VP-13-8541.
Motion of Assistant Commissioner September 9, 1954. Decided by Board April 14, 1955. Affirmed by Attorney General July 19, 1955.
Legitimacy of child born out of wedlock — China — Section 101 (b) (1) (A) of Immigration and Nationality Act.
A child born out of wedlock in China in 1934, "in the relationship to his mother, is deemed to be legitimate" in that country (Article 1065 of the Civil Code of the Republic of China) and, under rules of comity, such status of legitimacy will be recognized in the United States so as to bring the child within the statutory definition of "legitimate child" in section 101 (b) (1) (A) of the Immigration and Nationality Act.
ASSISTANT COMMISSIONER'S MOTION
(September 9, 1954)
Discussion: On August 6, 1954, the Board of Immigration Appeals sustained an appeal from the decision of the district director who had entered an order denying the petition for the issuance of a visa in behalf of the beneficiary.
Petitioner, born in China in 1909 of a United States citizen father, seeks to obtain nonquota status on behalf of her alleged son, born in China on September 18, 1934. Petitioner has stated that she was engaged to the father of the beneficiary, but that the death of the father interrupted their plans to become married.
The issue presented is whether a child born out of wedlock in China may be considered a "child" within the contemplation of section 101 (a) (27) (A) of the Immigration and Nationality Act so as to qualify for nonquota immigrant status as the beneficiary of a visa petition filed in his behalf by his United States citizen mother. Whether or not he is eligible for such status depends on the construction of the word "legitimate" contained in section 101 (b) (1) (A) of the act, which provides that the term "child" means an unmarried person under 21 years of age, who is a legitimate child.
A legitimate child was defined by Blackstone as one that is born in wedlock, or within a competent time afterwards, 1 Jones, B1. Com. 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, 3rd ed. (1933), p. 1088. See also 24 Words and Phrases 672; 2 Bouvier's Law Dictionary, 3rd Rev. (1914) 1927.
It would, therefore, appear that according to this definition the beneficiary in the instant case is not a legitimate child and consequently is not eligible for nonquota status ( Matter of A----, VP 6-2026, 5 IN Dec. 272, A.G. February 2, 1954). In the cited case, it was pointed out by the Attorney General that the petitioner in that case was the mother of a child conceived and born out of wedlock, that the child was fathered by a man other than the man petitioner subsequently married, that the child was never legitimated by its natural father and, consequently, the child could neither be considered legitimate or legitimated.
The Board, however, reaches the conclusion that the child is eligible for nonquota status inasmuch as the law of China, namely, Article 1065 of the Civil Code of the Republic of China, adopted February 28, 1931, provides that:
In the relationship to his mother, a child is deemed to be legitimate and no acknowledgment is necessary.
The Board, therefore, concludes that under the law of China the beneficiary was considered at all times to be the legitimate child of the petitioner and, consequently, such status of legitimacy should receive recognition.
It is the view of the Service that the word "legitimate" has a precise and well-settled meaning in this country and that the interpretation given thereto should be the one that is commonly understood in the United States, namely, that a child born out of wedlock is an illegitimate and not a legitimate child. The following is stated in Sutherland, Statutory Construction, Volume 3, p. 5302 (1943):
Words and phrases having a well-defined meaning in the common law are to be interpreted in the same sense under the statute when used in connection with the same or similar subject matter with which they are associated at common law. Likewise, words employed in the statute involving new and different subject matter should be examined in the light of the meaning which was attached to them at common law.
While a person who is legitimate according to law of his domicile is in general, legitimate elsewhere, this rules does not apply where recognition of legitimacy is contrary to the positive law or to the sovereign power where legitimacy is in question, or so repugnant to good morals that it would be improper to recognize legitimacy (10 Corpus Juris Secundum 102). Following the Board's reasoning in this case that a child born out of wedlock in China is legitimate as to the mother, it necessarily follows that all children born out of wedlock in China are legitimate as to the mother, whether or not the mother is legally married or a concubine. In a memorandum supplied by the Library of Congress, dated July 23, 1954, relating to Chinese law, it is stated that in a court decision it was concluded that:
Although the present Civil Code does not recognize the status of concubinage, according to the provision in Par. 2, Article 1065 of the Civil Code, children born by a concubine shall be her legitimate descendants * * * (1933: Court of Appeals, No. 1727).
Certainly, it cannot be seriously contended that Congress intended to grant nonquota status to children of concubines who would be deemed "illegitimate," according to the standards of the United States. The conclusion reached by the Board would only result in granting preferential treatment to children born in China over children born out of wedlock in the United States or in other foreign countries.
In the case of Ng Suey Hi v. Weedin, 21 F. (2d) 801 (C.C.A. 9, 1927), the court had before it a question as to the legitimacy of a child born in China of a polygamous marriage, for the purpose of determining whether citizenship was conferred upon such child. In that case, the court concluded that while the validity of a marriage is determined by the place where the marriage was contracted, an exception to the general rule is ordinarily made in the case of marriages repugnant to the public policies of the domicile of the parties, in respect to polygamy, incest or miscegenation, or otherwise contrary to its positive laws. The court concluded that the marriage was contrary to public policy of the United States and would not be considered valid. Furthermore, it was concluded that the child born of such marriage was an illegitimate child. A similar conclusion was reached in Mason ex rel. Chin Suey v. Tillinghast, 26 F. (2d) 588 (C.C.A. 1, 1928).
