Interim Decision #1406 

MATrza or Dm. Corm 

In VISA PETITION Proceedings 

A-13793529-530 

Decided by District Director July 16,1964 

(1) Although beneficiaries, born of an adulterous relationship of their mother, 

may be considered to have 2 legal parents, because their mother is unable to 

provide care for them, her husband refuses to accept responsibility for their 

care and support since they are not his children, and they have been cast from 

the family circle because of the circumstances of their birth, they have been 

abandoned within the meaning of section 101(b) (6), Immigration and Nationality Act, as amended. 

(2) Although a previous petition was approved for petitioners in behalf of a 

child as defined in section 101(b) (1) (F), Immigration and Nationality Act, as 

amended, the limitation imposed by section 205(c) of that Act does not preclude 

the approral of 2 additional petitions in behalf of eligible orphans who are 

twin sisters, since the separation of the sisters would thereby be prevented. 

DISCUSSION: The petitioners, citizens of the United States, were 

married on March 23, 1957. No children were born of this union but 

on March 19, 1963 they adopted a child, Michael, born in Italy on 

July 0, 1960, who was brought by the petitioners to the United States 

as an eligible orphan on the basis of their petition approved by this 

office on December 13, 1961. This child is not related by blood to the 

beneficiaries of the petitions here considered_ The Boston Children's 

Service, affiliated with the International Social Service, is the voluntary agency involved. The home study of the agency is favorable 

and the agency has given assurance that the preadoption requirements 

of the State of Massachusetts have been met. Investigation of the 

petitioners by the Immigration and Naturalization Service is entirely 

favorable. Overseas investigation of the mental and physical health 

of the beneficiaries reveals no illnesses or defects. 

The beneficiaries are twin sisters, born at Campobasso, Italy on August 1, 1962 to Giovannina Del Conte as the result of her adulterous 

union with their unnamed father. The beneficiaries have been transferred from their mother's home to the physical custody of the International Social Service, awaiting emigration, and have been irrevocaIG1 
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bly released to the International Social Service by their mother and 

her husband, Michele Del Conte, for emigration to the United States 

and for adoption. 

The report of the Officer in Charge of this Service at Rome and the 

records of the International Social Service show that Giovannina Del 

Conte has been married but once—to Michele Del Conte, in Italy in 

1953. From 1955 to 1960 Miehele Del Conte lived in Venezuela while 

his wife remained in Italy. During his absence, Giovannina Del Conte 

gave birth in 1958 to a child, Maria, the offspring of an adulterous 

union. Michele Del Conte returned to Italy in 1980 but did not rejoin 

his wife owing to the circumstances of the birth of Maria. While these 

spouses were still living apart, Giovamiina Del Conte gave birth on 

August 11 1962 to the twin beneficiaries as the result of another adulterous relationship. 

The overseas investigation shows further that Michele Del Conte is 

residing in marital union with the mother of the beneficiaries but is 

unwilling to support or care for them because they are not his children. 

Under Italian law, the beneficiaries may well be regarded as the 

children of Michele Del Conte in the absence of any legal action to 

disclaim them. Michele Del Conte has not legally disavowed their 

paternity but the record appears clear that they are not his natural 

children. 

The subject petitions wore filed with a view to according the beneficiaries nonquota, status under the provisions of section 101 (a) (27) 

(A) of the Immigration and Nationality Act as "children" of a citizen 

of the United States. Section 101(b) (1) (F) of the same Act defines 

the term "child" to mean an unmarried person under 21 years of 

age. . . . 

who is an eligible orphan, adopted abroad by a United States citizen and spouse 

or coming to the United States for adoption by a United States citizen and 

spouse: Provided, That no natural parent or prior adoptive parent of any such 

child shall thereafter, by virtue of such parentage be accorded any right, privilege, 

or statue under this Act. 

Section 101(b) (6) of the Act defines an "eligible orphan" as : 

Any alien child under the age of fourteen at the time at which the visa petition 

is filed pursuant to section 205(b ) who is an orphan because of the death or 

disappearance of both parents, or because of abandonment, or desertion by, or 

separation or loss from, both parents, or who has only one parent due to the 

death or disappearance of, abandonment, or desertion by, or separation or loss 

from the other parent, and the remaining parent is incapable of providing care 

for such orphan and has In writing irrevocably released him for emigration and 

adoption. 

Section 205 (c) of the Act provides that . . . . 

Not more than two such petitions may be approved for one petitioner in behalf 

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of a child as defined in section 101(b) (1) (E) or (F), unless necessary to prevent 

the separation of brothers and sisters. 

The issues to be resolved here are: (1) Whether the beneficiaries are 

eligible orphans within the meaning of the statute; and (2) May these 

petitions be approved in light of the restriction contained in section 

205 (c) since the petitions here discussed are the second and third by the 

same petitioners? 

These beneficiaries were living with their mother and presumably 

with the latter's husband at the time of their release to the International Social Service. Although they may be considered to have two 

legal parents, they have been cast from the family circle because of 

the circumstances of their birth. Their mother is unable to provide 

care for them and her husband refuses to accept responsibility for 

their care and support. It is clear that the repudiation of the beneficiaries as children of the Del Conte family is as complete at it is 

tragic. Their presence in the Del Conte household would be a continual irritant to conjugal harmony and the fact that they have been 

thrust from the home for the purpose of surrendering them for 

adoption 3,000 miles away is in itself evidence of the finality of their 

rejection. This is not a contrived situation, as has been encountered 

occasionally in other cases, where the two parents have abandoned or 

surrendered, a child to another party for the purpose of enabling the 

child to qualify as an eligible orphan in order to immigrate to the 

United States. The beneficiaries are as completely orphaned by 

abandonment as a result of the family circumstances as those children 

orphaned by death of their parents. Therefore, we find the beneficiaries to be eligible orphans within the meaning of this statute. 

The remaining issue is whether the petitions may be approved in 

view of the restriction of section 205(c) of the Act. The petitioners' 

first orphan petition was approved for Michael Toupouzis, now their 

adopted son. The second and third petitions by these petitioners are 

for the twin beneficiaries. We are satisfied that these letters petitions 

come within the exception to the restriction of section 205(c) and their 

approval is warranted in order to prevent the separation of the twin 

sisters. 

ORDER: It is ordered that the visa petitions be approved. 

703