one of a United States
citizen,
41. The petition was rejected on March 2, 1972 on the
grounds that it was mandatorily deniable under INA
$101(b) because Serge Patrick Warner was not the legiti-
mate or legitimated issue of Cleophus Warner.
42, Cleophus Rupert Warner also attempted to regularize
Serge Patrick Warner's status by writing to the U.S, Con-
sul in the French West Indies. In response, he was in-
formed that he must obtain an approved 1-130 Petition be-
fore the Consul would take any action,
43. Exclusion proceedings are now pending against Serge
Patrick Warner.
44, Serge Patrick Warner continues to reside with his
father, Cleophus Rupert Warner, in the Borough of
Queens, City and State of New York. Cleophus Rupert
Warner continues to support and maintain his son, Serge
Patrick Warner.
45. Serge Patrick Warner desires to remain in the United
States with his father, Cleophus Rupert Warner.
Trevor Aston Wilson, Earl Antonio Wilson
and Arthur Cecil Wilson
46. Plaintiff Trevor Aston Wilson is a vermanentr ‘ient
of the United States, No. A 17 564 218.
47. Plaintiff Earl Antonio Wilson is a permanent resident
of the United States, No. A 17 564 217.
9
48. Plaintiff Arthur Cecil Wilson is a native and citizen of
_ Jamaica.
49. Trevor Aston Wilson was born on June 19, 1957, and
his brother, Earl Antonio Wilson, was born on January 6,
1959 to Leonie (Leony) (Muckle) Moses and Arthur Cecil
Wilson.
50. Arthur Cecil Wilson and Leonie (Muckle) Moses were
never married.
51. Trevor Aston Wilson and Ear! Antonio Wilson recog-
nize Arthur Cecil Wilson as their father and Arthur Cecil
Wilson acknowledges the paternity of Trevor Aston Wilson
and Earl Antonio Wilson.
52. From the time of their births until 1968, Trevor
Aston Wilson and Ear] Antonio Wilson lived with and were
maintained by their natural father, Arthur Cecil Wilson.
53. Subsequent to 1968, Trevor Aston Wilson and Earl
Antonio Wilson have maintained a relationship with their
natural father, Arthur Cecil Wilson, by visits and letters
and Arthur Cecil Wilson has contributed to their support.
54. On September 15, 1974, Leonie (Leony) (Muckle)
Moses died in New York City, New York.
55. Upon the death of their mother, Leonie (Leony)
(Muckle) Moses, Trevor Aston Wilson and Earl Antonio
Wilson requested that their father, Arthur Cecil Wilson
come to the United States.
56. Arthur Cecil Wilson obtained an emergency visa and
entered the United States.
57. Trevor Aston Wilson and Ear] Antonio Wilson desire
to stay in the United States, continue their education and
eventually become citizens.
58. Trevor Aston Wilson and Earl Antonio Wilson desire
and need their father, Arthur Cecil Wilson, to live with and
maintain them in the United States.
59. Trevor Aston Wilson, as the oldest child, submitted a
Form I-550 to the Immigration and Naturalization Service,
the proper preliminary procedure for obtaining an immi-
grant visa and permanent resident status for a parent of a
United States permanent resident unmarried child under
twenty-one.
10
60. Arthur Cecil Wilson left the United States when the
extensions he was able to obtain on his visa expired. He
returned to Jamaica because without permanent resident
status he could not obtain a job in the United States and he
felt that in Jamaica he could work and contribute something
to the support of his children. He also did not want to viol-
ate the law by overstaying the time period allowed.
61. He and his sons desire that he return to the United
States as a permanent resident so he may maintain a home
and family and work here.
CLASS ACTION ALLEGATIONS
62. Plaintiffs bring this action as a class action pursuant
to Rule 23(a) and in addition, Rule 23(b)(2) or in the alter-
native, Rule 23(b)(1)(A) or (B) of the Federal Rules of Civil
Procedure.
63. This class is composed of all United States citizen
natural fathers and their alien children born out of wedlock
and not legitimated and all United States citizen and per-
manent resident children born out of wedlock and not
legitimated and their alien natural fathers who are denied
the following statutory benefits because they fail to satisfy
the statutory definitions of “parent” and “child” under the
Immigration and Naionality Act:
1) the classification of a child of a United States citizen
father as an “immediate relative,” and
2) the exemption from the requirement of a “labor cer-
tificatien” of the father of a United States citizen or of a
permanent resident child.
64. The class is so numerous that joinder of all members
is impracticable. Rule 23(a)(1).
65. There are questions of law and fact common to the
class, that is, whether the United States statutes chal-
lenged herein comport with minimal constitutional re-
quirements under the First, Fifth, and Ninth Amendments
to the United States Constitution as detailed in paragraphs
70 through 72 herein. Rule 23 (a)(2).
11
66. The claims of the representative plaintiffs are typical
of the claims of the class. Rule 23(a)(3).
67. THE LEGAL AID SOCIETY of New York City, at-
torney for the plaintiffs. has legal resources and experience
adequate to protect ail members of the class, and the repre-
sentative plaintiffs will fairly and adequately protect the
interests of the class. Rule 23(a)(4).
68. In denying the status of “parent” and “child” to the
plaintiffs herein pursuant to the Immigration and National-
ity Act, the defendaits have acted or refused to act on
grounds generally applicable to the class, thereby making
appropriate final injunctive relief or corresponding de-
claratory relief with respect to the class as a whole. Rule
23(b)(2).
69. The prosecution of separate actions by individual
members of the class would create a risk of varying adjudi-
cations with respect to individual members of the class
which might establish incompatible standards of conduct for
the defendants in this action, and would create a risk of
adjudications with respect to individual members of the
class that would as a practical matter be dispositive of the
interests of the other members not parties to the adjudica-
tions or substantially impair or impede their ability to pro-
tect their interests. Rule 23(b)(1)(A) and (B).
STATEMENT OF CLAIMS
70. INA §101(b)(1) and (2) (8 U.S.C. $1101 (b)(1) and (2)),
alone, and in combination with INA §212(a)(14) (8 U.S.C.
§1182(a)(14)), and INA §20i(a) and (b) (8 U.S.C. §1151(a)
and (b)), are, on their face and as applied to plaintiffs and
class members, unconstitutional as violative of the equal
protection principles of the Due Process Clause of the Fifth
Amendment to the United States Constitution in that they
discriminate against naturai fathers and their children born
out of wedlock and not legitimated on the basis of the
father’s marital status, the illegitimacy of the child and the
sex of the parent without either compelling or rational jus-
tification.
12
71. INA §101(b)(1) and (2) (8 U.S.C. §1101(b)(1) and (2)),
alone, and in combination with INA §212(a)(14) (8 U.S.C.
§1182(a)(14)), and INA §201(a) and (b) (8 U.S.C. §1151(a)
and (b)), are, on their face and as applied to plaintiffs and
class members, unconstitutional as violative of the Due
Process Clause of the Fifth Amendment to the United
States Constitution in that they create an unwarranted
conclusive presumption of the absence of strong psychologi-
cal and economic ties between natural fathers and their
children born out of wedlock and not legitimated.
72. INA §101(b)(1) and (2) (8 U.S.C. §1101(b)(1) and (2)),
alone, and in combination with INA §212(a)(14) (8 U.S.C.
§1182(a)(14)), and INA §201(a) and (b) (8 U.S.C. §1151(a)
and (b)), are, on their face and as applied to plaintiff and
class members, unconstitutional and violative of the First,
Fifth and Ninth Amendments to the United States Con-
stitution in that they seriously burden and infringe upon
the rights of natural fathers and their children, born out of
wedlock and not legitimated, to mutual association, to pri-
vacy, to establish a home, to raise natural children and to
be raised by the natural father.
RELIEF REQUESTED
WHEREFORE, plaintiffs, on behalf of themselves and
all the members of the class, respectfully pray that this
Court:
1. Assume jurisdiction of this cause and convene a three-
judge court pursuant to 28 U.S.C. §§2282 and 2284.
2. Determine by order, pursuant to Rule 23(c)(1) of the
Federal Rules of Civil Procedure, that this action be main-
tained as a class action.
3. Pursuant to 28 U.S.C. §§2201 and 2202 and Rule 57 of
the Federal Rules of Civil Procedure, enter a judgment de-
claring that Section 101(b)(1) and (2) of the Immigration and
Nationality Act (8 U.S.C. §1101(b)(1) and (2)) alone, and in
combination with INA §212(a)(14) (8 U.S.C. §1182(a)(14))
and INA §201(a) and (b) (8 U.S.C. §1151 (a) and (b)), are
unconstitutional, on their face and as applied to the plain-
tiffs and the class herein, as violative of the First, Fifth and
13
Ninth Amendments to the United States Constitution in
the respects detailed in this amended complaint.
4. Enter a permanent injunction restraining the defend-
ants, their officers, agents, servants, employees, and suc-
cessors in office, from:
a) enforcing, applying or relying upon INA §101(b)(1)
and (2) (8 U.S.C. §1101(b)(1) and (2)), alone or in combina-
tion with INA §212(a)(14) (8 U.S.C. §1182(a)(14)) and INA
§201(a) and (b) (8 U.S.C. §1151(a) and (b)), in their uncon-
stitutional aspects as detailed in this amended complaint,
for purposes of determining immediate relative status or
exemption from labor certification requirement.
b) failing to afford the plaintiffs whatever immigrant
status they would have had but for the unconstitutional ap-
plication of statutes challenged herein.
5. Pursuant to Rule 54(d) of the Federal Rules of Civil
Procedure allow plaintiffs reasonable attorneys’ fees and
their costs and disbursements herein and also grant them
and the members of their class such additional and alterna-
tive relief as may seem to this court to be just, proper and
equitable.
DATED: New York, New York
November 21, 1974
Respectfully submitted,
KALMAN FINKEL, Attorney-in-Charge
THE LEGAL AID SOCIETY
Civil Division
MorTON B. DICKER
JANET M. CALVO, and
ANNETTE S. ELSTEIN, and
JULIUS C, BIERVLIET
THE LEGAL AID SOCIETY
11 Park Place
New York, New York 10007
Tel.: (212) 227-2755
14
JOHN E. KIRKLIN
ANITA FISHER BARRETT
THE LEGAL AID SOCIETY
Civil Appeals Bureau
267 West 17th Street
New York, New York 10011
Tel.: (212) 691-8320
Attorneys for Plaintiffs
15
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
RAMON MARTIN FIALLO, ET AL.,
Plaintiffs
against
WILLIAM SAXBE, ET AL.,
Defendants
APPEARANCES:
JANET M. CALVO,
of the Legal Aid Society
Attorney for Plaintiffs
(MoRTON B. DICKER, ANNETTE
ELSTEIN, JULIUS BIERVLIET, JOHN
E. KIRKLIN, and ANITA FISHER
BARRETT, of the Legal Aid Society,
on the briefs)
DAVID G. TRAGER, Esq.
United States Attorney, Easter
District of New York
By: DOUGLAS J. KRAMER, Esq. °
Assistant United States
Attorney
Attorneys for Defendants
WEINSTEIN, D. J.
Plaintiffs are non-citizen fathers of illegitimate citizens or
resident children and non-citizen illegitimate children of
citizen fathers. They challenge the constitutionality of the
definitions of “parent” and “child” favoring mothers over
16
fathers found in the Immigration and Naturalization Laws,
& U.S.C. §1101(b)(1) and (2), and seek a three-judge court.
28 U.S.C, §2282. Discriminations between males and
females are coming under increased scrutiny. Legal
distinctions once accepted are no longer constitutional in
view of rapidly changing mores. See, e.g., Taylor v.
Louisiana, U.S. , Sup.Ct. '
L. Ed.2d (No, 78-5744) (January 21, 1975) (separate
rules on jury qualification for men and women no longer
valid), For the reasons indicated below, a three-judge cou .-
must consider the issues.
Insofar as pertinent, the statute reads:
“(1) The term ‘child’ means an unmarried person under
twenty-one years of age who is—
(A) a legitimate child; or
oe
(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;
OOM
(2) The terms ‘parent’, ‘father’, or ‘mother’ mean a
parent, father, or mother only where the relationship
exists by reason of any of the circumstances set forth in
subdivision (1) of this subsection.”
I, PLAINTIFFS’ CONTENTIONS
Immigrants are admitted to the United States on a strict
numerical quota system, which makes admission difficult,
but “immediate relatives” of United States citizens,
including children and parents are admitted without regard
to the quota system, 8 U.S.C. §1151 (a)(b). However,
fathers of illegitimate children are excluded from the
definition of “parent” and illegitimate children of citizen
fathers are excluded from the definition of “child”, Thus if
an illegitimate child is a native or naturalized United States
citizen, the child’s natural father cannot be admitted to the
17
United States except via the quota system. And if the
father of the illegitimate child is a naturalized or native
United States citizen, the child cannot be admitted, except
through the quota system. The law allows the mothers of
illegitimate citizen children and the illegitimate children of
citizen mothers to be admitted without regard to the quota
system,
Plaintiffs claim violations of the Fifth Amendment equal
protection and due process principles. They state that the
law discriminates without justification on the basis of sex
and illegitimacy, and establishes an invalid conclusive
presumption that there are no psychological and economic
ties between illegitimate children and their fathers.
Il. STANDARD FOR CONVENING THREE-JUDGE
COURT
A three-judge court must be convened if the claim meets
the slight burden of substantiality described in Goosby v.
Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 858-59 (1973):
“Constitutional insubstantiality for this purpose has
been equated with such concepts as ‘essentially
fictitious,’ ‘wholly insubstantial,’ ‘obviously frivolous,’
and ‘obviously without merit.’ The limiting words
‘wholly’ and ‘obviously’ have cogent legal significance.
In the context of the effect of prior decisions upon the
substantiality of constitutional claims, those words
import that claims are constitutionally insubstantial
only if the prior decisions inescapably render the clainis
frivolous; previous decisions that merely render claims
of doubtful or questionable merit do not render them
insubstantial for the purposes of 28 U.S.C, §2281. A
claim is insubstantial only if ‘its unsoundness so clearly
results from the previous decisions of this court as to
foreclose the subject and leave no room for the
inference that the question sought to be raised can be
the subject of controversy.’ ” (Citations omitted]
See, also, Hagans v. Lavine, 415 U.S. 528, 587-38, 94 S.Ct.
