A-8962534
Decided by Regional Commissioner December 10, 1957 Approved by Assistant Commissioner
Stepchild — Section 101 (b) (1) (B) of Immigration and Nationality Act, as amended by section 1 of Public Law 85-316 (September 11, 1957) — Nonquota status.
(1) The legislative history of the Act of September 11, 1957 (Public Law 85-316) clearly indicates that the Congress intended to provide that its amended definition of "child" be applied retroactively to December 24, 1952, the effective date of the Immigration and Nationality Act.
(2) A 12-year-old child born out of wedlock prior to the marriage of her mother to a United States citizen (not the father of the child) became the stepchild of said United States citizen within the meaning of section 101 (b) (1) (B) of the act and, therefore, entitled to nonquota classification on October 25, 1956, when her application for adjustment of status was filed. (cf. Matter of M----, 5 IN Dec. 120.)
BEFORE THE REGIONAL COMMISSIONER
Discussion: This matter comes forward on appeal from an order of the District Director, Honolulu, Hawaii, dated May 9, 1957, denying subject's application for adjustment of status from a nonimmigrant to that of a person admitted for permanent residence under section 245 of the Immigration and Nationality Act. The denial was predicated on a finding that the appellant was not entitled to classification as a nonquota immigrant and that a quota immigrant visa was not immediately available to the appellant at the time the application was filed as the quota of the Philippines to which she was chargeable was then oversubscribed.
The appellant, a 12-year-old female, the illegitimate daughter of E---- E----, was born in the Philippines on September 19, 1945. She entered the United States with her mother, an employee of an official of the Philippine Consulate, at Honolulu, Hawaii, on March 11, 1955, at which time she was admitted as a nonimmigrant under section 101 (a) (15) (A) (iii) for a period of one year. Until the filing of the instant application subject maintained her nonimmigrant status, having been granted an extension of her temporary stay to March 10, 1957.
On May 19, 1956, subject's mother married a citizen of the United States. On October 25, 1956, subject filed the instant application for adjustment of status. In this application she claimed eligibility for nonquota status under section 101 (a) (27) (A) as the stepchild of a United States citizen, basing this claim on her mother's aforesaid marriage to the citizen husband.
On May 20, 1957, the appellant filed an appeal from the district director's denial and was granted several extensions within which to submit a brief in support of her appeal. In the appellant's brief, dated September 13, 1957, her counsel contends that she is a stepchild of a United States citizen as defined in section 101 (b) (1) (B) of the Immigration and Nationality Act, as amended by the Act of September 11, 1957, and, therefore, entitled to the status of a nonquota immigrant. Counsel further contends that as a nonquota immigrant a visa is readily available, and, hence, appellant's application for adjustment of status under section 245 may now be granted, she having resided in the United States for at least one year prior to acquiring that status.
The evidence of record adequately establishes that the appellant was lawfully admitted to the United States in good faith as a nonimmigrant and continued to maintain that status until the filing of the instant application. The finding by the district director that the quota of the Philippines was oversubscribed is not contested.
Prior to September 11, 1957, a child born out of wedlock prior to the marriage of his mother to a United States citizen (who was not the father of the child) was not a stepchild within the meaning of section 101 (b) (1) (B) of the Immigration and Nationality Act ( Matter of M----, 0300-433026, 5 IN Dec. 120). Accordingly, on October 25, 1956, the date the instant application was filed, and on May 20, 1957, the date the instant application was denied, the appellant was not entitled to nonquota classification as a "child" of a citizen, her mother being an alien. Counsel contends, however, that the appellant should be given the benefits of section 1 of Public Law 85-316, approved September 11, 1957, which provides that the term "child" means an unmarried person under twenty-one years of age who is —
(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
It having been conceded that a quota visa was not available to the appellant neither at the time her application was filed nor at the time it was adjudicated, she can qualify for adjustment of status under section 245 only by establishing that a nonquota visa was available to her on each of those occasions. She can accomplish this only if the definition of "child" of Public Law 85-316, cited above, can be held to be retroactive and in existence on the date the application was filed and decided.
The legislative history of P.L. 85-316 clearly indicates that it was remedial in nature. It has been held that if an amendment is either procedural or remedial in character the settled rule permits its retroactive application ( Bowles v. Strickland, 151 F. (2d) 419; Beatty v. United States, 191 F. (2d) 317; Dargel v. Henderson, 200 F. (2d) 564).
That the definition in question was intended to be remedial and retroactive finds support in the legislative reports. The following statement appears in the Report of the Senate Committee on the Judiciary, dated August 20, 1957 (Senate Report No. 1057, 85th Congress, 1st Session, p. 4):
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 his 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. [Emphasis added.]
The House of Representatives Committee on the Judiciary in its Report No. 1199, 85th Congress, 1st Session, p. 7, commented as follows:
In view of the fact that the committee's attempts to clarify legislative intent remain unsuccessful, it is believed that there is a need for the enactment of the instant section, in order to alleviate hardship and provide for a fair and humanitarian adjudication of immigration cases involving children born out of wedlock and the mothers of such children.
The legislative history, portions of which are quoted above, clearly indicates that the Congress intended to provide that its liberal definition of "child" be applied retroactively to December 24, 1952, the effective date of the Immigration and Nationality Act, to the same extent as though that definition had been set forth in the original enactment of that act.
Upon the basis of the foregoing, it is concluded that the appellant was the stepchild of a United States citizen on October 25, 1956, the date the instant application was filed, and continues in that relationship to the present. She was, therefore, entitled to nonquota classification on the date her application was filed and on the date the application was decided. As a nonquota immigrant she establishes that a visa is readily available to her.
The record file fails to indicate the result of the appellant's medical examination. The case will be returned to the district director for the incorporation of the medical report and such further action as he deems necessary and appropriate consistent with this decision.
Order: It is ordered that the alien's appeal dated May 20, 1957, from the order of the district director denying her application for adjustment of status from nonimmigrant to immigrant be and the same is hereby sustained.
It is further ordered that the case be remanded to the district director for further consideration consistent with this decision.