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DE LOS SANTOS v. INS

October 28, 1981

Domingo Antonio de los SANTOS, Plaintiff,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Defendant



The opinion of the court was delivered by: WARD

This action seeks review of an administrative determination made by defendant, the Immigration and Naturalization Service ("the INS"). The case involves a petition to obtain a preferential immigration classification filed by plaintiff Domingo Antonio de los Santos on behalf of one Enmanuel de los Santos. Plaintiff contends that the INS erroneously denied this petition because it incorrectly concluded that Enmanuel de los Santos has not been "legitimated" within the meaning of the Immigration and Nationality Act ("the INA"), 8 U.S.C. §§ 1101-1503. In his complaint herein, plaintiff seeks a declaratory judgment that Enmanuel de los Santos has indeed been "legitimated" within the meaning of the INA, and asks the Court to remand this action to the INS with directions to grant plaintiff's petition. Plaintiff now moves for summary judgment pursuant to Rule 56(a), Fed.R.Civ.P. Defendant cross-moves for summary judgment pursuant to Rule 56(b), Fed.R.Civ.P. For the reasons hereinafter stated, plaintiff's motion is denied, defendant's cross-motion is granted, and the Court grants summary judgment in favor of defendant.

BACKGROUND

The facts necessary to decide the motions presently before the Court are undisputed. Plaintiff is a native and citizen of the Dominican Republic. He entered the United States on April 22, 1969, and is presently lawfully admitted for permanent residence in the United States. Enmanuel de los Santos was born in the Dominican Republic, where he presently resides, on October 3, 1957. Plaintiff and Enmanuel de los Santos' mother have never been married. However, eight days after Enmanuel de los Santos' birth, plaintiff acknowledged the infant as his natural son in a certificate filed with the Civil Registry of the Municipality of Salcedo, a city located in the Dominican Republic. Enmanuel de los Santos presently desires to immigrate into the United States, to which end plaintiff has sought an immigration visa from the INS on his behalf. On September 30, 1977, plaintiff filed a petition with the INS seeking to have Enmanuel de los Santos granted a preferential immigration classification. In a decision dated July 14, 1978, the INS denied plaintiff's petition. Plaintiff appealed this decision to the Department of Justice's Board of Immigration Appeals. The Board of Immigration Appeals, in a memorandum dated November 14, 1978, dismissed the appeal as frivolous. This action, and the motion and cross-motion that are the subject of today's decision, followed.

 DISCUSSION

 As noted, Enmanuel de los Santos seeks admission to the United States as an "immigrant," that is, as a permanent resident of the United States. The INA imposes certain numerical limitations on the number of immigrants that may be admitted to the United States in any particular year, and hence on the number of immigration visas that the INS may issue. Unless an applicant for an immigration visa can establish that he or she is exempt from the numerical limitations either as a "special immigrant" *fn1" or as an "immediate relative" of a United States citizen, *fn2" the applicant is subject to these numerical limitations. Presently, the INA provides that no more than 270,000 immigrants may be admitted during any given fiscal year, 8 U.S.C. § 1151(a), and that no more than 20,000 of the immigrants admitted during a particular fiscal year may be from a single foreign state. 8 U.S.C. § 1152(a). Here, it is conceded that Enmanuel de los Santos does not qualify either as a "special immigrant" or as an "immediate relative" of a United States citizen within the meaning of the INA, meaning that he is subject to the INA's numerical limitations.

 The INA contains a rather complicated system for determining, in the event the number of eligible applicants exceeds the numerical limitations, which applicants shall be issued immigration visas. Generally, the applicants fall within two categories: those who qualify for one of six "immigration preferences," and those who do not. An applicant is presumed to fall in the nonpreference group unless the applicant demonstrates that he or she qualifies for one of the six preferences. 8 U.S.C. § 1153(d). Nonpreference applicants are admitted, to the extent the annual limitation of 270,000 immigrants has not been exhausted by admissions from the six preference categories, in the order in which they qualify for immigrant status. 8 U.S.C. 1153(a)(7). Nonpreference visas have been unavailable since mid-1978 due to demand in the preference categories, and projections are that they will remain unavailable indefinitely. National Lawyers Guild, Immigration Law and Defense § 4.6(h) (1979). Realistically, then, an eligible alien can hope to gain an immigration visa only if the alien can make the requisite showing to the INS that he or she qualifies for a preferential immigration classification.