1372, 13879. (1974).
While this court must, in the interests of judicial
economy, carefully scrutinize a request to convene a
18
three-judge court (Bynum v. Connecticut Commission on
Forfeited Rights, 410 F.2d 173 (2d Cir, 1969)), the most
recent case in this circuit repeats the Goosby formulation,
and reiterates that a “fairly low standard applies.”
Finnerty v. Cowen, No. 74-1668, Slip Op. 848 (2d Cir. Dee.
16, 1974).
II]. APPLICABILITY OF THE “POLITICAL
QUESTION” DOCTRINE
The government argues that chere is no basis for a
three-judge court. It contends that the classification of
aliens for the purpose of exclusion is a “political question”
which courts have traditionally avoided. The courts in the
past have adhered to such a policy, beginning with Choe
Chan Ping v. United States, (The Chinese Exclusion Case),
130 U.S. 581, 609, 9 S.Ct. 623 (1889). In Lew Moon Sing vy.
United States, 158 U.S. 5388, 547, 15 S.Ct. 967, 970 (1895),
for example, the court concluded that:
“The power of Congress to exclude aliens altogether
from the United States, or to prescribe the terms and
conditions upon which they may come to this country,
and to have its declared policy in that regard enforced
exclusively through executive officers, without judicial
intervention, is settled by our previous adjudications.”
This position was most recently restated by the Supreme
Court in Kleindienst v. Mandel, 408 U.S. 757, 92 S.Ct.
2576 (1972), a case which challenged on First Amendment
grounds the Attorney General's failure to admit an
advocate of Communism. See, also, Harisiades vy.
Shaughnessy, 342 U.S. 580, 588-89, 72 S.Ct. 512 (1952)
(upheld deportation of Communist Party members);
Galvan, Vv. Press, 347 U.S. 522, 74 S.Ct. 737 (1954)
(deportation case); Hitai v. Immigration and
Naturalization Service, 343 F.2d 466, 467 (2d Cir.), cert.
denied, 382 U.S. 816 (1965) (upheld special quota for
Japanese immigrants); Faustino v. Immigration and
Naturalization Service, 302 F.Supp. 212 (1969), aff'd. 432
F.2d 429 (2d Cir, 1970), cert. denied, 401 U.S, 921 (1971)
(court refused to convene a three-judge court because equal
19
protection arguments concerning immigration classifications
based upon age of child were insubstantial).
But these cases must be read in the light of the Supreme
Court’s most recent pronouncement on the reviewability of
immigration laws in Almeida-Sanchez v. United States, 418
U.S. 266, 98 S.Ct. 2535 (1973). The court found
unconstitutional a provision in the immigration laws
allowing warrantless border searches. In the face of a
dissent which asserted, citing Mandel, supra, that
congressional opinion as to the constitutionality of a statute
must be accepted when that statute deals with the
exclusion of aliens, the majority held that “no Act of
Congress can authorize a violation of the Constitution,” and
that in the immigration field, as in others, “a resolute
loyalty to constitutional safeguards” is required.
Almeida-Sanchez, supra, 413 U.S, at 272, 278, 93 S.Ct. at
2539, 2540. While the fact pattern in Almeida-Sanchez is
very different from the case before this court, it is also true
that none of the cases cited by the government compares to
the fact pattern here.
Plaintiffs further argue that none of the cases cited by
the government supports the precise proposition that the
constitutionality of an immigration statute relating to the
exclusion of aliens is immune from judicial review, where,
as here, no foreign policy determination, incapable of being
reviewed by judicially discoverable and manageable
ster dards, is involved. Plaintiffs also assert that Congress
itself in drafting the act contemplated judicial intervention
to the extent necessary to bring it into accord with the
Constitution, House Report No. 1365, 82d Cong., 2d Sess.,
at 6 (1952) (“the right to exclude or expel all aliens or any
class of aliens...to be regulated... by act of
Congress...except so far as the judicial
department ... is required by the paramount law of the
Constitution to intervene”). Plaintiffs claim, too, that the
case here is distinguishable from cases cited by the
government, since it involves not merely the rights of
aliens, to which a “political question” doctrine might be
applied, but also the rights of United States citizens and
20
permanent residents, although their alien relatives also
benefit.
Thus, without making any comments on the merits,
Almeida-Sanchez, supra, and the plaintiffs’ arguments
stated above make plaintiffs’ claims “at least arguable”
(Finnerty v. Cowen, No. 74-1668, Slip Op, 849 (2d Cir. Dee.
16, 1974)). On this line of attack the government fails to
meet the heavy burden necessary for it to forestall a
three-judge court.
IV. APPLICABILITY OF “CONSULAR
NON-REVIEWABILITY” DOCTRINE.
The government, in its initial brief, argued that the
courts could not review the classifications involved in this
case under the doctrine of consular non-reviewability.
United States ex rel. Ulrich v. Kellog, 30 F.2d 984 (D.C.
Cir.), cert. denied, 279 U.S. 868, 49 S.Ct. 482 (1929);
Toza-Bedova v. Immigration and Naturalization Service,
410 F.2d 342 (9th Cir. 1969); Ticea-Gomez v. Pilliod, 193 F.
Supp. 577, 582 (N.D. Ill. 1960), Plaintiffs respond, how-
ever, that consuls are not acting within any regulatory or
statutory discretion with respect to plaintiffs here, since
the statute requires them to exclude the plaintiffs. Thus,
plaintiffs argue, there is no proper question of discretion
here which would invoke the doctrine. Plaintiffs’ position is
at least arguable, and so the government fails to preclude a
three-judge court review by this tack.
V. EXHAUSTION OF ADMINISTRATIVE
REMEDIES
The government argues that plaintiffs’ administrative
remedies have not been exhausted and thus the case is not
ripe for adjudication. Plaintiffs respond that many years
would have to pass before the plaintiff children reached the
age they could apply for admission under the quota system,
and also that a similar period of years would have to pass
before plaintiff fathers would be reached under the quota.
Such delays, say plaintiffs, would deprive the children of
paternal nurture, since in each case here the father has the
basic responsibility for the child. Plaintiffs also allege that
21
the plaintiff fathers would not normally be admitted at all
through the quota system as they lack the skills necessary
for the labor certificate that must be obtained for entry
through the quota system. Thus, plaintiffs assert that ex-
cept in the most abstract sense their case is fully ripe.
Plaintiffs’ position is at least arguable.
VI. RATIONALITY OF THE CLASSIFICATION
The government's final argument is that the classification
challenged by plaintiffs is neither arbitrary nor unreason-
able. The government states that classification based on il-
legitimacy is not per se unconstitutional. Labine v. Vincent,
401 U.S. at 536, 91 S.Ct. at 1019 (1971).
The government further states that the classification may
have resulted from a possible congressional concern with
the problem of fraud attendant upon a determination of
paternity between fathers and their illegitimate children.
The government argues that a classification designed to
prevent spurious claims has a rational basis. Stanton v.
Weinberger, No, 73-1959, Slip Op. (10th Cir. Sept. 3, 1974).
The point obviously has merit since parturition is normally
more easily proven than insemination. But whether the dis-
crimination need be as broad as that in the statute may re-
quire further inquiry.
In any event, there is at least some basis for plaintiffs’
response that the law discriminates without e ther compel-
ling or rational justification against unwed fathers and their
natural children on the basis of sex and illegitimacy. See, in
reference to rights to raise illegitimate children: May v.
Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843 (1953);
Skinner v. Oklahoma, 316 U.S. 585, 541, 62 S.Ct. 1110,
1113 (1942); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct.
625 (1923); in reference to rights of parents to custody and
care of children: Stanley v. Illinois, 405 U.S. 645, 651, 92
S.Ct. 1208, 1212 (1972); Griswold v. Connecticut, 381 U.S.
479, 496, 85 S.Ct. 1678, 1688 (1965) (Goldberg, J. concur-
ring); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct.
438, 442 (1944); in reference to extension of parental rights
to care for child to family not legitimated by marriage:
Weber v. Aetna Cas, and Surety Co,, 406 U.S. 164, 169, 92
S.Ct. 1400, 1408 (1972); Stanley v. Illinois, 405 U.S. at 651,
92 S.Ct. at 1212 (1972); Levy v. Louisiana, 391 U.S. 68, 71,
88 S.Ct. 1509, 1511 (1968); in reference to discrimination
based on legitimacy: Jimenez v. Weinberger ,
U.S. , 94 8.Ct. 2496 (1974); New Jersey Welfare Rights
Organization v. Cahill, 416 U.S, 619, 93 S.Ct. 1700 (1973);
Gomez v. Perez, 409 U.S. 535, 98 S.Ct. 872 (1973); Weber v.
Aetna Cas, and Surety Co., 406 U.S. 164, 92 S.Ct. 1400
(1972); Glona v. Amer. Guaranty and Liability Ins., 391
U.S. 78, 88 S.Ct. 1515 (1968); Levy v. Louisiana, 391 U.S.
68, 88 S.Ct. 1509 (1968); Skinner v. Oklahoma, 316 U.S,
535, 62 S.Ct. 1110 (1942); Griffin v. Richardson, 346
F.Supp. 1226 (D. Md.), aff'd, 409 U.S. 1069, 98 S.Ct. 689
(1972); Davis v. Richardson, 342 F.Supp. 588 (D. Conn.),
aff'd, 409 U.S. 1069, 8.Ct. (1972); concerning discrimina-
tion on the basis of sex: Taylor v. Louisiana, U.S. ,
Sup.Ct. , L.Ed. 2d ; Frontiero v. Richardson, 411
U.S. 677, 93 S.Ct. 1764 (1973); Reed v. Reed, 404 U.S. 71,
92 S.Ct. 251 (1971).
Plaintiffs contend that the law establishes an unwar-
ranted conclusive presumption of the absence of psychologi-
cal and economic ties between unwed fathers and their il-
legitimate children. See, Stanley v. Illinois, 405 U.S, 645,
92 S.Ct. 1208 (1972) (concerning the presumption that all
unwed fathers are neglectful parents); Cleveland Board of
Education v. La Fleur, 414 U.S. 682, 644, 94S8.Ct. 791, 798
(1974) (“ ‘permanent irrebuttable presumptions have long
been disfavored under the Due Process Clause of the Fifth
and Fourteenth Amendments’ ”).
Plaintiffs’ position, in view of the case law, is at least ar-
guable.
VII. CONCLUSION
Under the standard established in Goosby v. Osser, 407
U.S. 512, 518, 93 S.Ct. 858-59 (1973), plaintiffs’ case cannot
be considered wholly insubstantial, obviously frivolous, and
obviously without merit. Accordingly, a three-judge court
must be convened. Plaintiffs’ motion to certify the case as a
23
class action is deferred for consideration by the three-judge
court.
SO ORDERED.
Dated: Brooklyn, New York
January 23, 1975.
/S/) JAcK B. WEINSTEIN
U. S. D. J.
24
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DESIGNATION OF JUDGES
Having been notified by the Honorable Jack B. Wein-
stein, United States District Judge for the Eastern District
of New York, that an application has been filed in the above
matter for relief pursuant to Title 28 U.S.C. 2282 and 2284,
I hereby designate the following judges, ir addition to the
Honorable Jack B. Weinstein, to hear and determine said
cause as provided by law: Honorable Leonard P. Moore,
United States Circuit Judge, United States Court of Ap-
peals for the Second Circuit, and Honorable Henry Bram-
well, United States District Court fer the Eastern District
of New York.
IT IS HEREBY ordered that this order be filed in the
above matter in the United States District Court for the
Eastern District of New York.
/S/
IRVING R. KAUFMAN
Chief Judge
United States Court of Appeals
Second Circuit
Dated: New York, New York
May 7, 1975
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NOTICE OF MOTION FOR CLASS ACTION
CERTIFICATION, SUMMARY JUDGMENT AND
PERMANENT INJUNCTION
25
SIRS:
PLEASE TAKE NOTICE, that upon the annexed
affidavits, the plaintiffs’ statement pursuant to General
Rule 9 (g) of this Court, the attached exhibits, and all prior
proceedings and papers herein, the undersigned will move
this Three-Judge Court, before the Honorable Leonard P.
Moore, the Honorable Jack B. Weinstein, and the Honor-
able Henry Bramwell, in Court No. 10 at the United States
Courthouse, 225 Cadman Plaza East, Brooklyn, New York,
on September 4, 1975, at 2:30 p.m., or as soon thereafter as
counsel can be heard,
1. for an order pursuant to Rule 23(c) (1) of the Federal
Rules of Civil Procedure determining that this action is to
be maintained as a class action pursuant to Rule 23(a) and
Rule 23(b) (2) or, in the alternative, Rule 23(b) (1) (A) or
(B) of the Federal Rules of Civil Procedure, the class to be
defined as all United States citizen natural fathers and their
alien children born out of wedlock and not legitimated who
are excluded from the definition of “parent” and “child”
under INA §$101 (b) (1) and (2) (8 U.S.C. §$1101 (b) (1) and
(2) ) and thereby denied classification of the child as an
“immediate relative” exempt from numerical quotas pur-
suant to INA §§201 (a) and (b) (8 U.S.C. §§1151 (a) and
(b) ) and all United States citizen and permanent resident
children born out of wedlock and not legitimated and their
alien natural fathers who are excluded from the definition of
“parent” and “child” under INA §§101 (b) (1) and (2) (8
U.S.C. §§1101 (b) (1) and (2) ) and thereby denied exemp-
tion of the father from a “labor certification” requirement
pursuant to INA §212 (a) (14) (8 U.S.C. §$1182 (a) (14) );
2. for an order pursuant to Rule 56 of the Federal Rules
of Civil Procedure and 28 U.S.C. §2201 granting summary
judgement in favor of the plaintiffs and class members de-
claring the definitions of “parent” and “child” in Sections 101
(b) (1) and (2) of the Immigration and Nationality Act (8
U.S.C. §§1101 (b) (1) and (2) ) unconstitutional on their face
and as applied to plaintiffs and plaintiff class members, as
violative of the Due Process Clause of the Fifth Amend-
ment to the United States Constitution, on the grounds
26
that the plaintiffs are entitled to a judgment as a matter of
law; and
3. for an order pursuant to Rule 65 of the Federal Rules
of Civil Procedure and 28 U.S.C. §§2202 and 2282 granting
a permanent injunction permanently enjoining and restrain-
ing the defendants, and their officers, agents, servants,
employees and successors in office from enforcing, applying
or relying on the definitions of “parent” and “child” under
INA §§161 (b) (1) and (2) (8 U.S.C. §§1101 (b) (1) and (2) )
to deny “immediate relative” status pursuant to INA §§201
(a) and (b) (8 U.S.C. §§1151 (a) and (b) or exemption from
the “labor certification” requirement pursuant to INA §212
(a) (14) (8 U.S.C. §1182 (a) (14) to the plaintiffs and plaintiff
class members, and from failing to afford the plaintiffs
whatever immigrant status they would have had but for the
unconstitutional application of the challenged provisions;
and granting such other and further relief as to this Court
may seem just and proper.
