VP 6-2026
Decided by the Board June 4, 1953 Commissioner's Motion June 8, 1953 Motion denied by the Board August 13, 1953 Decided by the Attorney General February 2, 1954
Child — Section 101 (b) (1) of the Immigration and Nationality Act — Illegitimate child of United States citizen mother not eligible for nonquota status.
A child conceived and born out of wedlock, fathered by a man other than the man the petitioner subsequently married, and never legitimated by its natural father, is not a child within the meaning of section 101 (b) (1) of the Immigration and Nationality Act and is not eligible for nonquota status under section 101 (a) (27) (A) of that act.
APPLICATION:
Petition for issuance of an immigrant visa under section 205 of the Immigration and Nationality Act.
BEFORE THE BOARD
(June 4, 1953)
Discussion: The case comes forward on appeal from the order dated March 13, 1953, of the district director at Miami denying the visa petition on the ground that the beneficiary is not entitled to a nonquota immigration status under the Immigration and Nationality Act.
The petitioner is a citizen by virtue of her naturalization in the United States District Court at St. Louis, Mo., on February 2, 1951. She has been married twice, her first marriage having been terminated on July 25, 1944. She married her present husband, a citizen and a lieutenant in the United States Army, on August 7, 1948, at Harrisburg, Pa. The beneficiary was born on July 29, 1945, at Berlin, Germany. The beneficiary is admittedly not the issue of either the first or second marriage, and it is conceded that she was born out of wedlock.
The petition for the issuance of an immigrant visa is filed under the provisions of section 205 of the Immigration and Nationality Act for a nonquota immigrant visa based upon the claim that the beneficiary is a nonquota immigrant as the child of a citizen of the United States as provided in section 101 (a) (27) (A). The term "child" as used in section 101 (a) (27) (A) is defined in section 101 (b) (1) as an unmarried person under 21 years of age who is —
(A) A legitimate child; or
(B) A stepchild, provided the child had not reached the age of 18 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 18 years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation.
In view of this definition the district director has found that inasmuch as the beneficiary was not legitimated by her natural father she does not come within the term "child" within the purview of the Immigration and Nationality Act and is not entitled to nonquota status under section 101 (a) (27) (A). While a literal reading of the section referred to would appear to lend some support to this theory, upon further reflection we are not entirely satisfied with the position taken by the district director. It is to be remembered that the visa petition in this case is being filed by the citizen mother of the illegitimate child and there is no claim being put forth that this child has ever been legitimated by the natural father. The issue presented is whether the circumstances of this case come within the language of section 101 (b) (1) relating to a legitimate child or to a legitimated child.
For a better understanding of the present act, it is well to look at the prior law. Section 4 (a) of the Immigration Act of 1924 defined a nonquota immigrant as an immigrant who is the unmarried child under 21 years of age of a citizen of the United States. The term "child" was defined merely in a negative manner by section 23 (a) of the Immigration Act of 1924 as not to include a child or parent by adoption unless the adoption took place before January 1, 1924. Section 9 of the Immigration Act of 1924 contained a visa petition procedure similar to the procedure set forth in section 205 of the Immigration and Nationality Act. Pertinent regulations of the Department of State relating to nonquota immigrants, 22 C.F.R. 61.209 (41.209), provided that a petition for nonquota status for an illegitimate child who is an alien may be filed with the Department of Justice when the petition is executed by the mother if she is a citizen of the United States.
The report of the Committee on the Judiciary pursuant to Senate Resolution 137 (80th Cong., 1st sess., as amended, after setting forth the practice and procedure and applicable provisions of the prior law, commented that the Immigration Act of 1924 contains may humane provisions designed to avoid or alleviate hardships in the treatment of aliens admissible under the law, citing various provisions of the law based on the concept that family unity is desirable and that it is to the advantage of everyone to prevent, as far as practicable, family separations in the application of immigration restrictions. The committee received favorably the suggestion 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. While the committee refused to recommend that the term "child" should include a child adopted in the United States before the child reaches the age of 16 years and in the legal custody of the adopting parents, it did recommend that the term "child" should also include a stepchild if the child was not more than 16 years of age at the time the marriage creating the status occurred. Regarding legitimated children the committee recommended that such children should also be included if legitimated under the law of either the child or father's residence or domicile if the legitimation took place before the child reached the age of 16 and while under legal custody of the legitimating parent. The law as finally enacted extended the age limit to 18 years instead of 16 years.
S. Rept. 1515, 81st Cong., 2d sess.
Idem, p. 464.
