Fiallo v. Levi

Decision Date28 November 1975
Docket NumberNo. 74 C 1083.,74 C 1083.
PartiesRamon Martin FIALLO, an infant by his mother, Celia Francisca Michael Rodriguez, et al., Plaintiffs, v. Edward H. LEVI, Individually and as Attorney General of the United States, et al., Defendants.
CourtU.S. District Court — Eastern District of New York

Janet Calvo, New York City (Kalman Finkel, Morton B. Dicker, John E. Kirklin, Anita Fisher Barrett, New York City, The Legal Aid Society), for plaintiffs.

Douglas J. Kramer, Asst. U. S. Atty., Brooklyn, New York (David G. Trager, U. S. Atty., E. D. N. Y.), for defendants.

Before MOORE, Circuit Judge, WEINSTEIN and BRAMWELL, District Judges.


MOORE, Circuit Judge:

This is an action challenging the constitutionality of two classifications of aliens established by Congress as part of a comprehensive scheme for the admission of aliens into the United States contained in the Immigration and Nationality Act (the "Act"), Title 8 U.S.C. § 1101 et seq. Plaintiffs specifically challenge the Act's definition of "parent" and "child" insofar as it excludes the relationship between unwed, biological fathers and their illegitimate children.1 The effect of the exclusion is to subject the aliens in question to restrictive numerical quotas and labor certification requirements which are waived for individuals who qualify as parents or children, within the meaning of the Act, of American citizens and permanent residents.2 Plaintiffs are three sets of unwed, biological fathers and their illegitimate offspring. Both the aliens excluded by this section of the Act and the American citizens or permanent residents who are these aliens' illegitimate children or biological fathers have joined as plaintiffs in this suit; their claim is that the statutory classification is unconstitutional on its face since unwed biological fathers are excluded while unwed biological mothers are not.

A three-judge court was ordered convened, and plaintiffs have moved this Court for certification as a class action, summary judgment and a permanent injunction. For the reasons which follow, those motions are denied, and judgment is entered for the defendant. The facts are not in dispute, and may be summarized briefly.

Ramon Fiallo, an infant and an American citizen by birth, applied—through application submitted on his behalf by his mother—to the United States Consul in the Dominican Republic to have his alien father officially declared to be his parent under the immigration laws, so that the latter might remain permanently in the United States. Ramon Fiallo's petition was rejected, the Consul stating that Fiallo senior could not be declared the parent of an American citizen since his child was illegitimate. At present, both parents are living together in this country with their child; although the father could qualify as a parent if he legitimated his son, he and the boy's mother do not wish to marry.

Cleophus Warner, a naturalized American citizen, attempted to have his illegitimate son Serge, a citizen of the French West Indies, officially declared to be his child within the meaning of the Act by filing a petition with immigration authorities in New York, so that the boy might remain permanently with his father in this country. The petition was rejected since the boy was neither the father's legitimate nor legitimated offspring, and hence he could not meet the Act's definition of a child.

Trevor and Arthur Wilson are two brothers under twenty-one years of age who are permanent residents of the United States. After the death of their biological mother they sought to have their father, a citizen of Jamaica, officially classified as their parent so that he might qualify for permanent residency in this country. It is not clear whether their petition has already been denied, but denial is certain since the boys were never legitimated and hence their father cannot qualify as a parent under the Act.

The alien fathers and son in this action believe that their only realistic avenue of admittance to this country on a permanent basis is through classification as the parent or child of an American citizen or permanent resident. Fiallo senior has sought a labor certificate unsuccessfully in the past; Wilson senior alleges that the only job for which he is qualified—that of general handyman —is one for which the required certificate is not granted.

Subject matter jurisdiction is conferred on this Court by section 279 of the Act, Title 8 U.S.C. § 1329.

A threshold question is presented with regard to Fiallo's standing to maintain this action. The administrative decision on which Fiallo bases this suit is the denial of his petition by the United States Consul at Santo Domingo. Decisions of consuls granting or denying a visa have been held to be immune from judicial review. See, e. g., LozaBedoya v. INS, 410 F.2d 343 (9th Cir. 1969). We note, however, that the petition in question here did not constitute an application for a visa, but was a preliminary declaration of immigrant status. We will not extend consular non-reviewability, insofar as that rule has been recognized, beyond the actual grant or denial of a visa. This is predicated upon our reluctance to insulate entirely the actions of any public official from judicial scrutiny, and thereby foreclose a group of plaintiffs from seeking relief in the courts. Plaintiff Fiallo, therefore, is not barred from bringing this action.

Turning to the merits, we begin with the proposition that Congress' power to make rules for the admission and expulsion of aliens is exceptionally broad.