Dated: New York, New York
August 7, 1975
TO:
DAVID G. TRAGER
United States Attorney
Eastern District of New York
United States Courthouse
225 Cadman Plaza East
Brooklyn, New York 11201
ATT: DouGLas J. KRAMER
Assistant United States Attorney
27
JOHN E. KIRKLIN
Director of Litigation
ANITA FISHER BARRETT
The Legal Aid Society
Civil Appeals Bureau
267 West 17th Street
New York, New York 10011
Tel.: (212) 691-8320
Attorneys for Plaintiffs
Yours, etc.
KALMAN FINKEL
ATTORNEY-IN-CHARGE
THE LEGAL AID SOCIETY
CIVIL DIVISION
MORTON B. DICKER
JANET M. CALVO
The Legal Aid Society
11 Park Place
New York, New York 10011
Tel.: (212) 227-2755
ANNETTE ELSTEIN and
JULIUS C. BIERVLIET,
Of Counsel
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
PLAINTIFFS’ STATEMENT UNDER
GENERAL RULE 9 (g) OF THE
MATERIAL FACTS AS TO WHICH
THERE EXIST NO GENUINE
ISSUES TO BE TRIED
1. The definitions of “parent” and “child” in the Immigra-
tion and Nationality Act, INA §1101 (b) (1) and (2), are
applied to determine whether an alien is entitled as a “par-
ent” or a “child” to classification as an “immediate relative”
under INA §1151 or exemption from the “labor certifica-
tion” requirement under INA §1182 (a) (14). A child born
out of wedlock and not legitimated is not the “child” of his
natural father within the meaning of this statutory section.
28
A natural father of a child born out of wedlock and not
legitimated is not a “parent” within the meaning of this
statutory section.
2. The members of the asserted class are so numerous that
joinder of all members is impracticable. (Exhibit L).
3. In connection with the claims of the Plaintiffs Ramon
Martin Fiallo and Ramon Augusto Rafael Fiallo-Sone, it is
asserted that:
a. Ramon Martin Fiallo, an infant citizen of the United
States, was born in New York, New York on January 2,
1971.
b. Ramon Fiallo-Sone is the natural father of Ramon
Martin Fiallo and his name appears on Ramon Martin Fial-
lo’s birth certificate (Exhibit A).
ce. Celia Francisca Michel Rodriguez, the natural mother
of Ramon Martin Fiallo, recognizes Ramon Fiallo-Sone as
the father of her child.
d. Ramon Fiallo-Sone and Celia Francisca Michel Rod-
riguez have never been married.
e. Ramon Fiallo-Sone entered the United States in De-
cember of 1964 as a visitor and was given permission to
depart from the United States voluntarily.
f. Since shortly after his son’s birth, Ramon Fiallo-Sone
has been the primary caretaker and constant companion to
his son. The son is a pre-school age child and is very de-
pendent upon and attached to his father. Celia Francisca
Michel Rodriguez assumed and continued the role of
bread-winner. She believes that it is in the best interests of
the child to live with his father in the United States.
g. The Fiallos cannot achieve the “parent-child” status by
legitimation or adoption of the son by the father. Legitima-
tion is not possible because of the unwillingness of the
father and mother to marry each other, and the refusal of
the mother to consent precludes adoption.
h. The effect of the application of the challenged status to
the plaintiffs Fiallos is to require as a prerequisite for his
lawful admission to this country that Mr. Fiallo obtain a
labor certification, which he has sought and failed to secure
in the past, and thereby to deny a United States citizen
29
child the companionship and care of his father in this coun-
try.
4. The proper preliminary step for obtaining an immigrant
visa and permanent resident status for a Western Hemi-
sphere father of a United States citizen child under
twenty-one is to file a Form FS 497A. A Form FS 497A,
“Preliminary Questionnaire to Determine Immigrant
Status,” was submitted on behalf of Ramon Fiallo-Sone to
the United States Consulate in the Dominican Republic.
Consul Catherine M. Hurley rejected and returned the
Form FS 497A and wrote a letter stating that Mr. Fiallo
must have a “labor certification” before he could be regis-
tered for immigration. (Exhibit B). She further stated that
the Fiallos could not benefit from exemption from the labor
certification requirement on the basis of their father-son re-
lationship because Ramon Martin Fiallo was not legitimate
or legitimated. By Consul Hurley’s action the Fiallos are
denied the benefit of registering for immigration, being
given a priority date for an immigrant visa, and being al-
lowed to apply for a visa without a labor certification. See
22 C.F.R. §§42.61, 42.62, 42.63. The date stamped on the
returned Form FS 497A indicated that the form had been
received in the U.S. Embassy at Santo Domingo, Domini-
can Republic on January 25, 1974. (Exhibit C).
5. In connection with the claims of Plaintiffs Trevor Aston
Wilson, Ear] Antonio Wilson and Arthur Cecil Wilson, it is
asserted that:
a. Trevor and Ear! Wilson are permanent residents of the
United States, A 17 564 218 and A 17 564 217, respectively.
b. Trevor and Earl Wilson were born on June 19, 1957
and January 6, 1959, respectively (Exhibits F and G) to Ar-
thur Cecil Wilson, and Leonie (Leony) (Muckle) Moses.
ce. Arthur Cecil Wilson and Leonie (Leony) (Muckle)
Moses have never married.
d. Trevor and Earl Wilson, and their maternal aunt,
Lena Hudson, recognize Arthur Cecil Wilson as their father
and Arthur Wilson acknowledges the paternity of Trevor
and Ear! Wilson.
e. From the time of their births until 1968, Trevor and
30
Earl Wilson lived with and were maintained by their
natural father, Arthur Wilson. Subsequent to 1968, Trevor
and Earl Wilson have maintained a relationship with their
father by visits and letters and Arthur Wilson has contrib-
uted to their support.
f. On September 15, 1974, Leonie (Leony) (Muckle)
Moses died in New York City, New York. (Exhibit H).
Upon the death of their mother, Trevor and Ear! Wilson
requested that their father come to the United States. Ar-
thur Wilson obtained an emergency visa and entered the
United States to be with his sons.
g. Arthur Cecil Wilson left the United States when the
extensions he was able to obtain on his visa expired. He
returned to Jamaica because without permanent resident
status he could not obtain a job in the United States and he
felt that in Jamaica he could work and contribute something
to the support of his children. He also did not want to viol-
ate the law by overstaying the time period allowed.
h. Trevor and Earl Wilson desire to stay in the United
States, continue their education and eventually become citi-
zens, but they desire and need their father to live with and
maintain them in the United States. Their maternal aunt,
Lena Hudson, believes this would be in their best interests.
The Wilson children want their father to return to the
United States as a permanent resident so that they can live
together as a family here.
i. Mr. Wilson cannot legitimate his children by marriage
to their mother, who is dead. Neither can they become his
adopted children within the meaning of immigration law be-
cause they both are over fourteen years of age. INA §101
(b) (1) CE) (8 U.S.C. $1101 (b) (1) (E) ).
j. Without an approved 1-550, Arthur Cecil Wilson can-
not obtain from the consul a priority date for an immigrant
visa without the necessity of obtaining a labor certification.
22 C.F.R. §$42.61, 42.62.
k. The 1-550 petition filed by Trevor Aston Wilson must
be denied by reason of the application of the challenged
statutes, since Trevor and his brother Earl are not legiti-
mate or legitimated issue of their father Arthur Wilson.
l. The effect of the application of the challenged statutes
-_
31
to the plaintiffs Wilsons is to subject Mr. Wilson to the
labor certification requirement, which will realistically be
impossible for Mr. Wilson to meet, since the sole job for
which he is qualified—general handy man—is one for which
a labor certification will never be furnished. See 29 C.F.R.
60.7 (Schedule B).
6. The proper preliminary procedure for a permanent resi-
dent under twenty-one to obtain an immigrant visa and
permanent resident status for his father is to file a Form
1-550. Plaintiff Trevor Aston Wilson submitted a Form
1-550 to the Immigration and Naturalization Service.
7. In connection with the claims of the Plaintiffs Serge Pat-
rick Warner and Cleophus Rupert Warner, it is asserted
that:
a. Serge Patrick Warner is the son of Cleophus Rupert
Warner, a naturalized citizen of the United States (Cer-
tificate Number 8941869), and was born on February 23,
1960, in the Commune De Saint-Martin, Departement de la
Guadeloupe, St. Martin, French West Indies.
b. Cleophus Warner has never bevr. married to Serge
Patrick Warner's natural mother, Elenore Carmelie Gibs.
ec. Shortly after the birth of his son, Cleophus Warner
registered as his father and acknowledged paternity and his
name therefore appears on the birth certificate. (Exhibit
D).
d. Mr. Warner has supported and maintained his son
from his birth until the present time and intends to con-
tinue to do so in the future.
e. Serge Patrick Warner entered the United States as a
visitor on August 22, 1969, solely with the intention of visit-
ing his father, Cleophus Rupert Warner. Shortly after his
entry, his mother married and informed Cleophus Rupert
Warner that she was moving to a new address and re-
quested him to keep their son, Serge Warner.
f. Serge Warner, who is now paroled into this country
pending exclusion proceedings, continues to reside with his
father, in the Borough of Queens, City and State of New
York, and his father continues to support and maintain him.
32
Serge Warner desires to become a permanent resident and
to remain in the United States with his father.
g. Mr. Warner cannot legitimate his son by marriage to
the mother because she has married another man.
h. Mr. Warner cannot obtain the status of “parent” of his
son by adopting him, since under the immigration law, INA
$101 (b) (1) (e) (8 U.S.C. $1101 (b) (1) (E) j, the adoption
must occur before the child is fourteen and Serge Warner is
beyond that age.
i. When Mr. Warner attempted to regularize Serge
Warner's status by writing to the United States Consul in
the French West Indies, he was informed that he must ob-
tain an approved I-130 Petition before the consul would
take any action.
j. The effect of the application of the challenged provi-
sions is to deny Mr. Warner, a United States citizen, the
care, companionship, custody and maintenance of his child
in the United States. Serge Warner will be forced to return
to a country where there is no one to care for him.
8. The proper preliminary step for obtaining an immigrant
visa and permanent resident status for the child of a United
States citizen is to file a Form 1-130. Cleophus Rupert
Warner filed a Form 1-130, “Petition to Classify Status of
Alien Relative for Issuance of Immigrant Visa,” with the
Immigration and Naturalization Service in New York City.
The petition was rejected on March 2, 1972 on the grounds
that it was mandatorily deniable under INA §101 (b) be-
cause Serge Patrick Warner was not the legitimate or
legitimated issue of Cleophus Warner. (Exhibit E).
Dated: New York, New York
August 7, 1975
Respectfully Submitted,
KALMAN FINKEL
Attorney-in-Charge
The Legal Aid Society
Civil Division
33
/S/-
Morton B. DICKER
JANET M. CALVO
The Legal Aid Society
11 Park Place
New York, New York 10011
Tel.: (212) 227-2755
/S/
JOHN E. KIRKLIN
Director of Litigation
ANITA FISHER BARRETT
The Legal Aid Society
Civil Appeals Bureau
267 West 17th Street
New York, New York 10011
Tel.: (212) 691-8320
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
(Title omitted in printing)
AFFIDAVIT OF RAMON AUGUSTO RAFAEL
FIALLO-SONE
STATE OF NEW YORK _)
: SS.:
COUNTY OF QUEENS )
RAMON AUGUSTO RAFAEL FIALLO-SONE, being
duly sworn, deposes and says:
1. I am the natural father of RAMON MARTIN
FIALLO, an infant citizen of the United States born in
New York, New York, on January 2, 1971.
2. My name appears as father on Ramon Martin Fiallo’s
Birth Certificate.
3. CELIA FRANCISCA MICHEL RODRIGUEZ is the
natural mother of my son, Ramon Martin Fiallo.
34
4. | am not married to Celia Francisca Michel Rodriquez.
5. Shortly after Ramon Martin Fiallo’s birth, I assumed
the role of primary caretaker and constant companion to
him and I continue that role to date.
6. Celia Francisca Michel Rodriguez assumed and con-
tinues to date the role of breadwinner.
7. | want to raise my son in the United States so he may
obtain the full benefits of his citizenship.
8. I am a citizen of the Dominican Republic.
9. I entered the United States in December, 1964, as a
visitor and was given permission to depart from the United
States voluntarily.
10. A Form FS 497A, ‘Preliminary Questionnaire To De-
termine Immigrant Status’ was submitted on my behalf to
the United States Consulate in the Dominican Republic, the
proper preliminary step for obtaining an immigrant visa
and permanent resident status for a Western Hemisphere
father of a United States Citizen child under twenty-one.
11. Consul Catherine M. Hurley returned the Form FS
497A and wrote a letter stating that I was not eligible for
an immigrant visa and permanent resident status on the
basis of my relationship to my citizen son because my son is
not my legitimate issue.
12. The stamp on the returned Form FS 497A indicated
that the Form had been received by the United States Em-
bassy at Santo Domingo, Dominican Republic, on January
25, 1974.
13. I reside with my son Ramon Martin Fiallo in Brook-
lyn, New York.
WHEREFORE, I respectfully request that the Court
grant plaintiff's motion for an Order allowing the joinder of
certain proposed defendants, for an Order determining this
action to be maintainable as a class action; and for an order
convening a three-judge court.
