Interim Decision #2840 

MATTER OF BONNETTE 

In Visa Petition Proceedings 

A-24209799 

Decided by Board November 5, 1980 

(1) Under the rule laid down in the Ninth Circuit in Palmer v. Reddy, 622 F.2d 463 (9 Cir. 

1980), a visa preference is available to beneficiaries who become stepchildren prior to 

their eighteenth birthday as a class without qualification. Matter of Moreira, Interim 

Decision 2720 (BIA 1979) and Matter of Moreira, Interim Decision 2792 (BIA 1980) no 

longer apply in the Ninth Circuit. 

(2) Beneficiary of a visa petition who was allegedly born out of wedlock to petitioner's 

husband became the petitioner's stepchild for immigration purposes in 1948 when the 

petitioner married the beneficiary's father, even though the petitioner and her husband did not know of beneficiary's existence until 1979, and despite the absence of 

evidence of parental interest or support prior to the beneficiary's eighteenth birthday. 

(3) Where the beneficiary of a visa petition did not see his alleged stepmother and 

putative father until he was age 32, case remanded by Board for proof of identity of 

parties. 

ON BEHALF OF PETITIONER: Dana Marks Keener, Esquire 

Lawrence N. DiCostanzo, Esquire 

Simmons and Ungar 

317 Washington Street, Suite 301 

San Francisco, California 94111 

By: Milhollan, Chairman; bianiatis and Maguire, Board Members. Board Member 

Applernan, Concurring 

This is an appeal from the decision of the District Director, dated 

January 10, 1980, denying a visa petition filed by a United States 

citizen petitioner to accord first-preference status to the beneficiary as 

her stepson under section 203(a)(1) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(1). The record will be remanded for further 

proceedings. 

The petitioner, a United States citizen, seeks first-preference status 

on behalf of the beneficiary as her stepson. The beneficiary, a native 

and citizen of the Philippines, was born out of wedlock to the petitioner's husband and a woman he never married. The petitioner married the beneficiary's father in 1948, when the beneficiary was almost 2 

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years old. The petitioner and her husband did not become aware of the 

existence of the beneficiary until 1979. In his denial of the visa petition, 

the District Director stated that there was no evidence that the beneficiary has ever, resided with the petitioner, or that she has had an active 

parental interest in the beneficiary's support, instruction, and general 

welfare. 

In the instant case, it is conceded that the petitioner, the stepparent, 

had not shown an interest in the stepchild's welfare prior to his 

eighteenth birthday. While the circumstances of the case may not 

meet the test prescribed by this Board in Matter of Moreira, Interim 

Decisions 2720 and 2792 (BIA 1979 and 1980), we are bound in this case 

to apply the rule announced in Palmer v. Reddy, 622 F.2d 463 (9 Cir. 

1980), which is binding in the Ninth Circuit. In Palmer, the court held 

that visa preference is available to beneficiaries who become stepchildren prior to their eighteenth birthday as a class without further 

qualification. Therefore, to the extent that the decision of the District 

Director relied on Matter of Moreira, supra, it is hereby overruled. 

There remains the issue of the beneficiary's identity. He claims to be 

the natural son of the petitioner's husband. The petitioner and her 

husband first learned of the beneficiary in 1979, when he> was 32 years 

old. The beneficiary submitted a photocopy of a birth certificate issued 

by the municipal authorities in Manila, certifying that a child was 

born to the petitioner's husband and another woman in October 1946. 

We are not yet convinced that he is in fact the child named in the 

proffered certificate. The petitioner argues that the beneficiary provided her with additional evidence such as: a 1946 letter from the 

petitioner's husband to the natural mother, and four snapshots of the 

two when they lived together in the Philippines. The petitioner should 

submit the letter and the photographs in support of this visa petition 

together with any additional evidence which may be available to prove 

the identity of the parties. Consequently, we will remand the record for 

further proceedings to provide the petitioner an opportunity to more 

fully establish the identity of the beneficiary as the natural son of the 

petitioner's husband. 

ORDER* The record is remanded to the District Director for 

further proceedings consistent with the foregoing opinion. 

CONCURRING OPINION: Irving A. Appleman, Board Member 

I concur with the majority. If the parties to this petition are whom 

they claim to be, we are compelled to grant the petition under Palmer 

v. Reddy, 622 F.2d 463 (9 Cir. 1980). According to that decision, 

"stepchild", as defined in 8 U.S.C. 1101(b)(1)(B), is to be interpreted 

literally and a "visa preference is available to stepchildren as a class 

without further qualification." 

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Nevertheless, I cannot help but feel some concern when Palmer v. 

Reddy is applied in this case. The beneficiary was allegedly born out of 

wedlock in 1946, in the Philippines. The claimed putative father married the petitioner in 1948. It is claimed that neither the petitioner nor 

the putative father knew of the existence of the beneficiary until 1979. 

