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Santos v. Immigration and Naturalization Service

decided: September 30, 1982.

DOMINGO ANTONIO DE LOS SANTOS, PLAINTIFF-APPELLANT,
v.
IMMIGRATION AND NATURALIZATION SERVICE, DEFENDANT-APPELLEE



Appeal from a final judgment of the United States District Court for the Southern District of New York, Robert J. Ward, Judge, 525 F. Supp. 655, dismissing complaint seeking preferential immigration classification pursuant to 8 U.S.C. § 1153(a) (2) (1976). Affirmed.

Kearse and Pierce, Circuit Judges, and Leval,*fn* District Judge.

Author: Kearse

KEARSE, Circuit Judge:

Plaintiff Domingo Antonio de los Santos ("Domingo"), a citizen of the Dominican Republic and a lawful permanent resident of the United States, appeals from a final judgment*fn1 of the United States District Court for the Southern District of New York, Robert J. Ward, Judge, dismissing his complaint seeking reversal of a ruling by defendant Immigration and Naturalization Service ("INS") that denied preferential immigration status for Enmanuel de los Santos ("Enmanuel") as Domingo's son under §§ 101(b) (1) (C) and 203(a) (2) of the Immigration and Nationality Act ("Act"), 8 U.S.C. §§ 1101 (b) (1) (C), 1153(a) (2) (1976). Section 203(a) (2) grants preferential status to, inter alios, the legitimate and legitimated children of lawful permanent residents of the United States. Enmanuel, a citizen and resident of the Dominican Republic, was born in 1957 out of wedlock. On the basis of undisputed facts, the district court concluded that Enmanuel had not been legitimated within the meaning of § 101(b) (1) (C) of the Act and granted summary judgment dismissing Domingo's complaint. We affirm substantially for the reasons stated in the opinion of the district court, reported at 525 F. Supp. 655.

BACKGROUND

Under the complex statutory scheme governing the admission of aliens seeking to immigrate to the United States,*fn2 one of the groups given immigration priority is composed of "the spouses, unmarried sons or unmarried daughters of an alien lawfully admitted for permanent residence." 8 U.S.C. § 1153(a) (2). Although the Act contains no definition of "son" or "daughter," these terms are construed to mean that the prospective immigrant must be the "child" of the permanent resident alien. See, e.g., Lau v. Kiley, 563 F.2d 543, 545 (2d Cir. 1977). The statutory definition of "child" includes certain illegitimate offspring. Section 101(b) (1) (C) of the Act provides that an individual born out of wedlock is a "child" if he or she 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).*fn3 INS has interpreted the word "legitimated" to refer to a child born out of wedlock who has been accorded legal rights that are identical to those enjoyed by a child born in wedlock. See, e.g., Matter of Reyes, Interim Decision No. 2822 (BIA 1980); Matter of Clahar, Interim Decision #2643, 16 I&N 484 (BIA 1978); Matter of Remy, Interim Decision #2160, 14 I and 183 (BIA 1972).*fn4

The law of the Dominican Republic provides two means by which the illegitimate status of a child born out of wedlock may be altered. First, in a process called "legitimate filiation," the child may be legitimated by the subsequent marriage of his parents if they have acknowledged the child prior to or in the act of their marriage:

Children born out of wedlock who are not the offspring of incestuous or adulterous unions, may be legitimated by the subsequent marriage of their parents in the cases where they have legally acknowledged them prior to or in the act of their marriage.

Dominican Civil Code [DCC] art. 331. DCC art. 333 provides that children legitimated in this fashion "shall enjoy the same rights and benefits of legitimate children." Second, an illegitimate child may be "naturally filiated":

With respect to the mother a natural filiation is established by the sole fact of birth.

With respect to the father, it is established by acknowledgment or by ...


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