/S/
RAMON AUGUSTO RAFAEL FIALLO-SONE
SWORN TO BEFORE ME THIS
20 DAY OF NOVEMBER, 1974.
(Jurat omitted in printing)
35
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
(Title omitted in printing)
AFFIDAVIT OF
CELIA FRANCISCA MICHEL RODRIQUEZ
STATE OF NEW YORK )
: SS.:
COUNTY OF QUEENS )
CELIA FRANCISCA MICHEL RODRIQUEZ, being
duly sworn, deposes and says:
1. I am a legal permanent resident of the United States.
2. I am the natural mother of Ramon Martin Fiallo, an
infant citizen of the United States, born on January 2, 1971,
in New York, New York.
3. Ramon Augusto Rafael Fiallo-Sone is the natural
father of Ramon Martin Fiallo.
4. | am not married to Ramon Augusto Rafael Fiallo-
Sone.
5. Shortly after Ramon Martin Fiallo’s birth, his father,
Ramon Augusto Rafael Fiallo-Sone, assumed te role of
primary caretaker and constant companion to Ramon Mar-
tin Fiallo and continues that role to date.
6. I assumed and continue to date the role of breadwin-
ner.
7. I want my son to be raised in the United States so he
may obtain the full benefits of his citizenship.
8. Because my son is very dependent upon his father,
Ramon Augusto Rafael Fiallo-Sone, I believe that it is in
his best interest if Ramon Augusto Rafael Fiallo-Sone is
allowed to become a permanent resident so he may live
with Ramon Martin Fiallo in the United States.
9. I bring this action in my son’s behalf as his natural
guardian.
WHEREFORE, I respectfully request that the Court
grant plaintiff's motion for an Order allowing the joinder of
36
certain proposed defendants; for an Order determining this
action to be maintainable as a class action; and for an Order
convening a three-judge court.
/S/
CELIA FRANCISCA MICHEL RODRIGUEZ
SWORN TO BEFORE ME THIS
20 DAY OF NOVEMBER, 1974.
(Jurat omitted in printing)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
(Title omitted in printing)
AFFIDAVIT OF CLEOPHUS RUPERT WARNER
STATE OF NEW YORK )
: SS.:
COUNTY OF QUEENS )
CLEOPHUS RUPERT WARNER, being duly sworn,
deposes and says:
1. I am a naturalized citizen of the United States of
America, having been naturalized in the District Court of
the United States for the Eastern District of New York, on
April 26, 1966, under Certificate Number 8941869.
2. Serge Patrick Warner is my natural son and was born
on February 23, 1960, in the Commune De Saint-Martin,
Departement de la Guadeloupe, St. Martin, French West
Indies.
3. I never married Serge Patrick Warner's natural
mother, Elenore Carmelie Gibs.
4. Shortly after the birth of Serge Patrick Warner, I reg-
istered as his father and acknowledged paternity and my
name therefore appears on the Birth Certificate of Serge
Patrick Warner.
=®
37
5. I have supported and maintained Serge Patrick
Warner from his birth until the present time and intend to
continue to do so in the future.
6. Serge Patrick Warner entered the United States as a
visitor on August 22, 1969, solely with the intention of visit-
ing me.
7. Shortly after Serge Patrick Warner’s entry into the
United States, his mother, Elenore Carmelie Gibs informed
me by letter that she had married another man, and moved
to a new address, and she requested that I kee; iy son,
Serge Patrick Warner.
8. I filed a Form I-130, ‘Petition to Classify Status of
Alien Relative for Issuance of Immigrant Visa’, with the
Immigration and Naturalization Service, New York City,
New York, the proper preliminary step for obtaining an
immigrant visa and permanent resident status for an under
twenty-one unmarried child of a United States citizen.
9. The petition was rejected on March 2, 1972 on the
grounds that it was mandatorily deniable under INA
$101(b) because Serge Patrick Warner was not the legiti-
mate or legitimated issue of Cleophus Warner.
10. I also attempted to regularize Serge Patrick Warner's
status by writing to the U.S. Consul in the French West
Indies. In response, I was informed that I must obtain an
approved I-130 Petition before the Consul would take any
action.
11. Serge Patrick Warner is now paroled into the United
States pending exclusion proceedings.
12. Serge Patrick Warner continues to reside with me.
13. I continue to support and maintain him.
WHEREFORE, I respectfully request that this Court
grant the motion for an Order permitting CLEOPHUS
RUPERT WARNER and SERGE PATRICK WARNER
to intervene as Plaintiffs in the above entitled action on the
ground that there are common questions of law and fact and
that intervention will not unduly delay or prejudice the ad-
judication of the rights of the original parties; for an Order
allowing the joinder of certain proposed defendants; for an
Order determining this action to be maintainable as a ciass
action; and for an Oreer convening a three-judge court.
38
/S/
CLEOPHUS RUPERT WARNER
SWORN TO BEFORE ME THIS
19th DAY OF NOVEMBER, 1974.
(Jurat omitted in printing)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
(Title omitted in printing)
AFFIDAVIT OF SERGE PATRICK WARNER
STATE OF NEW YORK )
: SS.:
COUNTY OF QUEENS )
SERGE PATRICK WARNER, being duly sworn, de-
poses and says:
1. I am a citizen of the French West Indies.
2. I have lived with my father, Cleophus Rupert Warner,
since 1969.
3. I desire to obtain permanent resident status and re-
main in the United States with my father.
WHEREFORE, I respectfully request that this Court
grant the motion for an Order permitting CLEOPHUS
RUPERT WARNER and SERGE PATRICK WARNER
to intervene as Plaintiffs in the above entitled action on the
ground that there are common questions of law and fact and
that intervention will not unduly delay or prejudice the ad-
judication of the rights of the original parties; for an Order
allowing the joinder of certain proposed defendants; for an
—S--?
39
Order determining this action to be maintainable as a class
action; and for an Order convening a three-judge court.
/S/
SERGE PATRICK WARNER
SWORN TO BEFORE ME THIS
22nd DAY OF NOVEMBER, 1974.
(Jurat omitted in printing)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
(Title omitted in Printing)
AFFIDAVIT OF TREVOR ASTON WILSON
STATE OF NEW YORK _)
s &
COUNTY OF BRONX )
TREVOR ASTON WILSON, being duly sworn, deposes
and says:
1. I am a permanent resident of the United tates, No.
A 17 564 218.
2. I was born on January 19, 1957, in Jamaica.
3. I recognize Arthur Cecil Wilson as my natural father.
4. My mother, Leonie Muckle Moses, was never married
to Arthur Cecil Wilson.
5. From my birth until 1968 when I came to the United
States, I lived with my father, Arthur Cecil Wilson.
6. Subsequent to 1968 I maintained a relationship with
my father by visits and letters and my father contributed to
my support.
7. On September 15, 1974, my mother, Leonie Muckle
Moses, died in New York City, New York.
8. Upon my mother’s death, I and my brother, Ear] An-
40
tonio Wilson, wired our father, Arthur Cecil Wilson, re-
questing that he come to the United States.
9. Arthur Cecil Wilson obtained an emergency visa and
entered the United States.
10. Arthur Cecil Wilson left the United States when the
extensions he was able to obtain on his visa expired.
11. He returned to Jamaica because without permanent
resident status he could not obtain a job in the United
States and he felt that in Jamaica he could work and con-
tribute something to the support of my brother and I. He
also did not want to violate the law by overstaying the time
period allowed.
12. I intend to continue my education, live in and become
a citizen of the United States.
13. I want and need my father, Arthur Cecil Wilson, to
live with and maintain me in the United States.
14. As the older child, I submitted a Form I-550 to the
Immigration and Naturalization Service in New York City,
New York, the proper preliminary procedure for obtaining
an immigrant visa and permanent resident status for a par-
ent of a United States permanent resident child unmarried
and under twenty-one years.
WHEREFORE, I respectfully request that this Court
grant the motion for an Order permitting TREVOR
ASTON WILSON and EARL ANTONIO WILSON by
their next friend, LENA HUDSON, and ARTHUR CECIL
WILSON, to intervene as plaintiffs in the above entitled
action on the ground that there are common questions of
law and fact and that intervention will not unduly delay or
prejudice the adjudication of the rights of the original par-
ties; for an Order allowing the joinder of certain proposed
defendants; for an Order determining this action to be
maintainable as a class action; and for an Order convening a
three-judge court.
/S/
TREVOR ASTON WILSON
SWORN TO BEFORE ME THIS
19 DAY OF NOVEMBER, 1974.
(Jurat omitted in printing)
41
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
(Title omitted in printing)
AFFIDAVIT OF EARL ANTONIO WILSON
STATE OF NEW JERSEY )
: SS.:
COUNTY OF MERCER )
EARL ANTONIO WILSON, being duly sworn, deposes
and says:
1. Iam a permanent resident 0° “he United States, No. A
17 564 217.
2. I was born in Jamaica on January 6, 1959.
3. I recognize Arthur Cecil Wilson as my natural father.
4. My mother, Leonie Muckle Moses, was never married
to Arthur Cecil Wilson.
5. From my birth until 1968 when I came to the United
States, I lived with my father, Arthur Cecil Wilson.
6. Subsequent to 1968 I maintained a relationship with
my father by visits and letters and my father contributed to
my support.
7. On September 15, 1974, my mother, Leonie Muckle
Moses, died in New York City, New York.
8. Upon my mother’s death, I and my brother, Trevor
Aston Wilson, wired our father, Arthur Cecil Wilson, re-
questing that he come to the United States.
9. Arthur Cecil Wilson obtained an emergency visa and
entered the United States.
10. Arthur Cecil Wilson left the United States when the
extensions he was able to obtain on his visa expired.
11. He returned to Jamaica because without permanent
resident status he could not obtain a job in the United
States and he felt that in Jamaica he could work and con-
tribute something to the support ef my brother and I. He
also did not want to violate the law by overstaying the time
period allowed.
42
12. I intend to continue my education, live in and become
a citizen of the United States.
13. I want and need my father, Arthur Cecil Wilson, to
live with and maintain me in the United States.
WHEREFORE, I respectfully request that this Court
grant the motion for an Order permitting TREVOR
ASTON WILSON and EARL ANTONIO WILSON by
their next friend, LENA HUDSON, and ARTHUR CECIL
WILSON, to intervene as Plaintiffs in the above entitled
action on the ground that there are common questions of
law and fact and that intervention will not unduly or preju-
dice the adjudication of the rights of the original parties; for
an Order allowing the joinder of certain proposed defend-
ants; for an Order determining this action to be maintaina-
ble as a class action; and for an Order convening a three-
judge court.
/S/
EARL ANTONIO WILSON
SWORN TO BEFORE ME THIS
20th DAY OF NOVEMBER, 1974.
(Jurat omitted in printing)
AFFIDAVIT OF ARTHUR CECIL WILSON
STATE OF NEW YORK )
: S.:
COUNTY OF BRONX )
ARTHUR CECIL WILSON, being duly sworn, deposes
and says:
1. That I am a citizen of Jamaica.
2. That I am the father of Trevor Aston Wilson born on
June 19, 1957, and of Earl Antonio Wilson born on January
6, 1959.
3. That Leonie (Leony) Moses (Muckle) is the mother of
the children in paragraph “2” above.
4. That I lived with and supported Ear! and Trevor Wil-
43
son until 1968, and have maintained a relationship with
them thereafter until date.
5. That Leonie Moses (Muckle) died on September 15,
1974, in New York, New York.
6. Upon the request of my children, I obtained an
emergency visa and came to the United States.
7. Because I believe my children are in need of my
psychological and financial support, I desire to obtain a
permanent residency in the United States so that I may live
with and assist them.
8. I understand that under the present immigration law,
I may not do so because I was not married to Leonie Moses
(Muckle), the mother of the children.
9. I believe this situation denies me my rights under the
First, Fifth and Ninth Amendments to the United States
Constitution, and therefore I desire to join an action now
pending in the United States District Court for the Eastern
District of New York, Civil action No. 74C1083.
/S/
ARTHUR CECIL WILSON
SWORN TO BEFORE ME THIS
24 DAY OF OCTOBER, 1974.
(Jurat omitted in printing)
44
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
(Title omitted in printing)
AFFIDAVIT OF LENA HUDSON
STATE OF NEW YORK )
: SS.:
COUNTY OF BRONX )
LENA HUDSON, being duly sworn, deposes and says:
1. I am the maternal aunto of Trevor Aston Wilson and
Ear! Antonio Wilson.
2. I recognize Arthur Cecil Wilson as the natural father
of Trevor Aston Wilson and Earl Antonio Wilson.
3. I believe it would be in the best interest of my
nephews if their father, Arthur Cecil Wilson, lived with and
maintained them.
4. As the next friend of my nephews, I bring this action
in their behalf.
WHEREFORE, I respectfully request that this Court
grant the motion for an Order permitting TREVOR
ASTON WILSON and EARL ANTONIO WILSON, by
their next friend, LENA HUDSON, and ARTHUR CECIL
WILSON, to intervene as Plaintiffs in the above entitied
action on the ground that there are common questions of
law and fact and that intervention will not unduly delay or
prejudice the adjudication of the rights of the original par-
ties, for an Order allowing the joinder of certain proposed
defendants; for an Order determining this action to be
maintainable as a class action, and for an Order convening a
three-judge court.
/S/
LENA HUDSON
SWORN TO BEFORE ME THIS
18th DAY OF NOVEMBER, 1974.
(Jurat omitted in printing)
45
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
(Title omitted in printing)
STIPULATION
IT IS HEREBY STIPULATED and AGREED by and
among the parties hereto by their respective attorneys that
if class action is otherwise appropriate, the class is so
numerous that joinder of all members is impracticable.
DATED: NEW YORK, NEW YORK
February 21, 1975
MorTON B. DICKER, ESQ.
THE LEGAL AID SOCIETY
11 Park Place
NY NY 10007
Attorneys for Plaintiffs
BY:
/S/
JANET M. CALVO, ESQ.
DAVID G. TRAGER
UNITED STATES ATTORNEY
EASTERN DISTRICT OF NEW YORK
Attorneys for Defendants
BY:
/S/
DOUGLAS J. KRAMER
Assistant U.S. Attorney
(EXHIBIT L)
EMBASSY OF THE -
UNITED STATES OF AMERICA
Consular Section
Santo Domingo, Dominican Republic
February 22, 1974
The Legal Aid Society Re: Ramon Augusto Fiallo
Park Place Office
Eleven Park Place, New York, N. Y. 10007
Dear Sir : Atta: Janet Calvo
The receipt is acknowledge of your recent letter which is returned
herewith for your ready reference.
