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August 10, 1979

Irene DELGADO, Plaintiff,

The opinion of the court was delivered by: SOFAER

This is an action for judicial review of a decision of the New York District Director of the Immigration and Naturalization Service denying plaintiff's petition to obtain a preferential immigration classification for her alleged half-brother Luis Mack ("Luis"). The case is currently before the court on cross-motions for summary judgment. Fed.R.Civ.P. 56.

Under normal immigration procedures, aliens seeking to enter the United States as immigrants are issued immigrant visas based on the chronological order in which they qualify. 8 U.S.C. § 1153(a)(8). The Immigration and Nationality Act (INA), however, grants preferential status to applicants who are close relatives of United States citizens and permanent residents. The fifth preference under this scheme is granted to "brothers or sisters of citizens of the United States." 8 U.S.C. § 1153(a)(5). While neither "brother" nor" sister" is defined in the INA, these terms have been held to apply only in cases where both a petitioner and a beneficiary can demonstrate that each is a "child" of a common parent or parents within the meaning of Section 101(b)(1) of the Act. 8 U.S.C. § 1101(b)(1). See, e.g., Nazareno v. Attorney General, 168 U.S.App.D.C. 22, 512 F.2d 936, Cert. denied, 423 U.S. 832, 96 S. Ct. 53, 46 L. Ed. 2d 49 (1975); Beltre v. Kiley, 470 F. Supp. 87 (S.D.N.Y.1979). Section 101(b)(1) provides in relevant part:

The term "child" means an unmarried person under twenty-one years of age who is
(A) a legitimate child; or
(C) a child legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation.
(D) an illegitimate child, by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother . . .

 Petitioner, a native of the Dominican Republic, is a naturalized citizen of the United States. On May 25, 1977, petitioner filed a fifth preference petition on behalf of Luis with the New York District Office of the Immigration and Naturalization Service. *fn1" On June 19, 1977, the District Director denied the petition. The District Director found that petitioner and Luis, having the same father and different mothers, were illegitimate at birth and that neither had been subsequently legitimated as required by Section 101(b)(1) (C) of the INA. As a result, the District Director concluded that Luis was not petitioner's brother for purposes of obtaining an immigration preference. *fn2"

 Petitioner chose not to exercise her right to appeal to the Board of Immigration Appeals ("the Board"). 8 C.F.R. § 3.1(b)(5). Ordinarily, this would preclude judicial review, because a party must exhaust administrative remedies before challenging an agency's determination in court. See generally McKart v. United States, 395 U.S. 185, 193-94, 89 S. Ct. 1657, 23 L. Ed. 2d 194 (1969); 5 Mezines, Stein, & Gruff, Administrative Law § 49.01 Et seq. (1979); 3 K. Davis, Administrative Law Treatise § 20.01 Et seq. (1958). In this case, however, it seems entirely appropriate to reach the merits of petitioner's claims, since it is clear how the Board would have decided them. Thus, with respect to petitioner's claim that the applicable INA sections violate equal protection, the Board would have undoubtedly held that Fiallo v. Bell, 430 U.S. 787, 97 S. Ct. 1473, 52 L. Ed. 2d 50 (1977), precludes the challenge. Furthermore, the Board has repeatedly rejected claims identical to petitioner's second contention that Luis, who was acknowledged by his father pursuant to Law 985 of the Dominican Republic, was thus legitimated in accordance with Section 101(b)(1)(C) of the INA. See, e.g., Matter of Reyes, Interim Decision 2641 (BIA 1978). *fn3" The Board's consistent interpretation of Law 985 as a practical matter foreclosed petitioner from gaining relief on administrative appeal. Petitioner therefore had no available administrative "remedy" under the law. See Beltre v. Kiley, supra ; 5 Mezines, Stein, & Gruff, Supra, §§ 49.02(1) and (4).

 The Government contends, however, that by not appealing petitioner denied the Board the opportunity to review the evidentiary determination that she, too, was illegitimate. But would the Board have considered the issue of petitioner's status had she appealed? It is true that full exhaustion of administrative remedies enables an agency "to perform functions within its special competence to make a factual record, to apply its expertise, and to correct its own errors so as to moot judicial controversies." Parisi v. Davidson, 405 U.S. 34, 37, 92 S. Ct. 815, 818, 31 L. Ed. 2d 17 (1972). But since the Board's settled position on Law 985 would have been dispositive of the case, it seems dubious to presume that the Board would nevertheless have focused on an issue with no effect on its ultimate decision. Even had the Board considered the question, it would certainly have affirmed the District Director's conclusions. The possibility that the Board would have remanded to develop a record, 8 C.F.R. § 3.1(d)(2), or would have decided the issue of petitioner's status on the existing record in any way but unfavorably to petitioner, is too remote to require an appeal to the Board in this case.