By then the beneficiary was 32 years of age, married and divorced, and 

with three children of his own. (By then, also, his own mother, who 

presumably reared him, was deceased.) According to the brief on 

appeal, the beneficiary carried out his search for his father, "armed 

only with four old photographs" of his mother and the petitioner's 

husband and a "letter of 1946" to his mother from the petitioner's 

husband. We do not have this evidence in the record before us, although we do have a birth certificate showing Clarenz Bonet, Sr., as the 

father of an illegitimate child, Clarenz Bonet, Jr., born October 1,1946, 

in the Philippines. The petition and brief set forth the date of birth as 

November 2, 1946. 

In the normal familial relationship there is a continuity of communication which assures the existence of significant evidence of a rela 

tionship. That evidence is not in, the file before us. In the circumstances 

of this case, it is not unreasonable to ask for proof that the birth 

certificate relates to this claimant and that he is indeed who he claims 

to be. I therefore concur in a remand so that this aspect of the record 

may be developed. 

It should be noted that these are cases where legitimation, as recognized and defined under 8 U.S.C. 1101(b) (1)(C), has not occurred. Proof 

of identity and relationship are not always present. Opportunities for 

fraud and fraudulent substitution do exist. These considerations may 

have contributed to the requirement that the relationship be established before the child reaches the age of 18. We must also assume that 

the Congress knew what it was doing in 8 U.S.C. 1101(b)(1)(D), when it 

prescribed that immigration benefits to an illegitimate child may flow 

from its natural mother but not from the putative father. In our 

experience, "step child" petitions involve illegitimate children of the 

father (born in or out of wedlock, see e.g., Matter of Stultz,15I&N Dee. 

362 (BIA 1974,1975; A.G. 1975)) more often than legitimate offspring of 

a prior marriage.' For this reason, petitions of this sort are founded on 

a relationship to the stepmother, and not the putative father. With the 

test set up in Matter of Moreira, Interim Decision 2792 (BIA 1980), it 

was possible to determine the existence of at least a minimal 

stepmother relationship in harmony with the will of the Congress to 

encourage family union (or reunion). At the same time, the rule 

discouraged a direct violation of the prohibition against benefits flow- 

' In fairness, this may be because of the appellate level at which we view them. 

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ing from the putative father to his illegitimate child. Cf. Matter of 

Soares, 12 I&N Dec. 653 (D.D. 1967; BIA 1968). 

The issue was more than academic. For example, in Matter of Amado 

and Monteiro, 13 I&N Dec. 179 (BIA 1969), the petitioning 

"stepmother" had never had any contact with, and had never seen, 

either child. The children had lived with their respective natural 

mothers since birth (they were then aged 15 and 12, respectively) and 

presumably would want to continue living with them as soon as they 

could come to the United States. It appeared that the proof of the 

joining together of a family unit with the stepmother in the United 

States was highly tenuous. Again, many of these petitions are filed by 

and for siblings, one of whom is legitimate, the other not, with the 

stepmother as the common parent. It is perfectly conceivable to have a 

case where, upon learning of the existence of an illegitimate, adulterine child, the "stepmother" rejects the child and possibly even the 

father/husband and will have nothing to do with them thereafter. 

Under the "literal" rule of Palmer v. Reddy, a petition filed by a halfbrother or sister, for that sibling, will have to be approved despite the 

fact that neither of them may have set eyes on one another, and that 

they are claiming through a "stepmother" who completely rejected the 

adulterine child and still'does. Further, what does the Service do with a 

petition a "bLepchild" Files in due course after admission, in behalf of 

his natural mother, with whom he has spent his entire life and who has 

a far better claim to relationship in most cases, than the petitioner/stepmother? He may be, somewhat uniquely, one with two 

mothers for immigration purposes. 

Regrettably, "the unqualified language" of 8 U.S.C. 1101(b)(1)(B), as 

viewed by the Court in Palmer v. Reddy, is in innate conflict with 

subparagraph (D) of the same section, and, in the language of an 

earlier decision, "imputes to Congress the unlikely intention of favoring a relationship by affinity over a closer one of consanguinity." 

Matter of Saaree,12 I&N Dec. 653, 662 (D.D. 1967); (BIA 1968). This is 

not the time nor is it the purpose of this separate opinion to rehash the 

complexities of subparagraph B. Id. at 656 ff. Suffice it to say that 

Matter of Moreira, supra, now vitally wounded, if not moribund, was 

an attempt by the Board to bring some harmony to the discordant 

elements in Matter of W—, 7 I&N Dec. 685 (BIA 1958); Matter of 

Soares, supra; Nation v. Esperdy, 239 F.Supp. 531 (S.D_N.Y. 1965); and 

Andrade v. Esperdy, 270 F.Supp. 516 (S.D.N.Y. 1967). 

The statutory aim is benign and the true stepchild should be joined 

with his family with the minimum of difficulty. Petitions for children 

are sympathetic and even the desire of the putative father to defeat the 

mandate of the statute is perfectly understandable. Yet the function of 

this Board is to interpret the statute as we believe the Congress 

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intended, and one cannot help but believe the Congress may not have 

intended the results to which a literal reading of Palmer v. Reddy, 

supra, will sometimes bring us. While Palmer v. Reddy resolves the 

issue, at least in the Ninth Circuit, it may not solve the problems. 

RCA