The Court without exception has sustained Congress' plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden. Over no conceivable subject is the legislative power . . . more complete than it is over the admission of aliens.
Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S.Ct. 2576, 2583, 33 L.Ed.2d 633 (1972) (quotation marks and citations omitted)

The limits to the exercise of this power are few, for an alien has no constitutional right to enter or remain in this country, Kleindienst v. Mandel, supra. Moreover, he may be denied entrance on grounds which would be constitutionally suspect or impermissible in the context of domestic policy, namely, race,3 physical condition,4 political beliefs,5 sexual proclivities,6 age,7 and national origin.8

In regulating the admission of aliens who are the spouses, parents, and children of American citizens and permanent residents, Congress has chosen to specify the kind of relationships which are, for purposes of the immigration laws, embraced within those terms. This is a perfectly proper exercise of the Congressional responsibility to admit into this country those individuals who will be desirable additions to our populace. This includes individuals who will respect our system of government9 and who will be useful additions to our labor force,10 as well as those whose lives reflect personal standards of conduct important to our society's sense of morality. And while the Congress' view about what kind of marital or parental relation should be encouraged in this country may differ from the individual views held by the members of the courts, it is not for the judiciary to usurp the legislative function and replace the Congressional standards with its own.

A number of courts have ruled on the question of whether, in the immigration field, Congress may constitutionally apply its own standards with respect to the status of familial relations, and we note that this power has consistently been upheld. In United States v. Diogo, 320 F.2d 898 (2d Cir. 1963), this Court held that a marriage valid under state law need not be recognized as valid under the immigration laws.

Of course Congress may adopt a federal standard of bona fides for the limited purpose of denying immigration priorities to persons whose marriages do not meet that standard. That standard, embodied in the Congressional understanding of the terms "marriage" or "spouse" as those terms appear in the immigration statutes is, of course, the relevant standard to apply in exclusion or deportation proceedings brought under the statutory provisions appropriate. 320 F.2d at 905.

In Faustino v. INS, 432 F.2d 429 (2d Cir. 1970), cert. denied, 401 U.S. 921, 91 S.Ct. 909, 27 L.Ed.2d 824 (1971), we held that it was not unconstitutional for Congress to permit citizen children over the age of twenty-one to bring their alien parents into this country without regard to numerical quotas, but to deny that same privilege to citizen children under that age. Accord, Perdido v. INS, 420 F.2d 1179 (5th Cir. 1969). And in an analogous situation the District of Columbia Circuit upheld the application of one aspect of the Act's restrictive definition of child to the provision of the Act granting priority status to the sons and daughters of American citizens;11 the effect of the holding was to deny the status of child, and hence the consequent statutory benefits, to aliens who were adopted by American citizens after their fourteenth birthdays.12 Nazareno v. Attorney General of United States, supra.

There is no doubt that Congress can establish classifications which result in the granting of benefits to one group of individuals, and their denial to another. Unless the immigration laws in question are wholly devoid of any conceivable rational purpose,13 or are fundamentally aimed at achieving a goal unrelated to the regulation of immigration,14 they are not unconstitutional encroachments on the right to equal protection of the laws.

At the request of the Court the Legal Aid Society representing the plaintiffs submitted a most able and exhaustive post-trial memorandum demonstrating via statistical tables and many treatises its thesis that the "courts are giving increasing legal recognition to the reality that unwed fathers, like mothers, have close ties to their...

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  • Coniglio v. Garland
    • United States
    • U.S. District Court — Eastern District of New York
    • August 17, 2021
    ...(E.D.N.Y. May 28, 2010) (claim that consular official's visa denial was "clearly erroneous" is unreviewable); but see Fiallo v. Levi , 406 F. Supp. 162, 165 (E.D.N.Y. 1975) ("We will not extend consular nonreviewablility, insofar as the rule has been recognized, beyond the actual grant or d......
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    • July 21, 1980
    ...547 F.2d 1281, 1290 (5th Cir.), vacated and remanded, 434 U.S. 962, 98 S.Ct. 498, 54 L.Ed.2d 447 (1977), quoting, Fiallo v. Levi, 406 F.Supp. 162, 165 (E.D.N.Y.1975). This useful doctrine protects congressional power to perform a congressional function. It has little use, however, when judi......
  • Fiallo v. Bell
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    • April 26, 1977
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    ...entrance on grounds which would be constitutionally suspect or impermissible in the context of domestic legislation. Fiallo v. Levi, 406 F. Supp. 162 (E.D.N.Y. 1975), aff'd sub nom. Fiallo v. Bell, supra; see also Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984), aff'd, 472 U.S. 846 (1985); ac......
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1 books & journal articles
  • Recognizing the Right to Family Unity in Immigration Law.
    • United States
    • Michigan Law Review Vol. 121 No. 4, February 2023
    • February 1, 2023
    ...Theory of the Right to Vote?, 35 HASTINGS CONST. L.Q. 643,654-55 (2008). (199.) See supra Section II.B. 1. (200.) E.g., Fiallo v. Levi, 406 F. Supp. 162, 168 (E.D.N.Y. 1975) ("While we are not unmindful of plaintiffs' plight, we have held in the past that such incidental impact on the famil......

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