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ANDRADE v. ESPERDY

July 13, 1967

Viola Theresa ANDRADE, Plaintiff,
v.
P. A. ESPERDY, District Director, Immigration and Naturalization Service, United States Department of Justice, Defendant



The opinion of the court was delivered by: EDELSTEIN

EDELSTEIN, District Judge.

 This is an action for a declaratory judgment, 28 U.S.C. § 2201, and for a reversal of an administrative ruling under the Administrative Procedure Act, 5 U.S.C. § 1001 et seq. Plaintiff has moved for summary judgment. The material facts in this case are not disputed between the parties and, indeed, an independent review of the record reveals no factual dispute. Hence the matter is appropriate for summary judgment. Dressler v. M/V Sandpiper, 331 F.2d 130 (2d Cir. 1964); Rule 56 F.R.Civ.P.

 Plaintiff, Viola Theresa Andrade, born in Charleston, South Carolina, on September 7, 1902, is a natural-born citizen of the United States. She married Pedro Vierra Andrade, a naturalized citizen since May 20, 1943, on July 5, 1959, in Bronx County, New York. In 1947, Pedro Andrade, a widower, visited his native Cape Verde Islands. During that time, he briefly lived with a distant relative, an unmarried woman. After Pedro Andrade's return to the United States, she gave birth to their child, Maria de luz Vierra de Andrade, on June 5, 1948. In May 1959, Pedro Andrade went to Portugal and attempted to adopt Maria in order to bring her to the United States. Unfortunately for all concerned, he followed a Portuguese procedure known as "perfilhacao" which is not an adoption but merely an acknowledgment that an illegitimate child is one's own. Mr. Andrade petitioned for a visa on behalf of Maria, which was granted but subsequently revoked when it was discovered that Maria had not been legally adopted. Mrs. Viola Andrade has known Pedro Andrade since prior to 1953 when they began keeping company. He informed her of Maria's existence and of the fact that he sent Maria money, food and clothing. During the Andrades' period of courtship, the future Mrs. Andrade often wrote to Maria. They continued to correspond with each other after the marriage, referring to themselves as "Mother" and "Daughter." Since their marriage the Andrades have been sending Maria fifty dollars a month out of their joint bank account. Mrs. Andrade filed a petition with the Immigration and Naturalization Service to classify Maria as a non-quota immigrant stepchild under Section 101(b)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(B), which provides, in part:

 
"[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 * * *."

 The District Director denied the petition on May 12, 1966, on the ground that Maria was not a stepchild within the comtemplation of the statute. This decision was affirmed by the Board of Immigration Appeals on October 7, 1966.

 The Immigration and Naturalization Service takes the position that in order for a child to be a stepchild under the statute there must have existed at one time a bona fide family unit which included the illegitimate child, the natural father and the stepmother. The plaintiff contends that a marriage between a natural father and a woman creates a stepparent-stepchild relationship between the woman and the child and that any consideration of a pre-existing family unit is irrelevant. Both parties purport to be following Judge Feinberg's decision in Nation v. Esperdy, 239 F. Supp. 531 (S.D.N.Y.1965), the only reported court case involving an interpretation of the subsection of the statute presently in question.

 In Nation, the beneficiary was born out of wedlock to the plaintiff's future husband and another woman in Kingston, Jamaica, on February 12, 1947. The beneficiary was abandoned by his natural mother. The plaintiff began caring for the beneficiary in 1949 and married the beneficiary's natural father in 1952. The plaintiff immigrated to the United States in 1957 and her husband followed a year later. The beneficiary was left behind due to the unavailability of a visa for him. The plaintiff became a naturalized citizen in 1962 and immediately petitioned for the beneficiary's admittance to the United States on a non-quota visa. The petition was denied by the District Director and his action was sustained by the Board of Immigration Appeals. The defendant took the position that an illegitimate child is to be classified as a stepchild only if the petitioning citizen-spouse is the husband of the child's natural mother. Judge Feinberg disagreed and held that the beneficiary was indeed the petitioner's stepchild and entitled to admittance on a non-quota visa.

 The defendant, in the case at hand, does not contend that Nation was wrongly decided. Instead, the defendant emphasizes the particular facts of Nation, i.e., the pre-existing family unit. It must be pointed out, however, that in Nation the plaintiff left Jamaica in 1957, the husband left in 1958, and the suit was decided in 1965. There had been no family unit for eight years. Neither the plaintiff nor her husband was an American citizen in 1957 so that it was not the case of one desirous of returning to his home. It would seem that family consideration would have called for the family remaining in Jamaica until a visa was available for the child. The language in Nation referring to the family unit situation is in reality no more than a broad humanitarian basis for reaching a just decision when no authoritative guidelines existed as to the interpretation of the subsection in question. Indeed, as Judge Feinberg wrote:

 
"While plaintiff does not urge the 'plain meaning' rule in so many words, she does argue that 'Congress is presumed to mean what it says,' and that since Congress in 1957 defined stepchild in the broad language of 'whether or not born out of wedlock' this definition includes any stepchild whether previously born illegitimately to the mother or the father. The 'plain meaning' rule is always deceptively attractive for its simplicity; the trouble is that the meaning of too many statutes is not 'plain.' For example, although accepted dictionaries define stepchild as a child by a former marriage, this statute literally contemplates that for immigration purposes, a person may be a stepchild even though he is illegitimate. Nonetheless, the language of the statute is of prime importance. Neither the language of section 101(b)(1)(B) nor the accepted dictionary definitions make any distinction between mother and father in defining the stepchild." Id. at 533-534.

 The dictionaries cited by Judge Feinberg were Black, Law Dictionary 1884 (4th ed. 1951) and Merriam-Webster, New International Dictionary 2237 (3rd ed. 1961). The Black definition was cited in Flanagan v. Railroad Retirement Bd., 332 F.2d 301, 303 (3d Cir. 1964), a case involving an interpretation of the Railroad Retirement Act.

 Looking at the language of Section 101(b)(1)(B), there seems to be no valid reason why the definition of the word stepchild ought to be burdened with conditions other than those imposed by Congress. Indeed, when Congress wished to change the accepted definition of the word it did so in precise terms by adding the phrase "whether or not born out of wedlock." Prior to 1957 the subsection read:

 
"[A] stepchild, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred * * *."

 Congress knew how to specify a particular parent in other subsections of 8 U.S.C. § 1101(b)(1):

 
"[A] child legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile ...

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