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November 28, 1975

Ramon Martin FIALLO, an infant by his mother, Celia Francisca Michael Rodriguez, et al., Plaintiffs,
Edward H. LEVI, Individually and as Attorney General of the United States, et al., Defendants

The opinion of the court was delivered by: MOORE

MOORE, Circuit Judge:

This is an action challenging the constitutionality of two classifications of aliens established by Congress as part of a comprehensive scheme for the admission of aliens into the United States contained in the Immigration and Nationality Act (the "Act"), Title 8 U.S.C. § 1101 et seq. Plaintiffs specifically challenge the Act's definition of "parent" and "child" insofar as it excludes the relationship between unwed, biological fathers and their illegitimate children. *fn1" The effect of the exclusion is to subject the aliens in question to restrictive numerical quotas and labor certification requirements which are waived for individuals who qualify as parents or children, within the meaning of the Act, of American citizens and permanent residents. *fn2" Plaintiffs are three sets of unwed, biological fathers and their illegitimate offspring. Both the aliens excluded by this section of the Act and the American citizens or permanent residents who are these aliens' illegitimate children or biological fathers have joined as plaintiffs in this suit; their claim is that the statutory classification is unconstitutional on its face since unwed biological fathers are excluded while unwed biological mothers are not.

 A three-judge court was ordered convened, and plaintiffs have moved this Court for certification as a class action, summary judgment and a permanent injunction. For the reasons which follow, those motions are denied, and judgment is entered for the defendant. The facts are not in dispute, and may be summarized briefly.

 Ramon Fiallo, an infant and an American citizen by birth, applied -- through application submitted on his behalf by his mother -- to the United States Consul in the Dominican Republic to have his alien father officially declared to be his parent under the immigration laws, so that the latter might remain permanently in the United States. Ramon Fiallo's petition was rejected, the Consul stating that Fiallo senior could not be declared the parent of an American citizen since his child was illegitimate. At present, both parents are living together in this country with their child; although the father could qualify as a parent if he legitimated his son, he and the boy's mother do not wish to marry.

 Cleophus Warner, a naturalized American citizen, attempted to have his illegitimate son Serge, a citizen of the French West Indies, officially declared to be his child within the meaning of the Act by filing a petition with immigration authorities in New York, so that the boy might remain permanently with his father in this country. The petition was rejected since the boy was neither the father's legitimate nor legitimated offspring, and hence he could not meet the Act's definition of a child.

 Trevor and Arthur Wilson are two brothers under twenty-one years of age who are permanent residents of the United States. After the death of their biological mother they sought to have their father, a citizen of Jamaica, officially classified as their parent so that he might qualify for permanent residency in this country. It is not clear whether their petition has already been denied, but denial is certain since the boys were never legitimated and hence their father cannot qualify as a parent under the Act.

 The alien fathers and son in this action believe that their only realistic avenue of admittance to this country on a permanent basis is through classification as the parent or child of an American citizen or permanent resident. Fiallo senior has sought a labor certificate unsuccessfully in the past; Wilson senior alleges that the only job for which he is qualified -- that of general handyman -- is one for which the required certificate is not granted.

 Subject matter jurisdiction is conferred on this Court by section 279 of the Act, Title 8 U.S.C. § 1329.

 A threshold question is presented with regard to Fiallo's standing to maintain this action. The administrative decision on which Fiallo bases this suit is the denial of his petition by the United States Consul at Santo Domingo. Decisions of consuls granting or denying a visa have been held to be immune from judicial review. See, e.g., Loza-Bedoya v. INS, 410 F.2d 343 (9th Cir. 1969). We note, however, that the petition in question here did not constitute an application for a visa, but was a preliminary declaration of immigrant status. We will not extend consular nonreviewability, insofar as that rule has been recognized, beyond the actual grant or denial of a visa. This is predicated upon our reluctance to insulate entirely the actions of any public official from judicial scrutiny, and thereby foreclose a group of plaintiffs from seeking relief in the courts. Plaintiff Fiallo, therefore, is not barred from bringing this action.