The Immigration and Nationality Act requires that 2 prospective
immigrant born in the Western Hemisphere have a labor certification
to be registered for immigration. The spouse, pareut or minor child
of an American citizen or of a legal resident alien of the United
States is exempt from this requirement.
It is assumed from your letter that Mr. Fiallo end the mother of
Ramon Martin were never married. It would appear therefore that the
only way in which Mr. Fiallo could benefit under the immigration lavs
of his relationship to the child would be if the child were legitinated
under the laws of the child's residence. If legitimation takes place,
evidence to that affect should be submitted with Fora FS-497 and birth
certificate so that Mr. Fiallo may be registered on the waiting list.
Under Dominican law a child may be legitimated only by the marriage
of his parents. Recognition of paternity does not serve this purpose.
As Mr. Fiallo's case now stands, he needs a labor certification based
on an offer of exployment approved by the Department of Labor unless
he can bring his case within the exception provided for the parext of
an American citizen through the legitimation of his son prior to his
18th birthday.
of the United Sygtes of
America
(We are not keeping any record of this correspondence. Should yor write
again, please return this letter and the attachment hereto.)
Sto
C-1 10/69
(EXHIBIT B)
47
r DEPARTMENT OF STATE
PRELIMINARY QUESTIONNAIRE TO DETERMINE IMMIGRANT STATU;
To: 09 NOT WAITE IN TrS SPac:
TUE UNITED STATES CONSUL AT
SANTO DOMINGO, DOMICIICAN REPUSLIC
lastructions tor
Sen
INSTRUCTIONS
Mi a carcfa! readia g of Form DSL-352A indicates that you should {ile this fora, please complete it aad forward i: to the designated
coase!ar office. This form mast be completed ia Eaglish aad typed or printed ia legible block letters. Shen this form is retursed
to you, pirase retaia it as it must be attached to any future corre: poadeace addressed to the consular office.
i. MAME (Lest reme) (Firm wom) (detdle memes)
Fiallo Ramon Augusto Rash2al
2. OTHEa NAMES, A ALIASES UF exerted women, give mendes nome —o) of any » Spouses)
Piallo-Sone (family name)
3. PRESENT ADORESS (Hewse number, street, erty, store end ZIP code)
385 Weirfield Street, Brookl 11227
Aim (city, store a province, country) S. DATE OF BIRTH (Men™, Oey, Yor)
vee PeGro de Maeoris, Dominican Republic eot. 26, 1923
Divorced
7: Passport Ne.
Asseed by
Issue date
AMO GIRTHALACE CF FATHE? © « MAIOEN NAME ANO GIRTH Or molmca
Miguel Piallo, Dominican Republic Narcisa Sone, Dominican Reoublic
2. MAME OF SPOUSE (Marden o- fom. iy nome) (F teat meme) Urddie nome)
* ine BiIATHPLACE icity, Siete or provimne, Country) ]14. SPOUSE S BIATHOATE (Month, Oey, Voer)]i5. WILL —ve
wiiny
oO or CD te
18. NAMZ ANO BIRTHPLACE OF SPOUSE’S FATHER - NAME AND BIRTHPLACE OF SPOUSES MOTHER
18. iF YOU HaVE A SPOUSE, PARENT OR CHILD WHO IS A UNITED STATES CITIZEN OR ALIEN PESIDENT, PLEASE
COMPLETE THE FOLLOWING:
ae =e aTION tee sTerus mu. 3. 1 PmES ENT 200888
B85 Weirfield Street
Ramon Martin Piallo Son Citizen Brooklvn, New :
=
| ~n
19. 1F YOU HAVE ANY RELATIVES IN THE UNITED STATES OTHE? THAN THOSE IDENTIFIED ABOVE, coum gre Tes FCULLCeING:
awe PEL ATIONSHIP staTus & vu. 4s. Praeger «5°
~
=
Sy
20. YOUR PRESENT STATUS IN THE UNITEO STATES
) Parolee ([) Orher (specify) Visitor
) ledefiounte voluntary departure status Alies registration sumbe-
21. MATICNALITY (lnetedeng farmer, f ony! 22. PRESENT OCCUPATION O8 VOCATION
DOMINICAN REPUSLIC Draftsman
FORM &s 4978
6-49
(EXHIBIT C)
48
UNITED: STATES DEPARTMENT OF JUSSICE
Immigzaiva ant Neturdizetion Sinicz
aod LoAk, USF TORT
REFER TO THIS File NO,
Aid 405 321
oP. Cleczhsa 2. scarcer Bute: maga 1972
2-H Alita Srrc2zs =
Corema, cv Yors
DECISION
Upon consideration, it is ordered that your vies vetitic2 subcitco3 in tebal?
>. Cee all
of Serse Potrics Fooucr be denied for the following reasons:
Eection 102 (3) af the I=stigction <=} Gatiocelity Act, a9 mended
proevices that the relsticnsnis of a ciild threcgh a Zathor wemst ty
29 9 result o2 2 valis ze>ricze sad ths czild aust te lesiticsta oa
Rave been leriticets.
Ia the absecce of ory evidence that 7ou have sve> Deen =arrTicd to the
boy’ 3 zotner of that he has ever bcen legiticotsJ, yorr potition is
nandatesily deniccle.
If you desire to appeal this decision, you may do so. Your notice of appeal must be filed within
15 days from the date of this notice. If no appeal is filed within the time allowed, this decision is final.
Appeal in your case may be made to:
soxzz Board of Immigration Appedis in Washington, D. C., on the enclosed Forms 1-290 A.
(10: Regional Commissioner on the enclosed Form 1-290 B.
If an appeal is desied, the Notice of Appeal shall be executed and filed with this office, together
with 2 fez uf $25. A deief of other written statement in support of your appesl may be submitted with
the Notice of Appeal.
Any question which you inay have will Se answered by the focal ummigzution office nearest your
resi@ence, or ot the address shown in the hezding to this letter.
Sincerely yours,
Euchosurcls) | District Duector
re
s
ot Porn tcet
Dead el
’
(EXHIBIT E)
49
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
(Title omitted in printing)
NOTICE OF MOTION TO DISMISS
SIRS:
PLEASE TAKE NOTICE that upon all the papers and
proceedings heretofore had herein, the defendants will
move this Statutory Court, before the Honorable Leonard
P. Moore, the Honorable Jack B. Weinstein, and the Hon-
orable Henry Bramwell, in Courtroom No. 10 at the Fed-
eral Courthouse, 225 Cadman Plaza East, Brooklyn, New
York, on the 4th day of September, 1975 at 2:00 p.m. in the
afternoon of that day for an order, pursuant to Rules 12(b)
(1) and (6) of the Federal Rules of Civil Procedure dismis-
sing this action and for such other and different relief as to
the court seems just and proper.
Dated: Brooklyn, New York
August 15, 1975
Yours, etc.,
DAVID G. TRAGER
United States Attorney
Eastern District of New York
Attorney for Defendants
225 Cadman Plaza East
Brooklyn, New York 11201
By:
/S/
DOUGLAS J. KRAMER
Assistant U.S. Attorney
To: Kalman Finkel, Esq.
Attorney-in-Charge
Legal Aid Society
Janet M. Calvo
John E. Kirklin
Anita Fisher Barrett
Of Counsel
Attorneys for the Plaintiffs
11 Park Place
New York, New York 10011
51
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
RAMON MARTIN FIALLO, An infant by his
Mother, CELIA FRANCISCA MICHAEL
RODRIGUEZ, and RAMON AUGUSTO
RAFAEL FIALLO-SONE; CLEOPHUS :
RUPERT WARNER and SERGE PATRICK
WARNER, An infant by his father,
CLEOPHUS RUPERT WARNER; TREVOR
ASTON WILSON and EARL ANTONIO :
WILSON, Infants by their aunt and next friend
LENA HUDSON, and ARTHUR CECIL
WILSON, on behalf of themselves and all other
persons similarly situated,
PLAINTIFFS,
—against—
:74 C 1083
EDWARD H. LEVI, individually and as At- :
torney General of the United States;
LEONARD E. CHAPMAN, JR., individually
and as Commissioner of the Immigration and
Naturalization Service; MAURICE KILEY,
individually and as District Director of the Im-
migration and Naturalization Service for New
York City; HENRY KISSINGER, individually
OPINION
: AND
ORDER
and as Secretary of State of the United States; :
LEONARD WALENTYNOWICZ, individually
and as Administrator of the Bureau of Security
and Consular Affairs, Department of State;
JULIO ARIAS, individually and Director of :
Visa Office, Bureau of Security and Consular
Affairs, Department of State; CATHERINE
M. HURLEY, individually and as Consul of the
United States of America, Santo Domingo,
Dominican Republic,
Defendants.
52
APPEARANCES: JANET CALVO, Esq., New York, N.Y.
(Kalman Finkle, Morton B. Dicker,
John E. Kirklin, Anita Fisher Barett,
Esqs., The Legal Aid Society) for
Plaintiffs.
DouGLAS J. KRAMER, Esq., Assistant
U.S. Attorney, Brooklyn, New York
(David G. Trager, United States
Attorney, Eastern District of New York)
for Defendants.
BEFORE: Moore, Circuit Judge, WEINSTEIN
and BRAMWELL, District Judges.
Moore, Circuit Judge:
This is an action challenging the constitutionality of two
classifications of aliens established by Congress as part of a
comprehensive scheme for the admission of aliens into the
United States contained in the Immigration and Nationality
Act (the “Act”), Title 8 U.S.C. §1101 et seg. Plaintiffs spe-
cifically challenge the Act’s definition of “parent” and “child”
insofar as it excludes the relationship between unwed,
biological fathers and their illegitimate children.' The effect
of the exclusion is to subject the aliens in question to re-
strictive numerical quotas and labor certification require-
' The relevant section is 1101(b) (1) (2), which reads:
(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 had
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 years and the child is in the legal custody of the legitimat-
ing 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
53
ments which are waived for individuals who qualify as par-
ents or children, within the meaning of the Act, of Ameri-
can citizens and permanent residents.” Plaintiffs are three
sets of unwed, biological fathers and their illegitimate
offspring. Both the aliens excluded by this section of the
Act and the American citizens or permanent residents who
are these aliens’ illegitimate children or biological fathers
have joined as plaintiffs in this suit; their claim is that the
statutory classification is unconstitutional on its face since
unwed biological fathers are excluded while unwed biologi-
cal mothers are not.
A three-judge court was ordered convened, and plaintiffs
have moved this Court for certification as a class action,
summary judgment, and a permanent injunction. For the
reasons which follow, those motions are denied, and judg-
ment is entered for the defendant. The facts are not in dis-
pute, and may be summarized briefly.
Ramon Fiallo, an infant and an American citizen by birth,
applied—through application submitted on his behalf by his
mother—to the United States Consul in the Dominican Re-
public to have his alien father officially declared to be his
parent under the immigration laws, so that the latter might
parent or parents for at least two years: Provided, That no natural parent of
any such adopted child shall thereafter, by virtue of such parentage, be ac-
corded any right, privilege, or status under this chapter.
(F) a child, under the age of fourteen at the time a petition is filed in his
behalf to accord a classification as an immediate relative under section
1151(b) of this title, who is an orphan because of the death or disappearance
of, abandonment or desertion by, or separation or loss from, both parents, or
for whom the sole or surviving parent is incapable of providing the proper
care which will be provided the child if admitted to the United States and
who has in writing irrevocably released the child for emigration and adop-
tion; who has been adopted abroad by a United States citizen and his spouse
who personally saw and observed the child prior to or during the adoption
proceedings; or who is coming to the United States for adoption by a United
States citizen and spouse who have complied with the preadoption require-
ments, if any, of the child’s proposed residence: Provided, That no natural
parent or prior adoptive parent of any such child shall thereafter, by virtue
of such parentage, be accorded any right, privilege, or status under this
chapter.
(2) The terms “parent”, “father”, or “mother” mean a parent, father, or
mother only where the relationship exists by reason of any of the circumstances
set forth in subdivision (1) of this subsection.
2? 8 U.S.C. $1151(b), 8 U.S.C. §1182(a) (14).
od
remain permanently in the United States. Ramon Fiallo’s
petition was rejected, the Consul stating that Fiallo senior
could not be declared the parent of an American citizen
since his child was illegitimate. At present, both parents
are living together in this country with their child; although
the father could qualify as a parent if he legitimated his
son, he and the boy’s mother do not wish to marry.
Cleophus Warner, a naturalized American citizen, at-
tempted to have his illegitimate son Serge, a citizen of the
French West Indies, officially declared to be his child
within the meaning of the Act by filing a petition with im-
migration authorities in New York, so that the boy might
remain permanently with his father in this country. The
petition was rejected since the boy was neither the father’s
legitimate nor legitimated offspring, and hence he could not
meet the Act’s definition of a child.
Trevor and Arthur Wilson are two brothers under
twenty-one years of age who are permanent residents of
the United States. After the death of their biological
mother they sought to have their father, a citizen of
Jamaica, officially classified as their parent so that he might
qualify for permanent residency in this country. It is not
clear whether their petition has already been denied, but
denial is certain since the boys were never legitimated and
hence their father cannot qualify as a parent under the Act.
The alien fathers and son in this action believe that their
only realistic avenue of admittance to this country on a
permanent basis is through classification as the parent or
child of an American citizen or permanent resident. Fiallo
senior has sought a labor certificate unsuccessfully in the
past; Wilson senior alleges that the only job for which he is
qualified—that of general handyman—is one for which the
required certificate is not granted.
Subject matter jurisdiction is conferred on this Court by
section 279 of the Act, Title 8 U.S.C. §1329.
A threshold question is presented with regard to Fiallo’s
standing to maintain this action. The administrative deci-
sion on which Fiallo bases this suit is the denial of his peti-
tion by the United States consul at Santo Domingo. Deci-
sions of consuls granting or denying a visa have been held
55
to be immune from judicial review. See, e.g., Loza-Bedoya
v. INS, 410 F.2d 343 (10th Cir. 1975). We note, however,
that the petition in question here did not constitute an ap-
plication for a visa, but was a preliminary declaration of
immigrant status. We will not extend consular non-
reviewability, insofar as that rule has been recognized, be-
yond the actual grant or denial of a visa. This is predicated
upon our reluctance to insulate entirely the actions of any
public official from judicial scrutiny, and thereby foreclose a
group of plaintiffs from seeking relief in the courts. Plaintiff
allo, therefore, is not barred from bringing this action.
