0300-433026
Decided by the Special Inquiry Officer February 13, 1953 Decided by the Board April 16, 1953 Decided by the Attorney General June 2, 1953
Stepchild — Section 101(b)(1)(B) of the Immigration and Nationality Act.
A child born out of wedlock prior to the marriage of a woman to a United States citizen (who is not the father of the child) is not a stepchild within the meaning of section 101(b)(1)(B) of the Immigration and Nationality Act.
EXCLUDABLE: Section 211(a)(3), Immigration and Nationality Act — Not nonquota immigrant as specified in immigration visa.
BEFORE THE SPECIAL INQUIRY OFFICER
(February 13, 1953)
Discussion: This record relates to a 20-year-old female, married, a native and citizen of Germany and her 2 1/2-year-old child, male, a native and citizen of Germany. They both last arrived in the United States at the port of New York on the Sabena Air Lines, Plane No. 549 seeking permanent admission to the United States. The mother has been married only once, on August 8, 1952, to a United States citizen. She is properly in possession of a nonquota visa classification M-1, as the wife of a United States citizen. The child is an illegitimate child born in Germany on June 16, 1950. The female applicant's present husband is not the father of that child. He was issued a visa bearing the classification nonquota M-2 on the basis of being a stepchild of an American citizen.
The question to be determined is whether or not the child is properly classifiable as a stepchild within the meaning of the Immigration and Nationality Act. On its face, section 101(b)(1)(B), would seem to include the applicant as it is under the age of 18 and also under the age of 18 at the time the status of stepchild occurred, which was in August 1952. The major problem is whether or not Congress meant by means of this statute to include taking the illegitimate children of the spouses of American citizens. The term "child" which has been defined, makes it plain that a United States citizen could not bring his own child to the United States unless it was legitimate or legitimated. If we were to give a literal view of the definition of stepchild and admit this applicant, he would be obtaining a greater benefit than could be obtained by the illegitimate child of a citizen. I do not believe that Congress intended this result and that it is implicit in the definition of stepchild the contention that it was for a legitimate child to be accorded a nonquota status.
As the male applicant can only be admitted to the United States as the stepchild of a United States citizen in possession of a nonquota visa and as it has been determined that he is not a stepchild within the meaning of the law, he is a quota immigrant not in possession of a valid unexpired immigrant visa. The applicant's mother was informed by the American consulate abroad that under the new law now in effect her child could be issued a nonquota visa and, of course, she did not know and could not have ascertained by the exercise of reasonable diligence prior to her departure from abroad, that the visa issued to her son was not an appropriate one.
In view of these circumstances it is appropriate that the discretion contained in section 211(c) of the Immigration and Nationality Act be exercised in favor of the male applicant in that he be admitted to the United States as a quota immigrant.
Applicants are both in possession of valid German passports. In view of the fact that the male applicant is being admitted to the United States within discretion contained in 211(c) and (d) of the Immigration and Nationality Act, it is not necessary or appropriate to exclude his mother under section 212(a)(30) as accompanying an inadmissible alien.
Findings of Fact: Upon the basis of all of the foregoing, I make the following findings of fact:
(1) That both applicants are aliens, natives and citizens of Germany;
(2) That both applicants last arrived in the United States at the port of New York on Sabena Air Lines, plane No. 549 on February 12, 1953;
(3) That both applicants are seeking admission to the United States for permanent residence;
(4) That the female applicant was married to a United States citizen in Germany in August 1952 and is now the wife of a United States citizen;
(5) That the male applicant is an illegitimate child of the female applicant, born in Germany in 1950;
(6) That the male applicant not being a legitimate child is not a stepchild within the meaning of section 101(b)(1)(B) of the Immigration and Nationality Act;
(7) That the applicants are presenting for admission to the United States only visas issued to them as the wife and stepchild of a United States citizen and are in possession of no other immigrant visas;
(8) That both applicants are in possession of a German passport valid until February 20, 1954.Conclusions of Law: Upon the basis of the foregoing findings of fact, I make the following conclusions of law:
(1) That under section 101(a)(27)(A) the female applicant, G.M., is admissible to the United States, as the spouse of a citizen of the United States.
(2) That under section 211(a)(3) of the Immigration and Nationality Act, the male applicant, D.M., is inadmissible as he is a quota and not a nonquota immigrant as specified in his immigrant visa.Order: It is ordered that the female applicant be admitted to the United States for permanent residence.
It is further ordered that pursuant to the provisions of section 211(c) and (d) of the Immigration and Nationality Act, the Department of State be notified to reduce the quota of Germany during the current fiscal year if a quota number is available, otherwise during the next following fiscal year and that the male applicant be admitted for permanent residence.
(April 16, 1953)
Discussion: The case comes forward pursuant to certification by the special inquiry officer.