Idem, p. 468.
In a similar vein, the report to accompany H.R. 5678 which became the Immigration and Nationality Act stated that the new act implements the underlying intention of our immigration laws regarding the preservation of the family unit. In a number of 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.R. 1365, 82d Cong., 3d sess., p. 39.
Public Law 414, 82d Cong., 2d sess.; 66 Stat. 163.
Insofar as the unmarried mother is concerned, it cannot be questioned that her illegitimate children are a part of her family. It has been indicated that the petitioner's husband in the instant case has adopted the beneficiary by proceedings in the courts of Pennsylvania, although this has no bearing on the particular points in issue. Despite the language as to legitimation and legitimate children contained in section 101 (b) (1) of the Immigration and Nationality Act, section 309 (c) of the act confers citizenship status upon an illegitimate child born outside the United States if the mother had United States nationality at the time of such child's birth and if the mother had previously been physically present in the United States for a continuous period of 1 year, thus continuing the provisions contained in the second paragraph of section 205 of the Nationality Act of 1940.
There is nothing in the legislative history of the new act or in any of the reports of an intent to eliminate the benefits conferred upon illegitimate children under previous law, regulations, or administrative decisions. On the contrary, the plain intent of Congress was to preserve, in many instances, the family unit in connection with immigration. It is believed that Congress did not have in mind the relationship of an illegitimate child to its mother when defining child as a legitimate child, and this conclusion is fortified by the fact that section 101 (b) (1) (C) refers to legitimation by the law of the father's residence or domicile, and no reference being made to the mother. This omission would appear to make it plain that Congress had in mind when referring to legitimacy and a legitimating proceeding those cases in which a claim of nonquota status was being put forth by an alien child of a citizen father. It would scarcely be consistent for Congress to confer citizenship upon an illegitimate child of a citizen mother under the provisions of section 309 (c) of the Immigration and Nationality Act and at the same time deny nonquota status to the illegitimate child of a subsequently naturalized citizen mother. Such a result has no foundation either in reason or logic and would appear to run directly in the face of the humane and liberal provisions enacted in the new law regarding the family unit.
We therefore conclude that the illegitimate child, unmarried and under 21 years of age, of a citizen mother, is eligible for nonquota status under section 101 (a) (27) (A) of the Immigration and Nationality Act. Accordingly, the petition for the issuance of a nonquota immigrant visa should be approved.
Order: It is ordered that the appeal be sustained and that the petition for the issuance of a nonquota immigrant visa to the beneficiary be approved.
(June 8, 1953)
Discussion: On June 4, 1953, the Board of Immigration Appeals entered an order sustaining the appeal of petitioner and directing that the petition for the issuance of a nonquota immigrant visa to the beneficiary be approved. The Service had previously entered an order denying the visa petition on the ground that the beneficiary by virtue of being the illegitimate child of the petitioner, was not entitled to nonquota immigrant status under the Immigration and Nationality Act.
The issue presented is whether the illegitimate child of a United States citizen mother may be considered a "child" within the contemplation of section 101 (a) (27) (A) of the Immigration and Nationality Act ( 8 U.S.C. 1101), so as to qualify for nonquota immigrant status as the beneficiary of a visa petition filed in her behalf by her United States citizen mother.
Section 101 (a) (27) (A) provides as follows:
The term "nonquota immigrant" means —
(A) An immigrant who is the child or the spouse of a citizen of the United States.
The word "child" is defined in section 101 (b) of the act which provides in pertinent part as follows:
As used in titles I and II —
(1) The term "child" means an unmarried person under 21 years of age who is —
(A) A legitimate child; or
(B) A stepchild * * *
(C) A child legitimated under the law of the child's residence or domicile * * *
(2) The terms "parents," "father," or "mother" mean a parent, father, or mother only where the relationship exists by reason of any of the circumstances set forth in (1) above. [Emphasis supplied.]