Turning to the merits, we begin with the proposition that
Congress’ power to make rules for the admission and expul-
sion of aliens is exceptionally broad.
This Court without exception has sustained Con-
gress’ plenary power to make rules for the admission of
aliens and to exclude those who possess those charac-
teristics which Congress has forbidden. Over no con-
ceivable subject is the legislative power . . . more com-
plete than it is over the admission of aliens.
Kliendienst v. Mandel, 408 U.S. 753, 766, 92 S.Ct.
2576, 2583, 33 L.Ed. 2d 633 (1972) (quotation marks
and citations omitted)
The limits to the exercise of this power are few, for an alien
has no constitutional right to enter or remain in this coun-
try, Kliendienst v. Mandel, supra. Moreover, he may be
denied entrance on grounds which would be constitutionally
suspect or impermissible in the context of domestic policy,
namely, race,® physical condition, political beliefs,5 sexual
proclivities,* age,’ and national origin.®
In regulating the admission of aliens who are the spouses,
parents, and children of American citizens and permanent
3 Dunn vy. INS, 499 F.2d 856, 858 (9th Cir. 1974).
* U.S. v. Esperdy, 277 F.2d 537, 539 (2d Cir. 1960).
5 Kliendienst v. Mandell, supra.
* Boutilier v. INS, 387 U.S. 118, 87 S.Ct. 1563, 18 L.Ed. 2d 661 (1967).
7 Nazareno v. Attorney General of the United States, 512 F.2d 986 (D.C. Cir.
1975).
* Faustino v. INS, 482 F.2d 429, 431 (2d Cir. 1970), cert. denied, 401 U.S. 921,
91 S.Ct. 909, 27 L.Ed. 2d 824 (1971); Hitai v. INS, 343 F.2d 466, 467 (2d Cir.
1965), cert. denied, 382 U.S. 816, 86 S.Ct. 36, 15 L.Ed. 2d 68 (1965.
56
residents, Congress has chosen to specify the kind of rela-
tionships which are, for purposes of the immigration laws,
embraced within those terms. This is a perfectly proper
exercise of the Congressional responsibility to admit into
this country those individuals who will be desirable addi-
tions to our populace. This includes individuals who will re-
spect our system of government ® and who will be useful
additions to our labor force,'® as well as those whose lives
reflect personal standards of conduct important to our soci-
ety’s sense of morality. And while the Congress’ view about
what kind of marital or parental relation should be encour-
aged in this country may differ from the individual views
held by the members of the courts, it is not for the judiciary
to usurp the legislative function and replace the Congres-
sional standards with its own.
A number of courts have ruled on the question of
whether, in the immigration field, Congress may constitu-
tionally apply its own standards with respect to the status
of familial relations, and we note that this power has con-
sistently been upheld. In United States v. Dioge, 320 F.2d
898 (2d Cir. 1963), this Court held that a marriage valid
under state law need not be recognized as valid under the
immigration laws.
Of course Congress may adopt a federal standard of
bona fides for the limited purpose of denying immi-
gration priorities to persons whose marriages do not
meet the standard. That standard, embodied in the
Congressional understanding of the terms “marriage”
and “spouse” as those terms appear in the immigration
statutes is, of course, the relevant standard to apply in
exclusion or deportation proceedings brought under the
statutory provisions appropriate. 320 F.2d at 905.
In Faustino v. INS, 432 F.2d 429 (2d Cir. 1970), cert.
denied, 401 U.S. 921, 91 S.Ct. 909, 27 L.Ed. 2d 824 (1971),
we held that it was not unconstitutional for Congress to
permit citizen children over the age of twenty-one to bring
their alien parents into this country without regard to nu-
* Kliendeinst v. Mandel, supra.
1° See, e.g., Buckley v. Gibney, 332 F.Supp. 791 (S.D.N.Y. 1971)
57
merical quotas, but to deny that same privilege to citizen
children under that age. Accord, Perdido v. INS, 420 F.2¢
1179 (5th Cir. 1969). And in an analagous situation the Dis-
trict of Columbia Circuit upheld the application of one as-
pect of the Act’s restrictive definition of child to the provi-
sion of the Act granting priority status to the sons and
daughters of American citizens;'! the effect of the holding
was to deny the status of child, and hence the consequent
statutory benefits, to aliens who were adopted by American
citizens after their fourteenth birthdays.'* Nazareno v. At-
torney General of ihe United States, supra.
There is no doubt that Congress can establish classifica-
tions which result in the granting of benefits to one group of
individuals, and their denial to another. Unless the immi-
gration laws in question are wholly devoid of any conceivable
rational purpose,'* or are fundamentally aimed at achieving
a goal unrelated to the regulation of immigration,’* they
are not unconstitutional encroachments on the right to
equal protection of the laws.
At the request of the Court the Legal Aid Society repre-
senting the plaintiffs submitted a most able and exhaustive
post-trial memorandum demonstrating via statistical tables
and many treatises its thesis that the “courts are giving
increasing legal recognition to the reality that unwed
8 U.S.C. §115 (a) (1)
12 This is one of the several types of individuals whom we might commonly call
children, but who are excluded from the Act’s definition of that term. Others
excluded are married children, children over twenty-one years of age, step-
children who were over eighteen when the marriage creating their status oc-
curred, children who were legitimated after they were eighteen. Similarly, the
mothers and fathers of these individuals are not accorded the tatus of parents
within the meaning of the Act.
13 This Court has held that there is no need to apply the test of compelling state
interest in immigration cases, since alienage is not a suspect classification for
purposes of legislation regulating the admission and expulsion of aliens. Noel v.
Chapman, 508 F.2d 1023, 1028 (2d Cir. 1975).
14 In this regard we note that where the Congressional purpose of any law re-
garding aliens is not to regulate immigration but to invidiously discriminate
against American citizens, permanent residents, or already-admitted aliens,
that law cannot—in contrast to the one under consideration here—withstand
constitutional scrutiny. See Mow Sun Wong v. Hampton, 500 F.2d 1031, 1036
(9th Cir. 1974); Ramos v. United States Civil Service Commission, 376
F.Supp. 361, 366 (D. Puerto Rico 1974); cf. Graham v. Richardson, 403 U.S.
365, 91 S.Ct. 1848, 91 L.Ed. 2d 534 (1971).
58
fathers, like mothers, have close ties to their illegitimate
children.” (Post-Argument Memorandum, p. 17). From
these statistics and extensive bibliography counsel draw
the conclusion that “the evidence leaves no rational under-
yinning for discriminatory treatment of unwed natural
fathers and their illegitimate children, and leaves no doubt
of the patent unconstitutionality of the severe and extreme
form of discrimination effectuated by the statutory provi-
sions challenged herein.” (Id. p. 21). These conclusions,
plaintiffs say (Id. p. 1), demonstrate “the utter irrationality
of the unwarranted conclusive presumptions effectuated by
the challenged provisions. . .”
However, in view of the need to establish administrative
procedures abroad which can process immigration applica-
tions efficiently, avoid extremely difficult problems of in-
vestigation and proof, and minimize the potential for sham
claims, we cannot say that the legislative decision to
exclude unwed, biological fathers and their illegitimate
children from the statutory definitions of parent and child is
patently unreasonable. Cf. Faustino v. INS, supra. For
example, while the names of biological mothers routinely
appear on such documents as birth certificates, this may not
be the case where unmarried fathers have not acknowl-
edged paternity officially at about the time of birth. Al-
though such evidence would not necessarily be conclusive of
one’s status as a parent, nevertheless we perceive that it
might be more difficult for an unrelated adult to pose as a
child’s mother than a child’s father, where the birth cer-
tificate contains a definite name and identification of the
mother only.
As a matter of law, therefore, the challenged immigration
provisions are not so arbitrary or capricious as to be uncon-
stitutional; accordingly, we conclude that plaintiffs’ pro-
vocative statistics and ably documented argument, which
certainly would merit Congress’ attention, cannot be given
weight here, lest this Court engage in the kind of policy-
making activity which is properly the province of the legis-
lative branch and not the judiciary.
Plaintiffs urge that Congress’ primary purpose in
exempting the parents of children of American citizens and
59
permanent residents from quota limitations and labor cer-
tification requirements was to enable families to be to-
gether in the United States. Without question, the policy
behind the statutory enactments was a benevolent one;
however, we cannét accept plaintiffs’ unspoken assumption
that they, and not Congress, should determine who consti-
tutes the “family” which shall be allowed to enter this coun-
try on a priority basis. The statutory language is quite clear
in its exclusion of unwed fathers and their illegitimate chil-
dren; the fact that Congress focused upon the type of family
which it determined should have the right to emigrate en
masse to our shores! indicates that it may well have de-
cided that, on balance, unwed fathers would not have such
relations with their illegitimate children as wouid justify
their’ being given this special exemption from the normal
immigration requirements which apply to all other indi-
viduals seeking visas for permanent residency.
Even if it be assumed arguendo that biological, unwed
fathers should under all circumstances be accorded the
rights of parents, plaintiffs’ constitutional claim cannot pre-
vail. The possibility of joining one’s closest family in the
United States is a privilege granted by statute, not a right
given by the Constitution.
There can be no doubt but that [the appellants] as un-
admitted and non-resident aliens have no constitutional
right to enter and remain in this country. It is equally
clear that their wives as resident aliens have no constitu-
tional right to keep them here on the theory that the in-
tegrity of the family is protected by equal protection
principles.
Noel v. Chapman, 508 F.2d 1023, 1027 (2d Cir. 1975).
The same rule has been applied by this Court when the
15 Counsel for the Government persuasively suggested at oral argument that
plaintiffs’ position could have sobering consequences if adopted by immigration
officials: an unwed mother living here could bring to the United States all of
her illegitimate children, each of whom could bring over his or her biological
father; each father could then bring over al! of the children he has ever
fathered, and thereafter each of those children could bring over his or her
mother, who could then bring over all of her illegitimate children, etc., etc.,
etc.
60
individual seeking to challenge an alien’s expulsion was the
alien's United States citizen-child. Enciso-Cardozo v. INS,
504 F2d 1252, 1253 (2d Cir. 1974); cf. Faustino v. INS,
supra. As we recognized in Noel v. Chapman, supra at
1027-8, the burden of separation from one’s kin which oc-
curs when an alien relative is properly excludable under our
immigration laws and the American citizen or resident de-
termines not to leave this country in order to be with the
alien, is not the equivalent of the statutory destruction of
the marriage or family relationship. Certainly a difficult
choice is involved, but it is not one which is forbidden by
the Constitution.
Plaintiffs’ final argument is that the operation of the Act’s
definition of parent and child works a constitutionally im-
permissible hardship on them. While we are not unmindful
of plaintiffs’ plight, we have held in the past that such inci-
dental impact on the family as the operation of the immigra-
tion laws may have is not violative of the Constitution. Noel
v. Chapman, supra; Enciso-Cardozo v. INS, supra; ac-
cord, Robles v. INS., 485 F.2d 100 (10th Cir. 1973); Silver-
man v. Rogers, 437 F.2d 102 (1st Cir. 1970), Perdido v.
INS, 420 F.2d 1179 (5th Cir. 1969). The law is at times
painful to some, but it cannot on that basis alone be auto-
matically invalidated as to all.
Consideraiion of the class action issue is unnecessary in
the light of our decision.
/S/ LEONARD P. MOORE
U.S.C.J.
/S/) HENRY BRAMWELL
U.S.D.J.
61
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
X
RAMON MARTIN FIALLO, an infant by his
Mother, CELIA FRANCISCA MICHAEL
RODRIGUEZ, and RAMON AUGUSTO
RAFAEL FIALLO-SONE; CLEOPH''S
RUPERT WARNER and SERGE PATRICK
WARNER, an infant by his father,
CLEOPHUS RUPERT WARNER; TREVOR
ASTON WILSON and EARL ANTONIO
WILSON, Infants by their aunt and next friend
LENA HUDSON, and ARTHUR CECIL
WILSON, on behalf of themselves and all other
persons similarly situated,
Plaintiffs,
—against—
EDWARD H. LEVI, individually and as At-
torney General of the United States;
LEONARD E. CHAPMAN, Jr., Individually
and as Commissioner of the Immigration and
Naturslization Service; MAURICE KILEY,
individually and as District Director of the Im-
migration and Naturalization Service for New
York City; HENRY KISSINGER, individually
and as Secretary of State of the United States;
LEONARD WALENTYNOWICZ, individually
and as Administrator of the Bureau of Security
and Consular Affairs, Department of State;
JULIO ARIAS, individually and as Director of
Visa Office, Bureau of Security and Consular
Affairs, Department of State; CATHERINE
M. HURLEY, individually and as Consul of the
United States of America, Santo Domingo,
Dominican Republic,
Defendants.
cinmsisanitasiniiiairtimmaaiilmatasiasstes oni r
74 C 1083
DIS-
SENTING
OPINION
62
WEINSTEIN, District Judge (Dissenting):
I. Jssues
The constitutionality of the definitions of “parent” and
“child” in the Immigration and Naturalization Laws is chal-
lenged. Section 101 (b) (1) and (2) of the Immigration and
Nationality Act (Act), Title 8 U.S.C. § 1101(b) (1) and (2)
(1970). Unlike mothers and their illegitimate children,
fathers, and their illegitimate children, are excluded from
the definition of “parent” and “child”. They are therefore
ineligible for certain exemptions given citizens’ relatives
who are trying to enter the country: citizen fathers can not
have their migrating illegitimate children exempted from
numerical quotas and labor certification requirements as
their “immediate relatives”; citizen and permanent resident
illegitimate children can not have their migrating fathers
exempted from the labor certification requirement. Insofar
as pertinent, the definitional provision reads:
“(1) The term ‘child’ means an unmarried person under
twenty-one years of age who is—
(A) a legitimate child; or
x kK *
(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;
*x* k *
“(2) The terms ‘parent’, ‘father’, or ‘mother’ mean a par-
ent, father, or mother only where the relationship exists
by reason of any of the circumstances set forth in sub-
division (1) of this subsection.”