 The petition filed with the INS on behalf of Enmanuel de los Santos contends that he qualifies for the second of the six preference categories. This preference authorizes the INS to issue 70,200 immigration visas each fiscal year to "qualified immigrants who are the spouses, unmarried sons or unmarried daughters of an alien lawfully admitted for permanent residence." 8 U.S.C. § 1153(a)(2). The petition filed on behalf of Enmanuel de los Santos argues that he is the unmarried son of Domingo Antonio de los Santos, the plaintiff herein; since plaintiff is an alien lawfully admitted for permanent residence in the United States, the petition concludes that Enmanuel de los Santos is qualified for the second preference category.

 The legal principles that govern the determination of this petition are, for the most part, not disputed. The issue is whether Enmanuel de los Santos is the "son" of Domingo Antonio de los Santos within the meaning of 8 U.S.C. § 1153(a)(2). Enmanuel de los Santos can only be the "son" of Domingo Antonio de los Santos if he is Domingo Antonio de los Santos' "child," as that term is defined by section 101(b)(1) of the INA, 8 U.S.C. § 1101(b)(1). Lau v. Kiley, 563 F.2d 543, 545 (2d Cir. 1977); Reyes v. INS, 478 F. Supp. 63, 64 (E.D.N.Y.1979). *fn3" Since Enmanuel de los Santos is concededly illegitimate, and seeks qualification for the second preference category on the basis of his relationship with his father, the question whether he is a "child" within the meaning of the INA is governed by section 101(b)(1)(C) of the INA, 8 U.S.C. § 1101(b)(1)(C) ("Section 101(b)(1)(C)"). Section 101(b)(1)(C) provides that the term "child" means an unmarried person under twenty-one years of age who has been

 
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.

 8 U.S.C. § 1101(b)(1)(C). Section 101(b)(1)(C) thus sets forth a two-part test for determining when an illegitimate child seeking priority through his or her father will be eligible for a preferential immigration classification: (1) the child must have been "legitimated" under the law of either the child's or the father's residence or domicile; and (2) the "legitimation" must have occurred (a) before the child reached the age of eighteen and (b) at a time when the child was in the legal custody of the legitimating parent or parents.

 Under the INS's interpretation of Section 101(b)(1)(C), an illegitimate child has been "legitimated" within the meaning of Section 101(b)(1)(C) only if that child has the attributes of a legitimate child in all respects. Application of this interpretation to the case of Enmanuel de los Santos required the INS to analyze the law of the Dominican Republic, the domicile of Enmanuel de los Santos, in order to determine whether, as a matter of Dominican Republic law, he enjoys the same rights as he would had he been born a legitimate child. The INS concluded the Enmanuel de los Santos, being a child who has been acknowledged by his father but whose parents have not subsequently married, does not have the full rights of a legitimate child under Dominican Republic law. The only difference is that, if Domingo Antonio de los Santos at some point fathers a legitimate child, and then dies intestate, Enmanuel de los Santos will receive only fifty percent of the share of the estate that he would have received had he been born a legitimate child. As a result of this difference, the INS concluded that plaintiff's acknowledgment of Enmanuel de los Santos did not confer upon him the attributes of a legitimate child in all respects, and therefore held that Enmanuel de los Santos has not been "legitimated," and thus is not a "child," within the meaning of Section 101(b)(1)(C). On this basis alone, the INS determined that Enmanuel de los Santos is not entitled to the preferential immigration classification set forth by 8 U.S.C. § 1153(a)(2), and denied plaintiff's petition. The INS accordingly had no occasion to consider whether the "legal custody" prong of the two-part Section 101(b)(1)(C) test has been satisfied in regard to Enmanuel de los Santos. *fn4"

