The opinion of the court was delivered by: MACMAHON
MacMAHON, District Judge.
Defendant moves, and plaintiff cross-moves, for summary judgment, pursuant to Rule 56, Fed.R.Civ.P., in this action for a declaratory judgment. The facts narrated below have been stipulated. The action is, therefore, ripe for summary judgment.
Plaintiff, Chin Lau,
filed a petition with the New York district director of the Immigration and Naturalization Service ("INS"), pursuant to Section 204 of the Immigration and Nationality Act (the "Act"),
for a visa granting a preference status to Kin Kok Lau, as his alleged unmarried son, under Section 203(a)(2) of the Act.
The petition alleged that, while residing in China, Chin Lau cohabited with, but never married, a woman named Chung Dung You. Allegedly Kin Kok Lau was born from this relationship on June 16, 1952, in Hoksan, Kwongtung, People's Republic of China. Plaintiff submitted evidence to INS to substantiate his claim that Kin Kok Lau is entitled to a visa preference as his unmarried son.
The district director denied the petition on February 28, 1974 on the ground that Kin Kok Lau was statutorily ineligible for a preference because he was illegitimate at birth and was never legitimated thereafter.
Plaintiff appealed to the Board of Immigration Appeals (the "Board"). The Board dismissed the appeal on October 23, 1974, holding that:
(1) in order to qualify as a "son" for preference under Section 203(a)(2) of the Act, the beneficiary of the visa petition must once have qualified as a "child" of petitioner under Section 101(b)(1) of the Act
and that the burden of establishing the existence of that relationship rests upon petitioner;
(2) there was no evidence to indicate that the paternity of Kin Kok Lau was ever "legally established" under Article 15 of the Marriage Law of the People's Republic of China and that, therefore, he was not the legitimate or legitimated son of petitioner under the law of the child's domicile; and
(3) in the absence of such evidence, Kin Kok Lau did not qualify for a preference under Section 203(a)(2) of the Act.
Plaintiff now seeks a declaratory judgment that the Board erred as a matter of law in denying plaintiff's petition. In the alternative, plaintiff claims that Section 101(b)(1)(D) of the Act
violates the equal protection guarantee of the Fifth Amendment in that it permits an illegitimate child to obtain a visa preference through his relationship to his natural mother, but not through his relationship to his natural father.
Section 203(a)(2) of the Act grants a preference status to the "unmarried sons or unmarried daughters of an alien lawfully admitted for permanent residence." Such a preference gives the beneficiary a priority for consideration by a United States Consulate for the issuance of an immigrant visa ahead of other similarly situated aliens.
In order to qualify for a preference as a "son" under Section 203(a)(2), the beneficiary must have once qualified as the "child" of the petitioner, as defined in Section 101(b)(1),
which provides, in pertinent part:
"The term 'child' means an unmarried person under twenty-one ...