VP 23-I-3008
Decided by Board March 14, 1958
Stepchild — Section 101 (b) (1) of 1952 act, as amended by Act of September 11, 1957 — Illegitimate child obtains no benefit or status through relationship to natural father.
(1) The amendment to section 101 (b) (1) of the Immigration and Nationality Act by the Act of September 11, 1957, was intended to clarify the law so that a child born out of wedlock in relation to its mother could be included in the term "stepchild" and thereby enjoy the same immigration status as other stepchildren
(2) The amendment does not call for any change in the prevailing administrative view that a child born out of wedlock derives no benefit, status, or privilege under the immigration laws in relation to its natural father.
(3) Hence, in the instant case, the beneficiaries, being illegitimate children of the father and despite the marriage of the father to a United States citizen, are not the latter's stepchildren and cannot qualify for nonquota status.
BEFORE THE BOARD
Discussion: This case comes forward on appeal from the order of the District Director, Hartford District, dated December 10, 1957, denying the visa petition on the ground that the beneficiaries were born illegitimately; illegitimate children can derive no benefit through the father under the immigration and naturalization laws; and that the petitioner's marriage to the father of these children does not confer a status of stepchildren on the beneficiaries.
The petitioner, a native of Jamaica, British West Indies, and a naturalized citizen of the United States, 39 years old, female, seeks nonquota status on behalf of the beneficiaries as her stepchildren. The beneficiaries were born in Jamaica, British West Indies, on December 14, 1939, and December 6, 1940, respectively, out of wedlock and subsequent to their birth were given the surname of the putative father who married the petitioner on December 12, 1953, at New York, New York. The petitioner is not the natural mother of the beneficiaries. There is no showing that the beneficiaries have ever been legitimated.
Under the provisions of section 101 (a) (27) (A) of the Immigration and Nationality Act, 8 U.S.C. 1101 (a) (27) (A), the child of a citizen of the United States is a nonquota immigrant. By definition in section 101 (b) (1), 8 U.S.C. 1101 (b) (1), as amended by the Act of September 11, 1957 ( 71 Stat. 639), the term "child" means an unmarried person under 21 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 legitimating 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 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 accorded any right, privilege, or status under this Act.
Under section 101 (b) (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 subsection (1) above. The italicized portion of subparagraph (B), and subparagraphs (D) and (E), referred to above, were added to the Immigration and Nationality Act by the amendment of September 11, 1957. Counsel argues that the amended definition of stepchild brings within its scope the instant beneficiaries who were born out of wedlock and whose natural father married a United States citizen before they reach the age of 18 years. He refers to Senate Report No. 1057 (85th Congress, 1st Session), to accompany S. 2792 which was later enacted into law on September 11, 1957, which on page 3 states that the purpose of the bill is to clarify the definition of the term "stepchild" to make certain that it includes a child born out of wedlock.
If this were all, counsel's argument would perhaps be well taken. However, it is believed that subparagraph (B) of section 101 (b) (1) relating to stepchild must be read in conjunction with subparagraph (D) relating to 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. The result would be that the phrase "a child, whether or not born out of wedlock" is recognized as a child for immigration purposes only where the mother of the illegitimate child marries a citizen (or permanent resident alien) and the husband of the mother then petitions for the illegitimate child of his wife as his stepchild.
This conclusion is fortified by further reference to Senate Report No. 1057 which states on page 4:
Section 1 of the bill, as amended, would amend the definition of the term "child" as used in titles I and II of the Immigration and Nationality Act, for the purpose of alleviating certain hardships which have arisen as a result of an administrative interpretation that a child born out of wedlock to a woman who subsequently marries a man not the father of the child, is not included within the term "stepchild". The proposed amendment would clarify the law in such manner as to make it clear that a child born out of wedlock in relation to its mother may be included in the term "stepchild" and thereby enjoy the same immigration status as other stepchildren. The committee believes that this would accomplish the original intent of the section. [Emphasis supplied.]
The administrative interpretation referred to is undoubtedly Matter of M----, 0300-433026, 5 IN Dec. 120, decided by the Attorney General June 2, 1953.
The committee report then went on to state that section 2 would further redefine the term "child" as used in titles I and II of the Immigration and Nationality Act to clarify the law so that the illegitimate child would in relation to the mother enjoy the same status under the immigration laws as a legitimate child to remove any doubt of the intent of the original drafters of the act.
This language is in obvious reference to Matter of A----, VP 6-2026, 5 IN Dec. 272, decided by the Attorney General February 2, 1954, which held that the illegitimate child of a United States citizen mother was not eligible for nonquota status.
Viewing the amended definition of stepchild against the legislative history of the amendment as set forth in the above Senate report, it is apparent that the amendment sought to clarify the law so that a child born out of wedlock, in relation to its mother, might be included in the term "stepchild" and thereby enjoy the same immigration status as other stepchildren. Nowhere is there the slightest indication that it was intended to change the accepted administrative view that a child born out of wedlock derives no benefit, status or privilege in relation to its natural father. In the instant case, the beneficiaries being illegitimate children of the father, they can obtain no status as stepchildren by virtue of the relationship to the father, despite the marriage of the father to a citizen of the United States. Accordingly, the appeal will be dismissed.
Order: It is ordered that the appeal be and the same is dismissed.