Reyes v. IMM. & NATURALIZATION SERV.

• Decision Date: 18 October 1979
• Docket Number: No. 78 C 2210.,78 C 2210.
• Parties: Virgilio REYES, Plaintiff, v. IMMIGRATION AND NATURALIZATION SERVICE, Defendant.
• Court: U.S. District Court — Eastern District of New York

478 F. Supp. 63

Virgilio REYES, Plaintiff, v. IMMIGRATION AND NATURALIZATION SERVICE, Defendant.

No. 78 C 2210.

United States District Court, E. D. New York.

October 18, 1979.

Antonio C. Martinez, by Peter Hirsch, New York City, for plaintiff.

Edward R. Korman, U.S. Atty., E.D.N.Y., Brooklyn, N.Y., by Elaine C. Buck, Asst. U.S. Atty., Brooklyn, N.Y., for defendant.

MEMORANDUM DECISION AND ORDER

SIFTON, District Judge.

This is an action for judicial review of a decision of the Immigration and Naturalization Service ("INS") denying plaintiff's petition to obtain a preferential immigration classification for his alleged acknowledged son, Joselito. The case is currently before the Court on cross-motions for summary judgment pursuant to 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 (the "Act"), however, grants preferential status to applicants who are close relatives of United States citizens and permanent residents. The second preference under this scheme is granted to "unmarried sons or daughters of permanent resident aliens." 8 U.S.C. § 1153(a)(5). In order to qualify for this preference, Joselito Reyes must prove that he is a "child" of plaintiff 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 (D.C.Cir.), cert. denied, 423 U.S. 832, 96 S.Ct. 53, 46 L.Ed.2d 49 (1975). 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 ; or

(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."

Plaintiff, a native of the Dominican Republic, is a permanent resident alien in the United States. On March 18, 1977, plaintiff filed a second preference petition on behalf of Joselito with the New York District Office of the Immigration and Naturalization Service. On August 16, 1977, the District Director denied the petition. An appeal to the Board of Immigration Appeals was denied on March 20, 1978.

The INS found that, because the rights of an acknowledged child under Dominican law are not coextensive with those of a legitimate child, an acknowledged child was not legitimated within the meaning of § 101(b). The only difference between an acknowledged child and a legitimate child under Dominican law is that an acknowledged child has lesser succession rights when there are both acknowledged and legitimate children. See Matter of Hernandez, Interim Decision 2712 (INS June 21, 1979); Matter of Sanchez, Interim Decision 2687 (INS Jan. 30, 1979). The INS did not state how this distinction is related to the purposes of the Act.

Because plaintiff has exhausted his administrative remedies, his case is ripe for decision by this Court.

The scope of review in this case is, of course, narrowly circumscribed. Granting preference visas is within the discretion of the INS, 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, supra. Even as to pure questions of law, the INS is entitled to a review tempered by respect for the INS' expertise in interpreting and admininistering the Act. See, e. g., Nazareno v. Attorney General, supra at 940.

In support of this motion for summary judgment, plaintiff argues, first, that the Act, 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 the constitutional requirements of equal protection; and second, that the decision of the INS in the present case is inconsistent with its prior decision in Matter of Lee, Interim Decision 2606 (August 18, 1977).

Plaintiff's claim that § 101(b) is unconstitutional because it treats illegitimate children differently depending on whether the priority is claimed through the father or the mother must be rejected in light of the Supreme Court's decision in Fiallo v. Bell, 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977). Fiallo was based on the broad congressional power over immigration and is not affected by the subsequent decision of the court in Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979). See Delgado v. Immigration and Naturalization Service, 473 F.Supp. 1343 (S.D.N. Y.1979).

The Court finds more persuasive the claim of plaintiff that the decision of the INS in the present case is inconsistent with the decision in Matter of Lee, supra. In Lee, the INS held that a recognized child under Korean law is a legitimate child under § 101(b) of the Act. A recognized child under Korean law has most, but not all of the rights of the legitimate child under Korean law. A recognized child has a lesser priority in determining who shall succeed to the title of "Head of the Family."¹ The INS found that the title of "Head of Family" "is entirely foreign to...