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April 9, 1979

Luis Oscar BELTRE, on behalf of himself and all persons similarly situated, Plaintiff,
Maurice KILEY, Griffin B. Bell, Leonel J. Castillo, Cyrus Vance, Defendants

The opinion of the court was delivered by: SWEET

This is an action for judicial review of a decision of the New York office of the District Director of the Immigration and Naturalization Service ("District Director") denying plaintiff's petition to obtain a preferential immigration classification for his illegitimate half-brother, Jose Beltre ("Jose"). This classification would enable Jose to obtain a visa to enter the United States. The case is currently before the court on cross motions for summary judgment, Fed.R.Civ.P. 56.

The Immigration and Nationality Act at 8 U.S.C. § 1153(a) (the "Act") grants entry to immigrants from independent countries in the Western Hemisphere under a seven-tier classification system that gives preferential status to close relatives of United States citizens and permanent residents. Section 203(a)(5) of the Act, 8 U.S.C. § 1153(a)(5) ("s 203(a)(5)") allocates one preference category to "immigrants who are the brothers or sisters of citizens of the United States." Id.

 In 1976 plaintiff, an emigrant from the Dominican Republic who is now a naturalized citizen of the United States, filed a visa petition with the District Director. The petition sought to classify Jose, a citizen of the Dominican Republic, as plaintiff's "brother" and thus make Jose eligible for the § 203(a)(5) preference classification. The District Director denied plaintiff's petition, finding that Jose did not qualify as plaintiff's "brother" for purposes of § 203(a)(5). The District Director construed the term "brother" to incorporate the definition of "child" in § 101(b)(1) of the Act, 8 U.S.C. § 1101(b)(1) ("s 101(b)(1)"). He ruled, in effect, that an alien seeking to obtain a preference classification as a "brother" of a United States citizen under § 203(a)(5) must establish that he and the United States citizen are "children" of their common parent(s) within the meaning of § 101(b)(1).

 Section 101(b)(1) defines a "child" as an unmarried person under 21 years of age who meets specified conditions. Included within this definition are a legitimate or legitimated child, a stepchild, an adopted child, and an illegitimate child seeking a preference by virtue of his relationship to his natural mother. 8 U.S.C. §§ 101(b)(1)(A)-(E). This definition does not extend to an illegitimate offspring who seeks a preference by virtue of his relationship to his natural father. See Fiallo v. Bell, 430 U.S. 787, 97 S. Ct. 1473, 52 L. Ed. 2d 50 (1977).

 The District Director ruled that Jose was not the "child" of his and plaintiff's common parent and therefore could not take advantage of his sibling relationship under § 203(a)(5). Jose and plaintiff are related through their father. Thus, to obtain a preference classification as plaintiff's brother, the illegitimate Jose would rely on his relationship to his father. Because of this relationship, Jose could not satisfy the definition of "child" found in § 101(b)(1).

 Following the District Director's decision, plaintiff commenced the action now before this court. In their motions, the opposing parties raise two issues. First, defendant alleges that plaintiff's failure to exhaust his administrative remedies deprives this court of subject matter jurisdiction to review the District Director's decision. Second, the parties dispute the reasonableness of the District Director's incorporation of the § 101(b)(1) definition of "child" into the term "brother".

 This court finds that it has jurisdiction over this action and that the District Director's construction of the term "brother" is reasonable. Defendant's motion for summary judgment must therefore be granted.

 In denying the visa petition that plaintiff filed on behalf of Jose, the District Director advised plaintiff of his right to appeal the decision to the Board of Immigration Appeals ("Board") pursuant to 8 C.F.R. § 204.1(a) and 8 C.F.R. § 3.1(b)(5). Rather than pursuing this administrative appeal, plaintiff seeks direct judicial review of the District Director's decision.

 As a rule, a party must exhaust his administrative remedies before seeking review of an administrative determination. See e.g., McKart v. United States, 395 U.S. 185, 193, 89 S. Ct. 1657, 23 L. Ed. 2d 194 (1969); Aircraft and Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 767, 67 S. Ct. 1493, 91 L. Ed. 1796 (1947). This principle advances a number of well established policies, including the efficiency of giving an administrative agency the opportunity to resolve controversies in its areas of expertise. *fn1"

 Plaintiff seeks an exemption from this rule, alleging that an appeal to the Board would be futile as a matter of law. He maintains that the Board has no power to alter the District Director's decision incorporating the § 101(b)(1) definition of "child" into the term "brother" in § 203(a)(5) because the decision is based upon and embodied within a regulation of the Attorney General, 8 C.F.R. § 204.2(c)(4). *fn2" The Board, he correctly argues, exists only by virtue of these regulations, 8 C.F.R. Part 3, is bound by them, and has no authority to consider challenges to them. *fn3"

 The Board could not alter the District Director's decision without challenging Regulation § 204.2(c)(4). The Regulation requires that a United States citizen who files a petition to classify an alien as his brother or sister must submit marriage certificates of his and the alien's parents when he and the alien share only a common father. *fn4" Implicit in this is the requirement that a United States citizen and alien who share a common father must show that they are legitimate children when they seek to classify the alien as a brother under § 203(a)(5). In other words, to qualify as "brothers" for a § 203(a)(5) preference, it is necessary under the Regulation that the citizen and alien satisfy the definition of "child" found in § 101(b)(1).

 Because the Board does not have the authority to challenge the Attorney General's regulations, an appeal by plaintiff to the Board would be futile. In exempting plaintiff from the exhaustion requirement, this court follows the position of the Second Circuit set forth in Tai Mui v. Esperdy, 371 F.2d 772 (2d Cir. 1966), Cert. denied, 386 U.S. 1017, 87 S. Ct. 1372, 18 L. Ed. 2d 454 (1967), in which the Honorable Henry J. Friendly held that a petitioner need not exhaust a futile administrative review procedure prior to seeking District Court review of a District Director's decision. Id. at 778.

 Further, the record of the Board's decisions on the issue of incorporating the definition of "child" into the term "brother" would make an administrative appeal futile in a practical dense. The Board has been consistent in its opinions involving this issue, particularly since the adoption of Regulation § 204.2(c)(4) in 1965. *fn5" Only one case since that date has been brought to the court's attention in which the Board ruled that the definition of "child" did not apply to the term "brother". *fn6" That decision was later specifically overturned. *fn7" Therefore, there is no need to give the Board the opportunity to clear up any confusion in this area *fn8" because no such confusion exists.

 For the above reasons, this court has subject matter jurisdiction over plaintiff's action. We turn next ...

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