 Turning to the merits, we begin with the proposition that Congress' power to make rules for the admission and expulsion of aliens is exceptionally broad.


The Court without exception has sustained Congress' plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden. [Over] no conceivable subject is the legislative power . . . more complete than it is over the admission of aliens.


Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S. Ct. 2576, 2583, 33 L. Ed. 2d 683 (1972) (quotation marks and citations omitted)

 The limits to the exercise of this power are few, for an alien has no constitutional right to enter or remain in this country, Kleindienst v. Mandel, supra. Moreover, he may be denied entrance on grounds which would be constitutionally suspect or impermissible in the context of domestic policy, namely, race, *fn3" physical condition, *fn4" political beliefs, *fn5" sexual proclivities, *fn6" age, *fn7" and national origin. *fn8"

 In regulating the admission of aliens who are the spouses, parents, and children of American citizens and permanent residents, Congress has chosen to specify the kind of relationships which are, for purposes of the immigration laws, embraced within those terms. This is a perfectly proper exercise of the Congressional responsibility to admit into this country those individuals who will be desirable additions to our populace. This includes individuals who will respect our system of government *fn9" and who will be useful additions to our labor force, *fn10" as well as those whose lives reflect personal standards of conduct important to our society's sense of morality. And while the Congress' view about what kind of marital or parental relation should be encouraged in this country may differ from the individual views held by the members of the courts, it is not for the judiciary to usurp the legislative function and replace the Congressional standards with its own.

 A number of courts have ruled on the question of whether, in the immigration field, Congress may constitutionally apply its own standards with respect to the status of familial relations, and we note that this power has consistently been upheld. In United States v. Diogo, 320 F.2d 898 (2d Cir. 1963), this Court held that a marriage valid under state law need not be recognized as valid under the immigration laws.


Of course Congress may adopt a federal standard of bona fides for the limited purpose of denying immigration priorities to persons whose marriages do not meet that standard. That standard, embodied in the Congressional understanding of the terms "marriage" or "spouse" as those terms appear in the immigration statutes is, of course, the relevant standard to apply in exclusion or deportation proceedings brought under the statutory provisions appropriate. 320 F.2d at 905.

 In Faustino v. INS, 432 F.2d 429 (2d Cir. 1970), cert. denied, 401 U.S. 921, 91 S. Ct. 909, 27 L. Ed. 2d 824 (1971), we held that it was not unconstitutional for Congress to permit citizen children over the age of twenty-one to bring their alien parents into this country without regard to numerical quotas, but to deny that same privilege to citizen children under that age. Accord, Perdido v. INS, 420 F.2d 1179 (5th Cir. 1969). And in an analogous situation the District of Columbia Circuit upheld the application of one aspect of the Act's restrictive definition of child to the provision of the Act granting priority status to the sons and daughters of American citizens; *fn11" the effect of the holding was to deny the status of child, and hence the consequent statutory benefits, to aliens who were adopted by American citizens after their fourteenth birthdays. *fn12" Nazareno v. Attorney General of United States, supra.

 There is no doubt that Congress can establish classifications which result in the granting of benefits to one group of individuals, and their denial to another. Unless the immigration laws in question are wholly devoid of any conceivable rational purpose, *fn13" or are fundamentally aimed at achieving a goal unrelated to the regulation of immigration, *fn14" they are not unconstitutional encroachments on the right to equal protection of the laws.

 At the request of the Court the Legal Aid Society representing the plaintiffs submitted a most able and exhaustive post-trial memorandum demonstrating via statistical tables and many treatises its thesis that the "courts are giving increasing legal recognition to the reality that unwed fathers, like mothers, have close ties to their illegitimate children." (Post-Argument Memorandum, p. 17). From these statistics and extensive bibliography counsel draw the conclusion that "the evidence leaves no rational underpinning for discriminatory treatment of unwed natural fathers and their illegitimate children, and leaves no doubt of the patent unconstitutionality of the severe and extreme form of discrimination effectuated by the statutory provisions challenged herein." (Id. p. 21). These conclusions, plaintiffs say (Id. p. 1), demonstrate "the utter irrationality of the unwarranted conclusive presumptions effectuated by the challenged provisions . . ."