The language set forth above is clear and unambiguous and expressly states that the word "child" refers to a legitimate child. It is well established that the plain words of a statute as to which there is no room for construction must be followed, Commissioner of Immigration v. Gottlieb, 265 U.S. 310 (1924). Thus, in a recent case concerning the construction of the provisions of an immigration statute the following was stated in U.S. Lines Co. v. Shaughnessy, 101 F. Supp. 61, 64 (affirmed 195 F. (2d) 385 (1952)):
In arriving at the intent of Congress, the courts are not to speculate as to the possible thoughts which might have been in the minds of the legislature when the statute was enacted. It is not for the court, acting upon conjecture and surmising what may have been the intent of the Congress, to interpolate exceptions in the statute, thus in effect avoiding and nullifying the express declaration of the act. On the contrary, the legislative intent is to be determined primarily from the language used in the act, read in connection with the canons of interpretation and surrounding circumstances. The language is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction. Words of ordinary import receive their understood meaning, and technical terms are construed in their special sense. While the literal meaning of the statute may be avoided to effectuate the legislative intent, Congress is presumed to mean what it says, and if there is no ambiguity in the act, it is generally construed according to its plain terms. [Emphasis supplied.]
In a recent case involving the construction of section 212 (a) (13) of the present act, the Board arrived at its decision by affirming such principle when it stated "while committee reports are entitled to great weight in interpreting an act of Congress, the reports, however, cannot supersede the language of the act itself," Matter of B----, T-2098246, Int. Dec. No. 421 (Apr. 3, 1953).
A legitimate child was defined by Blackstone as one that is born in wedlock, or within a competent time afterward, 1 Jones, Bl. Comm. 635. Legitimacy has been defined as "lawful birth; the condition of being born in wedlock, the opposite of illegitimacy or bastardy," Black's Law Dictionary, 3d ed. (1933), p. 1088. See also 24 Words and Phrases, 672; 2 Bouvier's Law Dictionary, 3d Rev. (1914) 1927.
The record establishes that the beneficiary in the instant case is not the issue of any marriage of her mother and it is conceded that the beneficiary was born out of wedlock. She is, therefore, not a legitimate child.
The Board of Immigration Appeals concedes that a reading of the sections referred to would appear to support the position of the Service. However, the Board makes reference to prior immigration laws and bases its conclusion primarily on the theory that it was the intention of Congress, in enacting the present statute, to alleviate hardships that might result from a separation of a family unit, in connection with their coming to the United States to reside. The Service concedes that it was the intent of Congress in certain provisions of the act, to preserve the family unit in connection with migration to the United States. However, the provisions of the sections of the act under consideration in this case are clear and explicit. Furthermore, Congress in passing the Immigration and Nationality Act was fully aware of the problem relating to illegitimate children. See comments by the Senate Committee on the Judiciary, Senate Report 1515, 81st Cong., 2d sess., pages 462, 468. Despite its awareness of this problem, Congress enacted section 101 (b) as part of the new act, specifically defining a child as a "legitimate child" and again specifically stating in subsection (2) that the term "mother" means a mother only where the relationship exists by reason of any of the circumstances set forth in subsection (1). Statutory language cannot be clearer to indicate that the designation of a child in titles I and II of the new act means only a legitimate child.
The Board's argument based on the preservation of a family unit was also urged in connection with a recent case involving an illegitimate stepchild of a United States citizen father to support the conclusion that an illegitimate stepchild is entitled to nonquota immigrant status within the purview of section 101 (a) (27) of the act. This contention was overruled by the Attorney General on June 2, 1953, in the Matter of M----, 0300/433026 (Int. Dec. No. 441). The Attorney General stated that "in view of the doubt that is raised concerning language such as used in the act in some of the cases referred to in decision of the Board of Immigration Appeals, this matter should be specifically called to the attention of Congress for its consideration as to desirability of clarifying legislation." The conclusion adopted by the Attorney General was that an illegitimate child of an alien mother and United States citizen stepfather was not a "stepchild" within the meaning of section 101 (a) (27). Certainly that decision which results in hardship not only to the child and her mother but also to the stepfather, overrules the "preservation of family unit" theory.
The Board further argues that it would scarcely be consistent for Congress to confer citizenship upon the illegitimate child of a citizen mother under the provisions of section 309 (c) of the act and at the same time deny nonquota status to the illegitimate child of a subsequently naturalized citizen mother. However, it again should be noted that Congress was aware of the problems relating to illegitimate children at the time of the enactment of this legislation. The definition of the word "child" set forth in section 101 (a) (27) is confined to the provisions of titles I (general) and II (immigration) of the act. Title III relating to nationality and naturalization in which is contained section 309 (c) of the act, is not included within the scope of the definition. It would appear, therefore, that Congress knowingly elected to distinguish between the status of an illegitimate child in immigration matters (title II) and the status of such a child in the field of naturalization (title III).
