De Los Santos v. Immigration and Naturalization Service

• Decision Date: 30 September 1982
• Docket Number: D,No. 847,847
• Citation: 690 F.2d 56
• Parties: Domingo Antonio DE LOS SANTOS, Plaintiff-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Defendant-Appellee. ocket 81-6258.
• Court: U.S. Court of Appeals — Second Circuit

Page 56

690 F.2d 56

63 A.L.R.Fed. 513

Domingo Antonio DE LOS SANTOS, Plaintiff-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Defendant-Appellee.

No. 847, Docket 81-6258.

United States Court of Appeals Second Circuit.

Argued April 5, 1982.

Decided Sept. 30, 1982.

Antonio C. Martinez, New York City, for plaintiff-appellant.

Thomas H. Belote, Sp. Asst. U. S. Atty., New York City (John S. Martin, Jr., U. S. Atty. for the S. D. of New York, Peter C. Salerno, Asst. U. S. Atty., New York City, on the brief), for defendant-appellee.

Before KEARSE and PIERCE, Circuit Judges, and LEVAL, District Judge. ^*

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 ¹ 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, ² one of the groups given immigration priority is composed of "the spouses, unmarried sons or unmarried daughters of an alien lawfully 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.

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

8 U.S.C. § 1101(b)(1)(C). ³ 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 No. 2643, 16 I&N 484 (BIA 1978); Matter of Remy, Interim Decision No. 2160, 14 I&N 183 (BIA 1972). ⁴

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 judicial decision.

Law 985 of Aug. 1, 1945, art. 2. However, Law 985 art. 1 provides as follows:

Natural filiation established pursuant to the provisions of the law produces the same effects as legitimate filiation with the exception of the distinction made in matters concerning successions.

(Emphasis added.) The exception referred to provides that in the event the parent also has a legitimate child or children and dies intestate, the naturally filiated child will inherit only one half the share attributable to a legitimate child. Law 985 art. 10.

In the present case, Domingo and Enmanuel's mother have never been married to each other, and Domingo does not contend that Enmanuel has been legitimated under DCC art. 331. Rather, he asserts that he "acknowledged" Enmanuel eight days after Enmanuel was born, thereby naturally filiating Enmanuel under Law 985 art. 1, and that Enmanuel was thus legitimated under Dominican law for purposes of the United States immigration laws.

INS rejected Domingo's petition, concluding, as it had previously in Matter of Reyes, supra, that natural filiation under Dominican law does not establish rights identical to those enjoyed by legitimate children, and hence a "naturally filiated" Dominican child cannot be deemed "legitimated" within the meaning of § 101(b)(1)(C) of the Act. Domingo challenges here, as he did in the district court, INS's interpretation of legitimation as unreasonable and unduly narrow.

DISCUSSION

We affirm the judgment dismissing Domingo's complaint substantially for the reasons given in Judge Ward's thorough opinion, reported at 525 F.Supp. 655, and add only the following observations.

First, there is no serious question of Dominican law that is unresolved in any material respect. ⁵ The district court implicitly construed Dominican law as according to children naturally filiated under Law 985 rights that are less extensive than those of legitimate children and children legitimated under DCC art. 331. This determination, which we review as a question of law, Fed.R.Civ.P. 44.1, was eminently correct. Domingo recognizes that under Dominican law naturally filiated children do not enjoy inheritance rights as extensive as those of legitimate children. The only serious question he poses is whether the naturally filiated child's lesser right of inheritance is a permissible basis for INS's refusal to deem such a child legitimated within the meaning of the immigration laws.

As to the matter of the correct interpretation of § 101(b)(1)(C), while this too is a question of law subject to full review by the appellate court, Tovar v. INS, 612 F.2d 794, 797 (3d Cir. 1980), in general we must give deference to the construction accorded to a statute by the agency charged with its administration. See, e.g., North Haven Board of Education v. Bell, --- U.S. ----, 102 S.Ct. 1912, 1918 n.12, 72 L.Ed.2d 299 (1982), aff'g North Haven Board of Education v. Hufstedler, 629 F.2d 773, 777 (2d Cir. 1980); United States v. Rutherford, 442 U.S. 544, 553-54, 99 S.Ct. 2470, 2475-76, 61 L.Ed.2d 68 (1979). Thus, if INS's interpretation is reasonable, in that it is consistent with the statutory language, legislative history, and purpose of the statute, we will not invalidate it.

We agree with the district court that INS's interpretation of "legitimated" as requiring the acquisition of rights coextensive with those of a legitimate child is consistent with the language of the Act. The plain meaning of the word is discussed in greater detail in the district court's opinion, 525 F.Supp. at 661, and need not be explored further here. The district court also reviewed at length the legislative history of the Act and of related statutes, id. at 663-68, to determine whether INS's interpretation is consistent with Congress's intent. Although the legislative history is not dispositive, we see in it no indication that Congress intended the word "legitimated" to denote the acquisition of fewer rights than those enjoyed by a legitimate son or daughter. Accordingly, the history, to the extent that it sheds light on this question, supports the view that INS's interpretation is not inconsistent with Congress's intent.

The closest question is whether INS's interpretation, as applied in the present case, is consistent with the purpose of the statutory scheme. Immigration preference categories were created as a means of allocating visas when the demand for them exceeds the number lawfully available. See 8 U.S.C. § 1152. In general, insofar...