 Plaintiff, in this action, challenges the INS's denial of his petition on two grounds. First, plaintiff contends that the INS, by holding that an illegitimate child must possess legal rights that are coextensive with those of a legitimate child in order to qualify for the second preference category set forth in the INA, incorrectly interpreted the term "legitimated" as used in Section 101(b)(1)(C). Second, plaintiff argues that, if the INS did correctly interpret Section 101(b)(1)(C), the statute violates the United States Constitution because of the distinction that it draws between fathers and mothers of illegitimate children. The principles that govern this Court's review of the INS's decision are familiar. The decision to grant or deny a petition to obtain a preferential immigration classification is one that is within the discretion of the INS and that will be reversed by the courts only upon a showing of an abuse of discretion. Santana-Figueroa v. INS, 644 F.2d 1354, 1355 (9th Cir. 1981); Nazareno v. Attorney General of the United States, 168 U.S. App. D.C. 22, 512 F.2d 936, 939-40 (D.C.Cir.), cert. denied, 423 U.S. 832, 96 S. Ct. 53, 46 L. Ed. 2d 49 (1975); Mohomed v. Vician, 490 F. Supp. 954, 957 (S.D.N.Y.1980). In applying this abuse of discretion standard, the courts have held that the INS's findings of fact are conclusive if "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Bastidas v. INS, 609 F.2d 101, 104 (3d Cir. 1979); see Wong Wing Hang v. INS, 360 F.2d 715, 717 (2d Cir. 1966). At the same time, the courts may engage in plenary review of questions of law, including questions of statutory construction and interpretation. Tovar v. INS, 612 F.2d 794, 797 (3d Cir. 1980). Having these principles in mind, the Court turns to plaintiff's two arguments that the INS erroneously denied his petition that Enmanuel de los Santos be granted a preferential immigration classification.

 Plaintiff's Statutory Argument

 The statutory question posed by plaintiff is simply whether, as the INS contends, an illegitimate child has been "legitimated" within the meaning of Section 101(b)(1)(C) only if the child has, by operation of the law of either the child's or the father's domicile, received filial rights that are coextensive with those enjoyed by legitimate children. Because plaintiff's argument does not challenge any finding of fact made by the INS, the Court is entitled to subject the INS's determination of this question to a full review.

 Several courts of this Circuit have had occasion to consider this question, albeit only in dictum. In Roman v. Watson, No. 71 Civ. 4905(CHT) (S.D.N.Y. May 13, 1976), each plaintiff had sought a preferential immigration classification on behalf of an illegitimate child. The Department of State denied all the requests, on the ground that the children in question, while they had been acknowledged by their putative fathers, did not enjoy all the rights of legitimate children and thus had not been "legitimated" within the meaning of Section 101(b)(1)(C). When plaintiffs sought a writ of mandamus in the district court, Judge Tenney dismissed plaintiffs' complaint on the ground that they had failed to show, as required by the second prong of the Section 101(b) (1)(C) test, that the children in question were in plaintiffs' legal custody when and if they were legitimated. Slip op. at 6. He then went on to comment that the INS's interpretation of the term "legitimated" in Section 101(b)(1) (C) "appear(ed to be) justified." Id. at 10. On the other hand, the principle that "legitimation" can occur only when an illegitimate child obtains filial rights that are coextensive with those of a legitimate child has been rejected, in dictum, by two courts of this Circuit. Reyes v. INS, supra, 478 F. Supp. at 65-66; Delgado v. INS, 473 F. Supp. 1343, 1348 (S.D.N.Y.1979). These courts reasoned that the interpretation of Section 101(b)(1)(C) espoused by the INS is insufficiently responsive to the statutory policy that "fraudulent children" should not be issued immigration visas to justify the extent to which the rule undermines the statutory goal of reuniting bona fide families. See Reyes v. INS, supra, 478 F. Supp. at 66 (quoting Delgado v. INS, supra, 473 F. Supp. at 1348).

 Existing judicial precedent thus provides the Court with no clear direction for resolving the question before it. Under these circumstances, the Court believes that the best course is to treat this question as one of first impression, and hence to ascertain the meaning of "legitimated" as used in Section 101(b)(1)(C) by reference to the traditional guideposts to statutory interpretation, namely, the language and administrative interpretations of Section 101(b)(1)(C), the legislative history of Section 101(b)(1)(C), the prevailing interpretations of statutes closely related to Section 101(b)(1)(C), and the general purposes that underly the INA's provisions for the granting of ...


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