In the light of the foregoing, it is the view of the Service that to be entitled to nonquota status, a child, if otherwise eligible, must be a legitimate or legitimated child, that the beneficiary in this case does not fall within such class and, consequently, that she is not entitled to nonquota immigrant status under the visa petition filed in her behalf. The visa petition was therefore properly denied by the district director.
Motion is hereby made that the Board of Immigration Appeals reconsider and withdraw its order of June 4, 1953, and enter an order dismissing the appeal and affirming the decision of the Service in denying the visa petition.
(August 13, 1953)
Discussion: This case involves a petition for the issuance of an immigrant visa filed under the provisions of section 205 of the Immigration and Nationality Act by the citizen petitioner on behalf of her illegitimate daughter for a nonquota status as provided in section 101 (a) (27) (A) of the Immigration and Nationality Act. On June 4, 1953, we concluded that the illegitimate child, unmarried and under 21 years of age, of a citizen mother, is eligible for a nonquota status under section 101 (a) (27) (A) and ordered that the petition for the issuance of a nonquota immigrant visa to the beneficiary be approved. The matter now comes before us on motion of the Assistant Commissioner requesting reconsideration and withdrawal of our order of June 4, 1953, and the entry of an order dismissing the appeal and affirming the decision of the Service in denying the visa petition. Miss P---- and Mr. R---- appeared at oral argument as parties interested in the outcome to urge the granting of the visa petition.
The facts of the case are simple. The petitioner became a naturalized citizen at St. Louis, Mo., on February 2, 1951. She is presently married to a citizen and a lieutenant in the United States Army, but her daughter, the beneficiary, who was born on July 29, 1945, in Berlin, Germany, is admittedly a child born out of wedlock. Section 101 (a) (27) (A) of the Immigration and Nationality Act provides that the term "nonquota immigrant" includes an immigrant who is the child of a citizen of the United States. The term "child" as used in titles I and II is defined in section 101 (b) (1), (A) as a legitimate child, (B) a stepchild, or (C) a legitimated child. The present controversy revolves around the question of whether the term "child" as so defined, excludes a child born out of wedlock to a citizen mother.
The view of the Service is that the definition of the term "child" as used in titles I and II and as defined in section 101 (b) (1) of the Immigration and Nationality Act is clear and unambiguous; that a legitimate child necessarily excludes an illegitimate child; that in view of the plain language of the act, resorts to statutory construction is unnecessary; that Congress knowingly distinguished between the status of an illegitimate child for immigration purposes (title II) and the status of such a child for naturalization purposes (title III) by specifically referring to an illegitimate child as in section 309.
At oral argument, the Service representative referred to the fact that at common law, an illegitimate child was referred to as nullius filius or nullius populi. No representations are made that the commonlaw rule of nullius filius or nullius populi apply in this modern age. This rule was discarded over 30 years ago when the Attorney General observed that it had been often stated that the rule applied only to the case of inheritances; and that even the common law recognized the blood relationship of bastards where public policy required it. For example, the mother, as its natural guardian, had the right to the custody and control of her illegitimate child and a corresponding duty to support it. The Attorney General pointed out:
The rights of an illegitimate child in this country have been greatly enlarged by statute. The rules of the common law were based on the supposition that by subjecting an illegitimate child to severe disabilities, illicit relations between the sexes would be discouraged. This view has now been abandoned. In practically every State it is provided that such a child may inherit from its mother and in many it may inherit from its father, where it has been legitimated through the marriage of its parents or acknowledgment by its father as his own. These statutes are an expression of the modern view that where the identity of the parents is established, considerations of public policy no longer forbid the recognition of their relationship to the child.
This enlightened concept applies with even greater reason today because of the aftereffects of a world war. It is acknowledged that equities are present in the case in view of the express intent of Congress to alleviate the hardship entailed in the separation of a family unit seeking to come to the United States for permanent residence. It is submitted that in the case of an unmarried mother and her child, the mother and child constitute the family unit and it would constitute even greater inequity and hardship to separate these two because of the very absence of a responsible father.
At the outset, it is believed that resort to statutory construction is necessary because there is present in the provisions of section 101 (b) of the Immigration and Nationality Act a patent ambiguity. Section 101 (b) provides that the term "child" as used in titles I and II means (A) a legitimate child, (B) a stepchild, 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. It is submitted that paragraphs (A) and (C) are pari materia and must be considered together; and it is to be noted that under paragraph (C) no reference is made to the legitimation of a child under the law of the mother's residence or domicile. Let us assume that under the law of some foreign country, an unmarried mother may legitimate her child through some provision of the law of that country. Would it then be held that this child, thus legitimate, is not included within paragraph (C) of section 101 (b) (1) because that paragraph refers to legitimation under the law of the father's residence or domicile and does not mention the mother's residence or domicile? It is submitted that such a position is incongruous to a point of absurdity. It is far more reasonable to conclude that the omission of any reference to legitimation under the law of the mother's domicile or residence was a tacit acknowledgment and recognition of the fact that it was not intended to include the child born out of wedlock to a mother within this category and that the sole objective and purpose of defining legitimate children was to pretermit the illegitimate children of a father.
