Kaliski v. District Director of Immigration and Naturalization Service
| Decision Date | 30 May 1980 |
| Docket Number | No. 78-1714,78-1714 |
| Citation | 620 F.2d 214 |
| Parties | Vasa KALISKI, Petitioner-Appellee, v. DISTRICT DIRECTOR OF IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Dzintra I. Janavs, Asst. U. S. Atty., Los Angeles, Cal., for respondent-appellant.
William Lew Tan, Los Angeles, Cal., argued for petitioner-appellee; Hiram W. Kwan, Los Angeles, Cal., on brief.
Appeal from the United States District Court for the Central District of California.
Before KENNEDY and SCHROEDER, Circuit Judges, and SOLOMON, * District Judge.
The Immigration and Naturalization Service (INS) appeals from the judgment of the district court approving a preferential visa petition filed by appellee Vasa Kaliski on behalf of his son Milivoj who was born out of wedlock in Yugoslavia in 1934. We affirm.
In January 1973, Kaliski filed a petition for a preferential immigrant visa for his son. INS rejected the petition because Milivoj was born out of wedlock, and because there was no evidence that he was legitimated under Yugoslav law before his eighteenth birthday as required by the Immigration and Nationality Act (Act), 8 U.S.C. § 1101 et seq. The Board of Immigration Appeals (Board) affirmed the rejection. The district court, on a petition for review, reversed the decision of the INS on the ground that Milivoj was legitimated under California law before his eighteenth birthday.
Section 201 of the Act, 8 U.S.C. § 1151, sets a quota on the number of immigrant visas allowed for each fiscal year. Within the quota are seven categories of persons entitled to preferential treatment. One such preference is for "qualified immigrants who are the married sons or married daughters of citizens of the United States." 8 U.S.C. § 1153(a)(4).
To qualify as a married son or daughter, an immigrant must have qualified as a "child" under 8 U.S.C. § 1101(b)(1)(C). Nazareno v. Attorney General, 512 F.2d 936 (2nd Cir.), cert. denied, 423 U.S. 832, 96 S.Ct. 53, 46 L.Ed.2d 49 (1975). A "child" is defined as:
(1) . . . an unmarried person under twenty-one years of age who is
(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.
8 U.S.C. § 1101(b)(1)(C).
There are three issues presented here: (1) Was California law applicable in this case when neither Kaliski nor his son had any contact with California before the son's eighteenth birthday? (2) Was Kaliski's son legitimated under California law before his eighteenth birthday, as required by section 1101(b) (1)(C)? (3) Must the case be remanded to INS for further findings of fact?
Vasa Kaliski was born in Yugoslavia in 1908. Between 1932 and 1941, he lived with but never married Magdelena Rotsenk because she was Catholic and he was Greek Orthodox. In 1934, Magdelena gave birth to their son Milivoj who lived with them until 1941. In that year, while serving in the Yugoslav army, Kaliski was taken prisoner by the Germans and was interned in a prisoner-of-war camp in Germany until his On January 3, 1973, Kaliski filed a petition with INS to obtain a preferential immigrant visa for his son who still lives in Yugoslavia. INS and the Board rejected the petition because Milivoj was not legitimated under Yugoslav law before his eighteenth birthday. The district court reviewed the decision of the INS and held that Milivoj is entitled to a preferential visa because he was legitimated under California law before his eighteenth birthday. 1
release in 1945. He lived in resettlement camps in Germany until 1951 when he emigrated to the United States. He established domicile in California in 1953 and became a citizen in 1971.
Under section 230 of the California Civil Code, 2 the father of an illegitimate child may legitimate the child by receiving the child into his family and acknowledging the child as his own. The California Supreme Court, in In re Lund's Estate, 26 Cal.2d 472, 159 P.2d 643 (1945), held that an illegitimate child was legitimated by the father under section 230 even if the legitimating acts occurred before either the father or the son had any contact with California, as long as the father later established his domicile in California.
The district court held that Kaliski legitimated Milivoj under California law by raising him during the first seven years of his life. California law was held to be applicable because Kaliski later established his domicile in California.
INS contends that California law should not be applied here because neither the father nor the son had any contact with the state before the son's eighteenth birthday and the legitimating acts did not occur in California. The INS contends that a state law affecting the distribution of property is not determinative in citizenship or immigration cases. See e. g. Matter of Varian, Interim Decision 2395 (1975). 3
In our view, the INS interpreted the law incorrectly. Under 8 U.S.C. § 1101(b)(1)(C), an immigrant qualifies as a "child" by being legitimated under the law of the father's domicile. The only restrictions are that the child must be under the age of eighteen when legitimated and the child must reside with the father at the time of legitimation. Both of these events occurred here. The fact that a state's legitimation statute is intended only to determine property distribution is irrelevant because that is the primary purpose of all such statutes. We hold that a state law which recognizes legitimating acts which occur before the father and child have any contact with the state is applicable in immigration cases.
INS contends that even if California law applies, Milivoj was not legitimated under California law before his eighteenth birthday because his father did not establish domicile in California until Milivoj was nineteen years old.
INS argues that the Act requires the father or child to reside in a jurisdiction recognizing the child's legitimacy before the child is eighteen years old. Kaliski argues that the Act only requires that the legitimating acts occur before the child is eighteen years old, and that the father and child need not reside in the jurisdiction which subsequently recognizes the legitimating acts before the child's eighteenth birthday.
The age limit requirement is designed to prevent fraud. Without the limitation, persons of any age could enter the United States...
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