8 U.S.C. §1101(b) (1970).
The questions presented are (1) whether a statute mak-
ing it more difficult for a parent and his child—one of whom
is a citizen or permanent resident—to live together in this
country solely because of the sex of the parent and the il-
legitimacy of the child is valid under the Fifth Amendment;
and (2) whether a federal court is without power to declare
such a statute invalid because it is a part of the immigration
63
laws. The answers should be no. The Constitutional road to
equality of the sexes is open to men as well as women. Each
of these plaintiffs is being deprived of a critical part of his
“life ... without due process of law.” U.S. Const. Fifth
Amend.; cf. id. Fourteenth Amend. (“equal protection of
the laws”).
Legal discrimination between men and women or legiti-
mates and illegitimates with no rational basis is no longer
tolerated. Where, as here, statutory invidious discrimina-
tion punishes American citizens by denying them familial
association, one of the most precious attributes of human-
ity, the courts should say what is plain: the statute is un-
constitutional. The wrong to parent and to child is not re-
duced by characterizing the one as a “biological father”,
without regard for his progeny. Such disdain for filial affec-
tion is incompatible with a Constitution embodying the
highest ideals of a civilized nation such as ours.
Il. Facts
Plaintiffs Ramon Fiallo and Ramon Fiallo-Sone, son
and father
Ramon Fiallo is a United States citizen, born in New
York City in 1971. Although his father, Mr. Fiallo-Sone,
was not married to his mother, his father’s name appears on
his birth certificate and his father has nurtured him since
his birth. An American consul has informed Mr. Fiallo-Sone
that he is not eligible for an immigrant visa or permanent
residence status without a labor certificate, and that while
the labor certificate requirement is waived in the case of
fathers of citizen children, the waiver is only available if the
child is legitimate issue. A foreign mother of an illegitimate
citizen would have obtained the waiver.
Plaintiffs Serge Warner and Cleophus Warner, son
and Father
Cleophus Warner, a naturalized citizen, is the unwed
father of Serge Warner, who was born in the French West
Indies ir. 1966. Mr. Warner’s name appears on Serge’s birth
certificate, he registered as Serge’s father shortly after
64
Serge’s birth, and he has acknowledged paternity. Mr.
Warner has supported his son since the child’s birth. In
1969 Serge, in accord with his parents’ and his own desires,
entered the United States to live with his father. Father
and son took steps to obtain an immigrant visa and perma-
nent residence status for Serge in 1972. The Immigration
and Naturalization laws allow citizen parents to bring alien
children into the United States as “immediate relatives”
without regard to the applicable numerical limitation on
immigrants. Mr. Warner’s petition was denied on the
ground that Serge was not his legitimate issue as required
by statute. Had the petition been by a mother who was a
naturalized citizen, or had the child been legitimate, the
petition would have been granted.
Plaintiffs Trevor and Earl Wilson and Arthur Wilson,
sons and father
Trevor and Earl Wilson, who are now permanent resi-
dents of the United States, were born in Jamaica in 1957
and 1959 respectively. Arthur Wilson acknowledges the
boys as his illegitimate sons. He lived with them and sup-
ported tiem until 1968, at which time they moved to New
York City with their mother. From 1968 until 1974 Mr.
Wilson maintained his relationship with his sons by visits
and correspondence. He also continued to support them
financially. After their mother died in 1974, the two boys
asked their father to come to the United States to live with
them. But Mr. Wilson was only able to stay for as long as
an emergency visa allowed. Since his children are illegiti-
mate, Mr. Wilson is unable to settle in the country without
a labor certification. Were a mother in Mr. Wilson’s posi-
tion, or were the children legitimate, the parent would have
been able to enter the country without a labor certification.
Ill. Law
The position of these three families illustrates the severe
effects on American citizens and permanent residents from
the Act’s discrimination between male and female parents
and between legitimate and illegitimate children in its
65
definitions of parent and child. The government does not
contend that the relationship of parent to child does not
exist or that a strong emotional bend between the father
and child is lacking in any of these cases. Its position is that
the statute compels the discrimination.
This statute, defendant insists, is not subject to judicial
review. Characterizing the classification as one of aliens for
the purpose of their exclusion from the country, it contends
that Congressional power to exclude aliens is unfettered.
See, e.g., Chae Chan Ping v. United States, 130 U.S. 581, 9
S.Ct. 623, 32 L.Ed. 1068 (1889); Faustino v. Immigration
and Naturalization Service, 482 F.2d 429, 431 (2d Cir.
1970) (Per Curiam), cert. denied, 401 U.S. 921, 91 S.Ct.
909, 27 L.Ed.2d 824 (1971). .
But this is not a simple case of classifying aliens for the
purpose of preferring some over others for entry. Rather,
Congress has hinged immigrants’ access to this country on
their relationship to citizens and permanent residents. The
question thus becomes whether a Congressional classifica-
tion of citizens and permanent residents which severely
disadvantages them may escape traditional constitutional
scrutiny merely because it is set in alienage legislation.
If the classification were based on race, rather than gen-
der or legitimacy, the court’s power would be no different.
Were Blacks, for example, excluded from the list of those
American citizens who could bring in their relatives without
regard to quotas, no court would let the statute stand. The
Constitution, and in particular, the Fifth Amendment, pro-
tects citizens from abusive or discriminatory government
action. Packaging a discriminatory classification of citizens
in alienage legislation can not insulate it from judicial
scrutiny.
There is ample Supreme Court precedent for intervention
when enforcement of the Act burdens citizens’ constitu-
tional rights. United States v. Brignoni-Ponce, U.S. ,
95 Sup.Ct.2574, L.Ed.2d (1975); Almeida-Sanchez v.
United States, 413 U.S. 266, 273 n.5, 93 S.Ct. 2535, 2539,
37 L.Ed.2d 596 (1973). See also, Burrafato v. United States
Dept. of State, F.2d (2d Cir. 1975) (dicta). The Court has
recognized procedural due process and Fourth Amendment
66
limitations on the government’s exclusion and expulsion of
aliens. See, e.g., Wong Yang Sung v. McGrath, 339 U.S.
33, 49-50, 70 S.Ct. 445, 454, 94 L.Ed. 615 (1950); Kwock
Jan Fat v. White, 253 U.S. 454, 459, 464, 40 S.Ct. 566, 568,
570, 64 L.Ed. 1010 (1920); Kaoru Yamataya v. Fisher, 189
U.S. 86, 100, 23 S.Ct. 611, 614, 47 L.Ed. 721 (1903): Cf.
Lennon v. INS F.2d = (2d Cir. 1975).
When courts have been faced with challenges to other
sections of the Act which classify aliens in terms of their
relationship to citizens, they have not shrunk from tradi-
tional equal protection analysis. See Perdido v. Immigra-
tion and Naturalization Service, 420 F.2d 1179, 1181 (5th
Cir. 1969); Faustino v. Immigration & Naturalization
Service, 302 F.Supp. 212, 215 (S.D.N.Y. 1969), affd, 432
F.2d 429 (2d Cir. 1970), cert. denied, 461 U.S. 921, 91 S.Ct.
909, 27 L.Ed.2d 824 (1971). Cf. Noel v. Chapman, 508 F.2d
1023, 1026-9 (1975).
So blatant a discrimination on the basis of gender and
legitimacy is seldom found in modern statutes. Illegitimacy
as a basis for denial of rights available to legitimates has
been repeatedly struck down as invidious and lacking in ra-
tional basis. See, e.g., Jiminez v. Weinberger, 417 U.S. 628,
632, 94 S.Ct. 2496, 2499, 41 L.Ed.2d 363 (1974); New Jersey
Welfare Rights Organization v. Cahill, 411 U.S. 619, 620-
621, 93 S.Ct. 1700, 1701, 36 L.Ed.2d 543 (1973) (Per
Curiam); Gomez v. Perez, 409 U.S. 535, 538, 93 S.Ct. 872,
875, 35 L.Ed.2d 56 (1973) (Per Curiam); Weber v. Aetna
Casualty and Surety Co., 406 U.S. 164, 175-176, 92 S.Ct.
1400, 1406-1407, 31 L.Ed. 2d 768 (1972); Glona v. Ameri-
can Guaranty and Liability Insurance, 391 U.S. 73, 76, 88
S.Ct. 1515, 1517, 20 L.Ed.2d 441 (1968); Levy v. Louisiana,
391 U.S. 68, 70-72, 88 S.Ct. 1509, 1510-1511, 20 L.Ed. 2d
436 (1968); Tanner v. Weinberger, F.2d (6th Cir. 1975).
Gender classifications have also been treated as invalid.
See, e.g., Turner v. Dept. of Employment Security, U.S.
, Sup.Ct. , L.Ed.2d (1975); Weinberger v.
Wiesenfeld, U.S. , 95 S.Ct. 1225, 43 L.Ed.2d 5145)g
Stanton v. Stanton, U.S. , 95 S.Ct. 1373, 43 L.Ed.2d
688 (1975); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692,
42 L.Ed.2d 690 (1975); Frontiero v. Richardson, 411 U.S.
67
677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Reed v. Reed,
404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Ginsburg,
Gender and the Constitution, 44 U.Cinn. L. Rev. 1 (1975).
The legislative history and the statutory scheme leave no
doubt that the exclusive purpose of Congress was to main-
tain or reunite family units which inelude United States
citizen or permanent resident members. Not a shred of evi-
dence has been produced to support the government’s claim
that the statutory purpose was to prevent spurious pater-
nity claims by unwed natural fathers. As one of the provi-
sion’s co-sponsors put it: “This bil] is praiseworthy in its
fundamental purpose—to reunite families.” 103 Cong. Rec.
15497 (1957) (remarks of Senator Pastore). See also,
H.R.Rep. No. 1199, 85th Cong., 1st Sess. 7-8 (1957); H.R.
Rep. No. 1365, 82d Cong., 2d Sess. 29 (1952); 1957 U.S.
Code Cong. & Ad. News 2020-2021; 103 Cong. Rec. 16719
(1957) (remarks of Senator Kennedy); 103 Cong. Rec. 16307
(1957) (remarks of Representative Rodino); 1 mmigration
Service v. Errico, 385 U.S. 214, 219-220 and in. 9, 87 S.Ct.
473, 477-478, 17 L.Ed.2d 318 (1966); Nation v. Esperdy,
239 F.Supp. 531, 534-535 (S.D.N.Y. 1965). The courts must
distill the general legislative purpose from the legislative
history, particularly where it supports a reasonable non-
sexist interpretation. Weinberger v. Wiesenfeld, U.S. ,
95 S.Ct. 1225, 1233-35, 43 L.Ed.2d 514 (1975). In view of
the Congressional purpose to reunite families, there is no
rational basis for the statutory classification denying the
parent-child status to unwed natural fathers and their il-
legitimate children while automatically granting it to per-
sons in other family relationships.
Even if Congress were motivated by a desire to discrimi-
nate against men and illegitimates in a way harmful to
American citizens, the statute could not stand.
It is firmly established that a natural parent, whether
father or mother, and a child, whether legitimate or not,
have fundamental, constitutionally protected interests in
mutual companionship and a life together.
“The rights to conceive and to raise one’s children have
been deemed ‘essential,” Meyer v. Nebraska, 262 U.S.
390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923), ‘basic
68
civil rights of m.n,’ Skinner v. Oklahoma, 316 U.S. 535,
541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942), and
‘{rjights far more precio’’s . . . than property rights,’ May
v. Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97
L.Ed. 1221 (1953).”
Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212,
31 L.Ed. 2d 551 (1972). See also Weinberger v. Salfi, U.S.
, 95 S.Ct. 2457, L.Ed.2d (1975); Weber v. Aetna
Casualty & Surety Co., 406 U.S. 164, 169, 92 S.Ct. 1400,
1403, 31 L.Ed.2d 768 (1972); Levy v. Louisiana, 391 U.S.
68, 71, 88 S.Ct. 1509, 1511, 20 L.Ed.2d 436 (1968).
“It is no less important for a child to be cared for by its
. .. parent when that parent is male rather than female.
And a father, no less than a mother, has a constitution-
ally protected right to the ‘companionship, care, custody,
and management’ of ‘the children he has sired and raised,
[which] undeniably warrants deference and, absent a
powerful countervailing interest, protection.’ Stanley v.
Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31
L.Ed.2d 551 (1972).”
Weinberger v. Wiesenfeld, U.S. , , 95 S.Ct. 1225,
1235, 43 L.Ed. 2d 514 (i975).
Courts now recognize that unwed fathers, like mothers,
often have strong ties of affection to their illegitimate chil-
dren and desire a continuing relationship with them. See,
e.g., Miller v. Miller, 504 F.2d 1067 (9th Cir. 1974) (Per
Curiam) (statute permitting adoption without notice to
natural father of illegitimate unconstitutional); People ex
rel. Slawek v. Covenant Children’s Home, 52 I1l.2d 20, 284
N.E.2d 291 (1972) (statute precluding father of illegitimate
from asserting right to child and denying custody uncon-
stitutional); Jn Re Mark T., 8 Mich. App. 122, 154 N.W. 2d
27, 35 (Ct. App. 1967) (custody of illegitimate child awarded
to father after mother’s release of child for adoption) and
cases cited 154 N.W.2d at 33 n. 7, 154 N.W.2d at 35 n. 13;
R. v. F., 183 N.J.Super. 396, 273 A.2d 808 (Juv. & Dom.
Rel. Ct. 1971) (denying father and his natural child of right
to see each other deprives them of equal protection); Appli-
cation of Juan R., (N.Y.Fam.Ct.), in N.Y.L.J., Oct. 28,
69
1975, at 1, col. 3 (putative father who has established
paternity may bring action to acquire visiting rights with-
out litigation custodial issues); Stone v. Chip, 68 Misc. 2d
134, 326 N.Y.S.2d 520 (Fam.Ct.1971) (criticizing rule that
mother should have child absent proof she is unfit); Conley
v. Johnson, 24 N.C. App. 122, 210 S.E.2d 88 (Ct. App. 1974)
(court may order visitation rights for father of illegitimate
despite mother’s objection); Hammack v. Wise, 211 S.E.2d
118, 121 (W.Va. 1975) (father awarded custody of illegiti-
mate child); State ex rel. Lewis v. Lutheran Social Services,
59 Wisc. 2d 1, 207 N.W.2d 826 (1973) (father of illegitimate
must be given a hearing on termination of his parental
rights); K. Davidson, R. Ginsburg and H. Kay, “Text Note:
Illegitimacy and Sex Based Discrimination,” Sex Based
Discrimination 309-329 (1974); Note, The Emerging Con-
stitutional Protection of the Putative Father’s Parental
Rights, 70 Mich. L. Rev. 1581 (1972).