There is general agreement that the intent of Congress to preserve the family unit is expressed in many provisions of the Immigration and Nationality Act. There are frequently times when the literal expression of legislation may be inconsistent with the general objectives or policies behind it and on the basis of the equity or spirit of the statute, courts rationalized a restricted meaning of the letter. A restricted interpretation is usually applied where the effect of a literal interpretation would make for injustice and absurdity or would shock general common sense.
Under its restricted operation the doctrine of equity or spirit of the statute has found wide application in the jurisdiction of the United States. Thus, in Holy Trinity Church v. United States, an act of Congress forbidding the importtation of aliens under contract to perform "labor or service of any kind" was construed to be inapplicable where a foreign minister was brought to this country under contract with a church. Likewise, a statute requiring shipowners and officers bringing aliens to this country to adopt due precautions to prevent the "landing" of the alien contrary to law was held inapplicable to a landing by a sailor who deserted.
Taylor v. United States, 207 U.S. 120 (1907).
The doctrine of interpreting a statute according to its purpose or spirit, when properly employed, undoubtedly provides the soundest judicial technique for understanding the meaning of a statute. Not only must attention be given the language and contextual arrangement of the statute, but also the proper emphasis must be accorded the existing law relating to the subject, the social and economic factors giving rise to the legislation, and the effect that a possible interpretation will have upon society. It is a well-established rule that for the purpose of determining a statute, recourse may be had to considerations of public policies. The natural import of the words employed in the statute, according to their common use, when applied to the subject matter of the act, is to be considered as expressing the intention of the law-making body unless the intention so resulting from the ordinary import of the words be repugnant to sound acknowledged principles of national policy. If that intention be repugnant to such principles of national policy, then the import of the words ought to be enlarged or restrained, so that it may comport with those principles, unless the legislative intention be clearly and manifestly repugnant to them.
Bayonne Textile Corp. v. American Federation of Silk Workers. 172 A. 551 (N.J.E.N.A. 1934).
Roman law permitted bastards (naturales) to inherit from the mother. The common law, however, did not recognize that a bastard had a mother for the purpose of inheritance. At the present time, statutes exist in practically all jurisdictions which permit an illegitimate child to inherit from its mother. The severity of the commonlaw rule regarding the right of illegitimates to inherit has led to the passage of statutes in many jurisdictions modifying it or abrogating it completely. These statutes rest upon the principles that the relationship of parent and child ought to produce the ordinary consequence of consanguinity and that it is unjust to punish the offspring for the offense of the parents.
Idem, p. 721.
The relaxation of the severity of the common-law rule which either did not recognize or severely restricted the rights and privileges of illegitimate children, is manifested not only in statutes dealing with inheritance but is evident in other fields. Included in these liberalized and modern concepts of the relationship between mother and illegitimate child are the laws, regulations, and administrative decisions in the field of immigration and nationality law. Thus, the second paragraph of section 205 of the Nationality Act of 1940 and section 309 (c) of the Immigration and Nationality Act contain provisions that a person born out of wedlock shall be held to have acquired at birth the nationality status of his mother. Regulations of the Department of State relating to nonquota immigrants, 22 C.F.R. 61.209 (41.209), provided that a petition for nonquota status for an illegitimate alien child may be filed with the Department of Justice when the petition is executed by the citizen mother. Administratively, the mother of an illegitimate child has been held to be a parent for the purposes of suspension of deportation within the meaning of section 19 (c) of the Immigration Act of 1917, as amended.
There is no foundation for any belief that Congress intended to limit the modern concept it had employed in the treatment of illegitimates and to revert to a return to the rigors and hardships of the common law. In fact, the congressional reports are to the contrary and indicate the desire for a better method of keeping the families of immigrants together by affording a more liberal treatment of children. Not only was a new class added to the definition of children, to wit, stepchildren, but the efforts to keep together the family unit extended to more favorable treatment of brothers, sisters, sons, or daughters of citizens of the United States.