 We therefore turn to the merits. Petitioner claims, first, that the INA, by classifying the offspring of a common mother as "children" regardless of legitimacy, while requiring the legitimation of illegitimate offspring of a common father, violates equal protection. This claim is entitled to no more credence here than it would have received from the Board. In Fiallo v. Bell, 430 U.S. 787, 97 S. Ct. 1473, 52 L. Ed. 2d 50 (1977), the Supreme Court rejected a virtually identical claim. There, appellants were "three sets of unwed natural fathers and their illegitimate offspring who sought, either as an alien father or an alien child, a special immigration preference by virtue of a relationship to a citizen or resident alien." 430 U.S. at 790, 97 S. Ct. at 1477. They claimed, as petitioner does here, that the distinctions made between mothers with illegitimate children and fathers with illegitimate children violated equal protection. *fn4"

 Petitioner argues that Fiallo should be reconsidered in light of Caban v. Mohammad, 441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979), in which the Supreme Court held that an unwed father could not be deprived of the right accorded by New York law to an unwed mother to intervene in an adoption proceeding. This more recent decision, petitioner contends, reflects a change of attitude by the Court. Not so. Fiallo rests on the extremely limited review permitted by the Constitution of Congress' power to regulate immigration. Caban presented the Court with the issue of unequal treatment of men in a context totally free of any expression on immigration by Congress. No basis exists to justify a reevaluation of Fiallo by a lower court.

 Far more substantial is petitioner's claim that INS has improperly interpreted Section 101(b)(1) of the INA. One basis for denying petitioner relief was that her alleged half-brother, Luis, who was acknowledged under Law 985 of the Dominican Republic, was not properly legitimated. The Board has flatly held that acknowledgment under Law 985 of the Dominican Republic is not legitimation within the meaning of Section 101(b)(1)(B). See, e.g. Matter of Reyes, supra. See also, Peignand v. Immigration and Naturalization Service, 440 F.2d 757 (1st Cir. 1971). This conclusion is based on the fact that under Law 985, should the parent die intestate, an acknowledged child can inherit only fifty percent of the share of a child legitimate at birth, even though, in all other respects, a child acknowledged under the Dominican law has the full rights of a legitimate child. *fn5" The Government, in support of the Board's position, argues that this difference in inheritance rights would increase the likelihood for fraudulent immigration should acknowledgment under Law 985 be treated as legitimation.

 The scope of review in this case, is, of course, narrowly circumscribed. Granting preference visas is within the discretion of the Service, and the courts will not reverse its decisions unless there has been an abuse of that discretion. See, e.g., Nazareno v. Attorney General, supra; Song Jook Suh v. Rosenberg, 437 F.2d 1098, 1102 (9th Cir. 1971); Ishak v. District Director, Immigration and Naturalization Service, United States Department of Justice, 432 F. Supp. 624, 625 (N.D.Ill.1977); Maggiore Bakery, Inc. v. Esperdy, 238 F. Supp. 374, 375 (S.D.N.Y.1964). An abuse will be found only when there is no evidence to support a decision, or when a decision is based on an improper understanding of the law. See, e.g., Song Jook Suh v. Rosenberg, supra; Ishak v. District Director, Immigration and Naturalization Service, United States Department of Justice, supra. Even as to pure questions of law, the Service is entitled to a review tempered by respect for the Service's expertise in interpreting and administering the INA. See, e.g., Nazareno v. Attorney General, supra, 512 F.2d at 940.

 Despite these precatory standards, the Board's rulings with respect to Law 985 are questionable. It hardly seems likely that persons will more readily lend themselves to fraudulent legitimations because their fraudulently acknowledged "children" would thereby be entitled to only half the inheritance of a natural child in an intestate distribution. *fn6" Furthermore, even assuming a significant number of fraudulent "parents" could in theory be affected by a difference in the acknowledged child's right to inherit intestate, what possible basis short of pure speculation could justify the ...

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