State legislatures are systematically revising laws in
order to expand the parental rights of unwed fathers. See
e.g., Fla. Stat. Ann. § 63.062 (1974); Hawaii Rev. Laws §
578-2 (Supp. 1974); S.H. Ill. Ann. Stat. ch. 4, §§ 9.1-1E,
9.1-8, 9.1-12a (1975); Burns Ind. Stat. Ann. § 31-3-1-6
(Supp. 1975); Me. Rev. Stat. Ann. § 532 (Supp. 1975); Mich.
Comp. Laws Ann. § 710.3a (Supp. 1973); Minn. Stat. Ann.
§§ 259.24, 259.26, 259.261 (Supp. 1975); N.D. C.C.A. § 14-
15-20 (1971); R.I. Gen. Laws § 15-7-5 Supp. 1974); Utah
Code Ann. § 78-30-4 (Supp. 1975); Va. Code § 63.1-225
(Supp. 1975); Wash. Rev. Code Ann. §§ 26.32.030,
26.32.085, 26.24.190, 26.28.110 (Supp. 1974); Wisc. Stat.
Ann.ch. 263, §§ 48.02 (ii), 48.42, 48.02, and 48.425 (Supp.
1975).
The clear trend is consonant with national policy recog-
nized by Congress in its adoption of the Equal Rights
Amendment and in its enactment of a series of other stat-
utes designed to overcome outmoded concepts of sex dis-
crimination. See, e.g., Proposed Constitutional Amend-
ment, S.J. Res. 9, 92d Cong., Ist Sess., 118 Cong. Dec.
9568 (1972), H.R. J. Res. 208, 92d Cong., 1st Sess., 117
Cong. Rec. 35782 (1971); Civil Rights Act of 1964, Title
70
VII, 42 USC § 2000(e)-5 (1974), Equal Pay Act of 1963, 29
U.S.C. §206(d) (1965).
The fact that Congress has not yet had the opportunity to
winnow through the enormous federal statutory materials
to carry out its clear present policy gives added force to the
argument that the vestigial remainder of such discrimina-
tion embodied in the Act should be closely reviewed by the
courts.
Social science literature and empirical studies illustrate
why courts, as well as legislatures, no longer allow legisla-
tive exclusion of fathers of illegitimates from statutory ben-
efits. Such discrimination is based on an archaic and over-
broad stereotype of unwed fathers. Most pregnancies reswii
from exclusive long-term relationships between the father
and mother. M. Sauber and E. Rubinstein, Experiences of
the Unwed Motier as a Parent 27 (1965); Herzog, “Some
Notes About Unmarried Fathers,” 1966 Child Welfare 194;
Pope, “Unwed Mother and Their Sex Partners,” 29 J. of
Marriage & the Family, 555, 558 (1967). Many fathers not
only continue the relationship with the mother after the
child’s birth, Sauber and Rubinstein, supra, at 53, but also
demonstrate genuine interest in and concern for their chil-
dren. R. Pannor, F. Massarik, and B. Evans, The Unmar-
ried Father 92 (1971); Chaskel, “Changing Patterns in Serv-
ices for Unmarried Parents,” 49 Social Casework 3, 10
(1968); Wessel, “A Physician Looks at Services for Unmar-
ried Parents,” 49 Social Casework 11, 12 (1968).
Fven those fathers not living with their children assume
many of the functions of fatherhood vital to the well-being
of children, including financial and emotional support. One
statistical study found that between 59% to 83% of these
fathers contribute money for their child’s expenses and ap-
proximately 70% visit their children. Ewer, 1971 Maternal
and Child Health Service, Project H-214-2, Characteristics
of AAPP Unwed Fathers—A Descriptive Study 2, Table 33
(unpublished, Div. of Research, Maternal and Child Health
Service, HSMHA).
An even more striking indication of the strength of the
fathers’ parental commitment is that an increasing number
of illegitimate children are living with their fathers. In 1970
71
13.9% of the children under eighteen living with single par-
ents, that is, parents who have never been married, lived
with their single fathers, as compared to 9.2% in 1960. U.S.
Bur. of the Census, 1 U.S. Census of the Population 1970,
Characteristics of the Population, Pt. 1, U.S. Summary—
Sec. 2, Table 206 (1973); id., U.S. Census of the Population
1960, Table 185 (1963).
The three plaintiff families are good examples of the va-
riety of situations in which strong familial bonds tie il-
legitimate children to their fathers. Ramon Fiallo’s parents,
although unmarried, have functioned as a family since the
child’s birth. Cleophus Warner and the Wilson boys have
been supported financially by their fathers since birth.
They now depend upon their fathers to be their sole parents
because of a mother’s choice to live without the child in one
case and the mother’s death in the other.
The challenged provisions, by excluding only fathers and
their illegitimate children from statutory benefits, are
based upon an irrebuttable presumption that fathers do not
have close family ties with their illegitimate offspring, a
presumption belied by the statistical evidence, sociological
evaluation of family life, and the facts in the three cases
before us. Such a presumption without basis in fact is in-
valid. See, e.g., Cleveland Bd. of Ed. v. LaFleur, 414 U.S.
632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); United States Dept.
of Agriculture v. Murry, 413 U.S. 508, 93 S.Ct. 2832, 37
L.Ed.2d 767 (1973); Viandis v. Kline, 412 U.S. 441, 93
S.Ct. 2230, 37 L.Ed.2d 63 (1973). Cf. Note, The Irrebutta-
ble Presumption Doctrine in the Supreme Court, 87 Harv.
L. Rev. 1534 (1974).
Whatever assumed basis there may once have been for
such sexist presumptions no longer exists. Rationality must
be viewed in the light ef current knowledge. See Turner v.
United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610
(1970).
Even if we accepted the government’s contention that the
natural fathers of illegitimate children were singled out by
Congress to prevent spurious claims, the statutory scheme
is not rationally related to that end. See Jiminez v. Wein-
berger, 417 U.S. 628, 634-6, 94 S.Ct.2496, 2500-01, 41
72
L.Ed.2d 363 (1974), where the Court invalidated provisions
of the Social Security Act denying children’s insurance ben-
efits to a subclass of illegitimate children because the
structure of the statute was not reasonably related to the
purported purpose, prevention of spurious claims.
Paternity or maternity must be claimed and proven in
cases involving legitimate children, legitimated children,
step-children and illegitimate children to the satisfaction of
immigration and consular officials. The burden of proof of
any familial relationship is on the United States citizen or
permanent resident and the alien relative. Immigration au-
thorities may require birth certificates, marriage cer-
tificates, baptismal certificates, school records, census rec-
ords, affidavits, letters, photographs, remittances, proof of
custody, proof of support, blood test, personal testimony,
and other evidence. 8 C.F.R. § 204.2 (1975). The potential
for spurious claims is as great for those included in the
statutes’ definitions of parent and child as for illegitimate
children and their fathers. Women claiming to be mothers
of illegitimate children and men claiming to be fathers of
legitimated, legitimate, or illegitimate children in a step-
child situation, and their respective children, would have as
much difficulty or ease in presenting fraudulent proof as
would a man claiming to be the father of an illegitimate
child and his child. P
And yet, quota restrictions are waived in the case of a
step-child or legitimated child if paternity is proven, but a
conclusive statutory presumption denies any opportunity of
proof in the case of an illegitimate child. A conclusive pre-
sumption supposedly established to prevent spurious claims
can not be upheld when the potential for fraud is similar for
the excluded group and for groups receiving the statutory
benefits. Jiminez v. Weinberger, 417 U.S. 628, 636-637, 94
S.Ct. 2496, 2501-02, 41 L.Ed. 363 (1974). Cf. U.S. Dept. of
Agriculture v. iJoreno, 413 U.S. 528, 93 S.Ct.2821, 37
L.Ed.2d 782 (1973); Viandis v. Kline, 412 U.S. 441, 453-4,
93 S.Ct. 2230, 2237, 37 L.Ed.2d 63 (1973); Gomez v. Perez,
409 U.S. 535, 538, 93 S.Ct. 872, 875, 35 L.Ed.2d 56 (1973);
Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d
551 (1972); Glona v. American Guaranty & Liability In-
73
surance Co., 391 U.S. 73, 76, 88 S.Ct. 1515, 1517, 20
L.Ed.2d 441 (1968). This rigid presumption must be re-
placed by “more individualized means” of determining the
family relationship. Turner v. Dept. of Employment Secu-
rity, US. , , S.Ct. , L.Ed.2d (1975).
Practically speaking, the government’s contention that
the restrictive definition of parent is necessary to prevent
spurious claims is nothing more than a plea on behalf of
administrative convenience. But it has been clear for some
time now that a scheme built upon administrative conveni-
ence cannot stand when invidious discrimination results.
See, e.g., Frontiero v. Richardson, 411 U.S. 677, 690, 93
S.Ct. 1764, 1772, 36 L.Ed.2d 583 (1973).
IV. Conclusion
Plaintiffs’ request for summary judgment in their favor
should be granted.
Dated: Brooklyn, New York
November 28, 1975.
/S/ JACK B. WEINSTEIN
uu. & D. J.
74
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
RAMON MARTIN FIALLO, an infant by his
Mother, CELIA FRANCISCA MICHAEL
RODRIGUEZ, and RAMON AUGUSTO
RAFAEL FIALLO-SONE; CLEOPHUS
RUPERT WARNER and SERGE PATRICK
WARNER, an infant by his father,
CLEOPHUS RUPERT WARNER: TREVOR
ASTON WILSON and EARL ANTONIO
WILSON, on behalf of themselves and all other
persons similarly situated,
Plaintiffs,
—against—
EDWARD H. LEVI, individually and as At-
torney General of the United States;
LEONARD E. CHAPMAN, JR., individually
and as Commissioner of the Immigration and
Naturalization Service; MAURICE KILEY,
individually and as District Director of the Im-
migration and Naturalization Service for New
York City; HENRY KISSINGER, individually
and as Secretary of State of the United States;
LEONARD WALENTYNOWICZ, individually
and as Administrator of the Bureau of Security
and Consular Affairs, Department of State,
JULIO ARIAS, individually and as Director of
Visa Office, Bureau of Security and Consular
Affairs, Department of State; CATHERINE
M. HURLEY, individually and as Consul of the
United States of America, Santo Domingo,
Dominican Republic.
Defendants.
eee x
75
This cause having come to be heard before a three-judge
court, the Honorable Leonard P. Moore, United States Cir-
cuit Judge, the Honorable Jack B. Weinstein, United States
District Judge, and the Honorable Henry Bramwell, United
States District Judge, presiding, and an opinion and order
of the Honorable Leonard P. Moore, United States Circuit
Judge, and the Honorable Henry Bramwell, United States
District Judge, having been filed on November 28, 1975,
denying the plaintiffs’ motions for certification as a class
action, summary judgment, and a permanent injunction,
and granting judgment for the defendant, and a dissenting
opinion of the Honorable Jack B. Weinstein, United States
District Judge, having been filed on November 28, 1975, it
is
ORDERED and ADJUDGED that the plaintiffs take
nothing of the defendants and that the action is dimisssed.
Dated: Brooklyn, New York
December 1, 1975
/S/ LEWIs ORGEL
Clerk
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
(Title omitted in printing)
NOTICE OF APPEAL TO THE SUPREME COURT OF
THE UNITED STATES
Notice is hereby given that RAMON MARTIN FIALLO,
an infant by his mother, CELIA FRANCISCA MICHAEL
RODRIGUEZ, RAMON AUGUSTO RAFAEL FIALLO-
SONE, CLEOPHUS RUPERT WARNER, SERGE PAT-
RICK WARNER, an infant by his father CLEOPHUS
RUPERT WARNER, TREVOR ASTON WILSON and
EARL ANTONIO WILSON, infants by their Aunt LENA
76
HUDSON and ARTHUR CECIL WILSON, on behalf of
themselves and all other persons similarly situated, the
plaintiff-appellants in the above captioned action, hereby
appeal to the Supreme Court of the United States from
each and every part of the final order and judgment of the
three judge court in the Eastern District of New York en-
tered on December 1, 1975 denying plaintiffs motions for
summary judgment, permanent injunction and class action
certification, granting judgment for defendants and dismis-
sing the action.
This appeal is taken pursuant to 28 U.S.C. $1253.
DATED: NEW YORK, NEW YORK
December 31, i975.
KALMAN FINKEL
Attorney-in-Charge
The Legal Aid Society
Civil Division
/S/ JANET M. CALVO
MorTON B. DICKER
JANET M. CALVO
The Legal Aid Society
11 Park Place
New York, New York 10011
JOHN E. KIRKLIN
Director of Litigation
ANITA FISHER BARRETT
The Legal Aid Society
Civil Appeals Bureau
267 West 17th Street
New York, New York 10011
Attorneys for Plaintiff-Appellants
(Affidavit of Service omitted in printing)
77
SUPREME COURT OF THE UNITED STATES
No. 75-6297
Ramon Martin Fiallo, etc., et al.,
Appellants,
v.
Edward H. Levi, Individually and as
Attorney General of the United
States, et al.
APPEAL from the United States District Court for the
Eastern District of New York.
The statement of jurisdiction in this case having been
submitted and considered by the Court, probable jurisdic-
tion is noted. The case is set for oral argument in tandem
with No. 75-5952.
June 7, 1976
78
SUPREME COURT OF THE UNITED STATES
No. 75-6297
Ramon Martin Fiallo, etc., et al.,
Appellants,
v.
Edward H. Levi, Individually and as
Attorney General of the United
States, et al.
ON CONSIDERATION of the motion of the appellants
for leave to proceed herein in forma pauperis,
IT IS ORDERED by this Court that the said motion be,
and the same is hereby, granted.
June 7, 1976
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