Sec. 203 (a) (4), Immigration and Nationality Act.
The point has been made that the decision of the Attorney General in Matter of M----, Int. Dec. No. 441 (June 2, 1953), construing the term "stepchild" as used in section 101 (b) (1) (B) of the Immigration and Nationality Act reflects unfavorably upon the position we have taken in the present case. We do not regard the decision in that light. Matter of M----, held that a child born out of wedlock prior to the marriage of a woman to a United States citizen was not a stepchild within the meaning of section 101 (b) (1) (B) of the Immigration and Nationality Act. In the first place, it is to be noted that the Attorney General was construing a term new to the Immigration and Nationality law and chose to adopt a strict or narrow interpretation. Secondly, in construing the term "stepchild" the Attorney General employed a rule of statutory construction, similar to the rule we have here used, by restricting the term "stepchild" to mean a "legitimate stepchild," and not to include an "illegitimate stepchild." Similarly, in construing the term "legitimate child," we are restricting that terminology because of the further language in paragraph (C) as to legitimation under the law of a father's residence or domicile to mean the legitimate child of a father. It is to be noted that in both cases of statutory construction, a restricted meaning has been placed upon the language of the statute.
In addition, the interpretation we have reached in the present case is even more necessary because of the decision in Matter of M---- ( supra). The Attorney General has ruled that an illegitimate stepchild does not obtain a nonquota status. In other words, the marriage of the alien mother of the alien illegitimate child to a citizen gives the illegitimate child no additional benefits. This ruling is in no way inconsistent with our position in this case because here the rights of the illegitimate child are based solely upon its relationship to its own mother. The benefit accruing to the illegitimate child arises solely out of the blood relationship and no inconsistency is present because even if the mother were to marry a citizen, the child would obtain nothing additional by such marriage.
At oral argument, the Service has also made the point that if Congress wished to achieve the result reached by the Board, it would have used the term "natural child" instead of "legitimate child." We fail to see either the merit or the relevancy of this argument. It is conceded that the terms "natural child" and "illegitimate child" are synonymous. We are not contending that the natural or illegitimate child of the father is eligible for nonquota status. We confine ourselves to construing this provision regarding a legitimate child as not precluding the grant of a nonquota status to the illegitimate child of a citizen mother. Congressional reports involving the new act indicate awareness of the State Department regulation, 22 C.F.R. 41.209, permitting a citizen mother to petition for a nonquota status on behalf of her illegitimate alien child and express tacit approval of such a practice. The legislative history is absolutely devoid of any indication that Congress was not in hearty agreement with this practice.
S. Rept. 1515 (81st Cong., 2d sess. p. 462).
After full consideration of the views set forth by the Service, and for the reasons set forth at length in our order of June 4, 1953, and repeated and expanded herein, we again conclude that the minor unmarried illegitimate alien child of a citizen mother is eligible for a nonquota status under section 101 (a) (27) (A) of the Immigration and Nationality Act. Accordingly, we will deny the present motion to reconsider.
Order: It is ordered that the motion to reconsider be and the same is hereby denied.
(February 2, 1954)
Discussion: The decision and order of the Board of Immigration Appeals dated June 4, 1953, reaffirmed August 13, 1953, are hereby reversed and the decision of the District Director at Miami denying the visa petition on the ground that the beneficiary is not entitled to nonquota immigration status under the Immigration and Nationality Act is reinstated.
The petitioner in this case is the mother of a child conceived and born out of wedlock, fathered by a man other than the man the petitioner subsequently married, and never legitimated by its natural father. Although the petitioner in this case has since become a naturalized United States citizen, Congress has determined that she may not bring her daughter into this country as a nonquota immigrant unless the child falls under the definition of "child" in section 101 (b) (1) of the Immigration and Nationality Act of 1952. Under that section, a "child" is either (A) a legitimate child, or (B) a stepchild, 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 if the child is in the legal custody of the legitimating parent or parents. The meaning of the words "legitimate" and "legitimated" in the statute is clear. Because the child in the instant case was neither legitimate nor legitimated, Congress could not have intended her to enjoy nonquota status under section 101 (a) (27) (A) of the act. In all other respects the present case is controlled by Matter of M----, File 0300/433026, June 2, 1953 (Int. Dec. No. 441).
If the result here is harsh, the matter should be brought to the attention of Congress and a specific provision sought which would allow such mothers, themselves United States citizens or permanent residents, to bring into their new family units their illegitimate children as nonquota or preferential immigrants.