 However, in view of the need to establish administrative procedures abroad which can process immigration applications efficiently, avoid extremely difficult problems of investigation and proof, and minimize the potential for sham claims, we cannot say that the legislative decision to exclude unwed, biological fathers and their illegitimate children from the statutory definitions of parent and child is patently unreasonable. Cf. Faustino v. INS, supra. For example, while the names of biological mothers routinely appear on such documents as birth certificates, this may not be the case where unmarried fathers have not acknowledged paternity officially at about the time of birth. Although such evidence would not necessarily be conclusive of one's status as a parent, nevertheless we perceive that it might be more difficult for an unrelated adult to pose as a child's mother than a child's father, where the birth certificate contains a definite name and identification of the mother only.

 As a matter of law, therefore, the challenged immigration provisions are not so arbitrary or capricious as to be unconstitutional; accordingly, we conclude that plaintiffs' provocative statistics and ably documented argument, which certainly would merit Congress' attention, cannot be given weight here, lest this Court engage in the kind of policy-making activity which is properly the province of the legislative branch and not the judiciary.

 Plaintiffs urge that Congress' primary purpose in exempting the parents and children of American citizens and permanent residents from quota limitations and labor certification requirements was to enable families to be together in the United States. Without question, the policy behind the statutory enactments was a benevolent one; however, we cannot accept plaintiffs' unspoken assumption that they, and not Congress, should determine who constitutes the "family" which shall be allowed to enter this country on a priority basis. The statutory language is quite clear in its exclusion of unwed fathers and their illegitimate children; the fact that Congress focused upon the type of family which it determined should have the right to emigrate en masse to our shores *fn15" indicates that it may well have decided that, on balance, unwed fathers would not have such relations with their illegitimate children as would justify their being given this special exemption from the normal immigration requirements which apply to all other individuals seeking visas for permanent residency.

 Even if it be assumed arguendo that biological, unwed fathers should under all circumstances be accorded the rights of parents, plaintiffs' constitutional claim cannot prevail. The possibility of joining one's closest family in the United States is a privilege granted by statute, not a right given by the Constitution.


There can be no doubt but that [the appellants] as unadmitted and nonresident aliens have no constitutional right to enter and remain in this country. See Galvan v. Press, supra, 347 U.S. at 503-532, 74 S. Ct. 737. It is equally clear that their wives as resident aliens have no constitutional right to keep them here on the theory that the integrity of the family is protected by equal protection principles.


Noel v. Chapman, 508 F.2d 1023, 1027 (2d Cir. 1975).

 The same rule has been applied by this Court when the individual seeking to challenge an alien's expulsion was the alien's United States citizen-child. Enciso-Cardozo v. INS, 504 F.2d 1252, 1253 (2d Cir. 1974); cf. Faustino v. INS, supra. As we recognized in Noel v. Chapman, supra at 1027-8, the burden of separation from one's kin which occurs when an alien relative is properly excludable under our immigration laws and the American citizen or resident determines not to leave this country in order to be with the alien, is not the equivalent of the statutory destruction of the marriage or family relationship. Certainly a difficult choice is involved, but it is not one which is forbidden by the Constitution.

 Plaintiffs' final argument is that the operation of the Act's definition of parent and child works a constitutionally impermissible hardship on them. While we are not unmindful of plaintiffs' plight, we have held in the past that such incidental impact on the family as the operation of the immigration laws may have is not violative of the Constitution. Noel v. Chapman, supra; Enciso-Cardozo v. INS, supra; accord, Robles v. INS, 485 F.2d 100 (10th Cir. 1973); Silverman v. Rogers, 437 F.2d 102 (1st Cir. 1970); Perdido v. INS, 420 F.2d 1179 (5th Cir. 1969). The law is at times painful to some, but it cannot on that basis alone be automatically invalidated as to all.

 Consideration of the class action issue is unnecessary in the light of our decision.

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