Similarly, it is the view of the Service that the child in the instant case cannot be deemed to be a "legitimate" child within the meaning of the section involved so as to be eligible for nonquota status. In construing the word "legitimate" for the purposes of the Immigration and Nationality Act, the meaning as understood in the United States should be used. The word should be defined without reference to the law of the foreign jurisdiction. Cf. United States V. Savoretti, 200 F. (2d) 546 (C.A. 5, 1952), wherein it was concluded that the moral turpitude referred to in section 19 of the Immigration Act of February 5, 1917, is determined without reference to the laws of foreign jurisdictions. It is, furthermore, the view of the Service that to give preferential treatment to the children born in China is against public policy and that such construction was not intended by Congress. The appeal from the decision of the district director should not have been sustained. Motion is hereby made that the Board of Immigration Appeals reconsider and withdraw its order of August 6, 1954, and enter an order dismissing the appeal.
(April 14, 1955)
Discussion: The matter comes before us on motion dated September 9, 1954, of the Acting Assistant Commissioner, Inspections and Examinations Division, requesting that we reconsider and withdraw our order of August 6, 1954, and enter an order dismissing the appeal from the decision of the district director denying the petition for the issuance of a visa in behalf of the beneficiary.
The record discloses that the petitioner seeks nonquota status on behalf of her alleged child, born in China on September 18, 1934. The beneficiary was born out of wedlock. However, because of the provisions of Article 1065 of the Civil Code of the Republic of China, adopted February 28, 1931, which states that in the relationship to his mother, a child is deemed to be legitimate and no acknowledgment is necessary, the conclusion was reached that the beneficiary was legitimate according to the law of China where the child and his parent were both domiciled. Under familiar rules of comity we granted recognition to the status of legitimacy thus conferred under the laws of China and approved the visa petition.
The Service contends that the word "legitimate" has a precise and well-settled meaning in this country and that the interpretation given thereto should be the one that is commonly understood in the United States, namely, that a child born out of wedlock is an illegitimate child and not a legitimate child. Section 101 (a) (27) (A) confers nonquota status upon the "child" of a citizen of the United States. The term "child" is defined in section 101 (b) (1) to include (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, 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.
A reference to the definition in section 101 (b) (1) fails to disclose any limitation upon the use of the word "legitimate." The definition is not limited to merely children in the United States and should be construed in like manner as subparagraph (C) of section 101 (b) (1) which specifically extends the manner of legitimation to the law of the child's or the father's residence or domicile whether in or outside the United States. The language used is all-inclusive, and in view of the plain language employed there is no need to engage in the nebulous process of ascertaining congressional intent. If the term "legitimate" were to be restricted in application as contended for by the Assistant Commissioner, while the term "legitimated" was given its extended meaning as provided in subparagraph (C) of section 101 (b) (1), an anomalous situation would be presented, since it must be remembered that a legitimated child is regarded as legitimate from birth.
The doctrine of general writers is that the status of legitimacy or illegitimacy is governed by the law of the child's origin. Legitimacy being a domestic status, it must on general principles be governed by the domicile of the parties to it. These parties are the child or one or both of its parents, for a child may be the legitimate child of one parent and not of the other. Legitimacy once created by proper law should everywhere be recognized, and the same effect given to it as is given to the same status created in the state of forum, or in the state where the effect is to be found. The cases referred to in the motion, Ng Suey Hi v. Weedin, 21 F. (2d) 801 and Mason ex rel. Chin Suey v. Tillinghast, 26 F. (2d) 588, involved the issue of a Chinese polygamous marriage, a situation not present in the instant case. Furthermore, the decisions in those cases refusing to recognize foreign legitimation as contrary to public policy appeared to rest on no sound principle and have been the subject of criticism.
Beale, Conflict of Laws (1935 edition) Vol. II, pp. 704-705.
Beale, Conflict of Laws (1935 edition) Vol. II, p. 712.
31 Harvard Law Review 892; Beale, Conflict of Laws, Vol. II, p. 712.
The accepted view is that where the identity of parents is established considerations of public policy no longer forbid the recognition of their relationship to the child. When by the law of the state of domicile of the father of an illegitimate child, at the time of his marriage with its mother or at the time of his acknowledgment of the child as his own, the child is legitimated, it will be regarded as legitimate everywhere, even in states whose laws do not recognize subsequent legitimation. Legitimation may be accomplished in various ways: By judicial proceeding (Tennessee); by recognition and acknowledgment by the putative father, either in writing or in other ways (Iowa, Kansas, North Dakota); by recognition alone (Kansas, Iowa); under statutes requiring admission into the family (section 230, California Civil Code); by recognition or acknowledgment in writing (Oklahoma, Washington, California, Iowa); as well as the more unusual method of legitimation by subsequent marriage of the parents. Under section 230 of the California Civil Code a child born in China by a concubine was legitimated by the action of the father which was construed as compliance with the requirements of the statute. Under paragraph 162 of the Austrian Civil Code a child born out of wedlock was legitimated by Presidential Decree upon petition of the mother who never married the natural father of the child.
7 American Jurisprudence, p. 660 ff.
Matter of L---- T----, VP 13-1790 (April 12, 1954).
Matter of C----, VP 11-1530 (April 24, 1954).
It is concluded that sufficient authority has been cited to show that the law looks with favor upon the status of legitimacy and will confer recognition upon such status created in accordance with the law of the child's origin. This rule of law favoring legitimacy and its recognition has received widespread application and there is no reason to assume that Congress in using the word "legitimate" intended to limit it to a dictionary definition when the great body of case law and authoritative writings indicate a widespread acceptance of the liberal interpretation of that term. It is concluded that no change should be made in our prior order.
Order: It is ordered that the motion be and the same is hereby denied.
(July 19, 1955)
The decision and order of the Board of Immigration Appeals dated April 14, 1955, are hereby affirmed.