The record relates to a male child, a native and citizen of Germany, born June 16, 1950, who was accompanied by his mother, 20 years old, also a native and citizen of Germany. Both arrived at the port of New York on February 12, 1953, by plane and seek admission for permanent residence. The mother was in possession of a nonquota immigration visa bearing classification M-1 as the wife of a United States citizen and was found to be admissible by the special inquiry officer. The child was in possession of a visa bearing the nonquota classification M-2 as the stepchild of an American citizen (22 C.F.R. 42.3(b)). The special inquiry officer has found that the child is not entitled to the classification of a nonquota visa as the stepchild of an American citizen and the specific issue presented is whether the illegitimate child of an alien mother who marries a citizen of the United States who is not the father of the child subsequent to the child's birth may properly be regarded as a stepchild within the meaning of section 101(b)(1)(B) of the Immigration and Nationality Act.
The applicant was born out of wedlock in Nuremberg, Germany, on June 16, 1950. His mother married a United States citizen around August 8, 1952. Section 101(b)(1)(B) defines the term "child" as used in titles I and II of that act as follows:
A stepchild, provided the child had not reached the age of 18 years at the time the marriage creating the status of the stepchild occurred;
It is apparent that the applicant in the instant case, who is now about 2 1/2 years of age, is within the proviso as to his age at the time of the marriage creating the status of said child. The special inquiry officer however finds that this definition was designed only to apply to the legitimate child; that we should not give a literal view to this definition of stepchild, since by so doing, this stepchild would be obtaining a greater benefit than could be obtained by the illegitimate child of a citizen. While not expressly stated by the special inquiry officer, it is apparent that he means to confine the word "stepchild" to the case of a child of a spouse by a former marriage, and that the illegitimate child of the parent would not become the stepchild of the other party of the marriage contract. We do not believe that this interpretation carries out the true intendment of Congress.
At the outset it may be stated that the terms "stepfather" and "stepchild" are not free from doubt as to their precise meaning. Legal dictionaries define these terms as follows:
Bouvier's Law Dictionary, Unabridged 1914; Black's Law Dictionary, 3d Edition 1933.
Stepdaughter: The daughter of one's wife by a former husband, or one's husband by a former wife.
Stepfather: The husband of one's mother by virtue of her marriage subsequent to that of which the person spoken of is the offspring.
Stepmother: The wife of one's father by virtue of a marriage subsequent to that of which the person spoken of is the offspring.
Stepson: The son of one's wife by a former husband, or of one's husband by a former wife.
Webster's New International Dictionary defines the term "stepchild" as "a child of one's wife or husband by a former marriage." Corpus Juris defines the term "stepfather" as a word in general use, which as generally understood means the husband of one's mother by a subsequent marriage; the husband of one's mother who is not one's father.
This definition appears to have been quoted with approval in Brotherhood of Locomotive Firemen and Enginemen v. Hogan, 5 F.Supp. 598 (D.C.Minn. 1934). The term "step" was defined as a prefix denoting a relationship through marriage only of a parent, and not by blood. The holding of the case however was merely that the relationship of stepchild was one of affinity rather than of con-sanguinity and was terminated by divorce of the stepfather from the mother.
60 Corpus Juris 32.
Court cases construing the term "stepchild" as to whether it includes the illegitimate child of a spouse by a former marriage are relatively few and are found largely in decisions of the state courts. The illegitimate children of a spouse born prior to the subsequent marriage were held to be included within the term "stepchildren" in cases decided in the State courts of Minnesota, West Virginia, Texas, New York, and Georgia. Contrary decisions were reached in cases arising in Indiana, New Jersey, and Louisiana.
Lunceford v. Fegles Construction Co., 239 N.W. 673 (Minn.); Simpson v. State Compensation Co., 174 S.E. 329 (W.Va.); Hernandez v. Supreme Forest Woodmen Circle, 80 S.W.2d 346 (Tex.); Larsen v. Harris Structural Steel, 243 N.Y.S. 654 (N.Y.); Jones v. Jones, 292 N.Y.S. 221 (N.Y.); Lipham v. State, 53 S.E. 817 (Ga.).
Citizens' St. R. Co. v. Cooper, 53 N.E. 1092 (Ind.); Thornburg v. American Strawboard Co., 40 N.E. 1062 (Ind.); Sharp v. Borough of Vineland, 190 A. 44 (N.J.); Dangerfield v. Indemnity Ins. Co., 19 So.2d 598 (La.). In the last case, the compensation law involved applied by its terms to legitimate stepchildren.
In a Federal case, Miller v. United States, involving a criminal prosecution for kidnaping, the accused attempted to bring himself within an exception in the law relating to a minor child adopted "by a parent thereof." The kidnaped person was the illegitimate daughter of the wife of the accused; had lived in his household only 4 months; was raised thereafter by a grandmother; was 18 years old and married at the time of the kidnaping. The lower court overruled the defendant's contention that he was a "parent" within the purview of the kidnaping statute concluding that the appellant was not the girl's stepfather; that the term "stepfather" generally means the husband of one's mother by a subsequent marriage; or the relationship of stepparent and stepchild existing between a husband or wife and the child of his wife or her husband as the case may be by a former marriage, citing 60 Corpus Juris 32 and 46 Corpus Juris 1337. But the court also stated that if the adopted girl had been a member of the appellant's household cared for and nurtured by him and in his custody and control, the relationship of stepfather and stepchild would have existed in the generally accepted usage of such terms.
