525 F.Supp. 655 (S.D.N.Y. 1981), 78 Civ. 6005, de los Santos v. Immigration and Naturalization Service

Docket Nº:78 Civ. 6005 (RJW).
Citation:525 F.Supp. 655
Party Name:Domingo Antonio de los SANTOS, Plaintiff, v. IMMIGRATION AND NATURALIZATION SERVICE, Defendant.
Case Date:October 28, 1981
Court:United States District Courts, 2nd Circuit

Page 655

525 F.Supp. 655 (S.D.N.Y. 1981)

Domingo Antonio de los SANTOS, Plaintiff,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Defendant.

No. 78 Civ. 6005 (RJW).

United States District Court, D. New York

Oct. 28, 1981

Page 656

Antonio C. Martinez, New York City, for plaintiff; Peter Hirsch, New York City, of counsel.

John S. Martin, Jr., U.S. Atty., S.D. N. Y., New York City, for defendant; Thomas H. Belote, Sp. Asst. U.S. Atty., New York City, of counsel.

ROBERT J. WARD, District Judge.

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. ss 1101-1503. In his complaint herein, plaintiff seeks a declaratory judgment that Enmanuel de los Santos has indeed been "legitimated"

Page 657

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" 1 or as an "immediate relative" of a United States citizen, 2 the applicant is subject to

Page 658

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. s 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. s 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. s 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 s 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. s 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. s 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. s 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). 3 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.

Page 659

s 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. s 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. s 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. 4

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...

To continue reading

FREE SIGN UP