123 F.(2d) 715 (C.C.A. 8, 1941), 124 F.(2d) 849, 126 F.(2d) 462; reversed on other grounds 317 U.S. 192, rehearing denied, 317 U.S. 713.
In the case of Thornburg v. American Strawboard Co. it is true that the court stated that as generally understood, the husband of one's mother by a subsequent marriage is a stepfather; strictly speaking, therefore, a man who marries the mother of a bastard child does not become the stepfather of such a child. However, there was no necessity for the court to so rule, inasmuch as the holding in that particular case was that a statutory right to sue given to a father, being in derogation of the common law, must be strictly construed, and that the term "father" does not include a "stepfather." Indeed, in the case of Lipham v. State, the discussion in Thornburg v. American Strawboard Co. regarding the relationship between the mother's illegitimate child and her husband was criticized as obiter dictum. In the Lipham case the accused was charged with incest with a stepdaughter and the term was held to include the illegitimate daughter of the accused's wife. The language used by the court in this case is of interest:
40 N.E. 1062 (Ind. 1895).
53 S.E. 817 (Ga. 1906).
A penal statute is subject to careful scrutiny and strict interpretation, but this rule does not impose upon this court a pedantic construction of words and phrases. The framers of statutes are men of affairs, rather than rhetoricians, balancing the various shades of meaning of language employed, and words are to be given their ordinary intendment and effect.
In the case of Lunceford v. Fegles Construction Co., a case involving an illegitimate child whose mother had married the deceased employee, who had lived together with the decedent and had been supported by him, the court held that the claimant was a stepchild within the meaning of the Minnesota Workman's Compensation Act. The court held that the term "stepchild" by general definition was the child by a former marriage of either the husband or wife, but that it was not a universal definition. The court stated that the Compensation Act is to be construed liberally and concluded that the decedent's relation to the claimant arose from and depended upon his marriage to her mother and not at all upon any other ancestral fact.
239 N.W. 673 (Minn. 1931).
Although the legislative history of the Immigration and Nationality Act fails to throw any direct light upon the specific question under consideration, Congressional reports are not without interest on this point. Thus, in the report of the Committee on the Judiciary pursuant to Senate Resolution 137, the following language appears:
S.Rept. 1515, 81st Cong., 2d sess., p. 468.
It was suggested that any new immigration law should provide a better method of keeping the families of immigrants together by affording a more liberal treatment of children. It was pointed out that where an American citizen marries an alien widow with children, the wife is entitled to non-quota status but the children must await their turn under a separate preference class.
In the report to accompany H.R. 5678 it was stated that H.R. 5678 implements the underlying intentions of our immigration laws regarding the preservation of the family unit. Section 202(a) of the act authorizes various quota charges outside the usual rules for the obvious purpose of avoiding separation of family members so far as possible. In a number of other instances, the statutory language makes it clear that the underlying intent of the legislation was to preserve the family unit upon immigration to the United States.
H.Rept. 1365; 82d Cong., 2d sess., p. 29.
Sympathetic and humane considerations dictate an interpretation which would not separate the child, whether legitimate or illegitimate, from its alien parent particularly in those cases where the citizen parent has executed a petition for the issuance of a nonquota visa to such child and has evidenced an intent to regard the illegitimate stepchild of his spouse as a part of his own family and to raise that child as a part of the family unit. As has already been demonstrated, there is ample judicial authority to support a construction which would include the illegitimate child of the spouse as the stepchild of the person who has married the parent of that child. In view of the clearly expressed legislative intention to keep together the family unit wherever possible, it would appear to be a desirable result, based upon legal and equitable considerations, to adopt a liberal construction. No harm could possibly result from such a construction, and the consequences would fulfill the humane considerations involved in keeping intact the family unit.
There is no showing that the immigration authorities were not in possession of all the facts when they approved the petition for the issuance of an immigration visa to this alien and when the consular officer authorized the issuance of a nonquota visa under section 101(a)(27) of the Immigration and Nationality Act. Upon appeal, for the reasons already stated, we see no reason to reach a contrary conclusion. We therefore hold that the applicant is properly in possession of a nonquota immigration visa as the stepchild of an American citizen and that he is entitled to enter the United States.
Order: It is ordered that the appeal be and the same is hereby sustained.
In accordance with the provisions of section 6.1(h) of title 8, Code of Federal Regulations, the case is certified to the Attorney General for review of the Board's decision.
(June 2, 1953)
The decision and order of the Board of Immigration Appeals dated April 16, 1953, is hereby reversed and the decision of the special inquiry officer herein is reinstated since I find that in accordance with the reasons set out in the opinion of the General Counsel a child born out of wedlock prior to the marriage of a woman to a United States citizen is not a stepchild within the meaning of section 101(b)(1)(B) of the Immigration and Nationality Act. In view of the doubt that is raised concerning language such as is used in the act in some of the cases referred to in the decision of the Board of Immigration Appeals, this matter should be specifically called to the attention of Congress for its consideration as to the desirability of clarifying legislation.