Interim Decision #2134 

MATTER OF SANDIN-NAVA 

In Deportation Proceedings 

A-17221030 

Decided by Board March 22, 1972 

Since respondent's United States citizen child, although the issue of a bigamous 

marriage, is a legitimate child under section 85 (now section 4453) of the Civil 

Code of California and also within the contemplation of section 101(b)(1)(A) of 

the Immigration and Nationality Act, respondent qualifies as a "parent" 

under section 101(b)(2) of the Act. Accordingly, he qualifies as a "parent" for 

the purpose of a section 241(f) waiver of deportability. 

CHARGES: 

Order Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at 

entry under section 212(a)(19), procured immigrant 

visa by fraud. 

Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Immigrant 

seeking to enter the United States to perform labor 

without labor certification required by section 

212(a)(14). 

Section 241(aX1) [8 U.S.C. 1251(a)(1)]—Excludable at 

entry under section 212(a)(20), immigrant not in 

possession of immigrant visa. 

ON BEHALF OF RESPONDENT: 

Pro se 

ON BEHALF OF SERVICE: 

Reece B. Robertson 

Trial Attorney 

(Brief filed) 

R. A. Vielhaber 

Appellate Trial Attorney 

(Brief filed) 

The special inquiry officer found the respondent deportable as 

charged but found that he was saved from deportation by operation of section 241(f) of the Immigration and Nationality Act. From 

that decision the Service appeals. The appeal will be dismissed. 

The record relates to a 34-year-old male, a native and citizen of 

Mexico. He was first married in Mexico on October 14, 1959 and 

five children were born of that marriage. The respondent admits 

that this marriage was never terminated. Nevertheless, on November 10, 1967, he went through another marriage ceremony in 

Mexico, this time with an alien who was lawfully admitted for 

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Interim Decision #2134 

permanent residence in the United States. On the strength of this 

second marriage the respondent applied for and received a special 

immigrant visa. He entered the United States on February 3, 1968. 

The respondent admitted that he wilfully concealed the fact of his 

first marriage when he applied for his immigrant visa. 

The respondent insists that he married a second time purely out 

of love and not for the purpose of facilitating his own immigration 

to the United States. In a prehearing statement the respondent 

said that his first wife had refused to give him a divorce because of 

their five children. He added that his second wife was unaware 

that he was not free to marry her. His second wife testified that 

she believed in good faith that the respondent was free to marry 

her. During 'the proceedings the respondent testified that his 

second marriage was one of love and affection and that he and his 

spouse were still living together as husband and wife. One child, a 

United State_s citizen, was born of their relationship on August 27, 

1969. 

The respondent admitted that at the time of his entry he was 

entering for the purpose of performing unskilled labor in the 

United States and that he did not possess or present a certification 

from the Secretary of Labor. 

The special inquiry officer found the respondent excludable 

under section 212(a)(19) because his immigrant visa had been 

procured by fraud. He also found that since the respondent had no 

valid immigrant visa, he was excludable under section 212(a)(20). 

Since the respondent's second "marriage" was invalid he was not 

relieved of the labor certification requirement. The special inquiry 

officer accordingly found him excludable under section 212(a)(14) of 

the Act. Therefore the special inquiry officer found him deportable 

under all three charges. We agree with the special inquiry officer 

that deportability has been established with clear, convincing and 

unequivocal evidence. 

The special inquiry officer held that the respondent is saved 

from deportation by virtue of section 241(f) of the Act. That section 

provides: 

The provisions of this section relating to the deportation of aliens within the 

United States on the wround that they were excludable at the time of entry as 

aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not 

apply to an alien otherwise admissible at the time of entry who is the .... 

parent .... of a United States citizen .... 

Whether the respondent is "otherwise admissible" is not at issue. 

The inquiry narrows down to whether he is a "parent" for 

purposes of section 241(f). 

The term "parent" is defined in section 101(b)(2) of the Immigra89 
Interim Decision #2134 

tion and Nationality Act to include a father, but only where the 

relationship exists by reason of any of the circumstances set forth 

in section 101(b)(1) of the Act. An alien, then, would qualify as a 

"parent" if he were the father of a child as defined under section 

101(b)(1). Section 101(b)(1)(A) refers to "a legitimate child." Section 

101(b)(1XC) refers to "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." 

The special inquiry officer held that the child was a legitimate 

child under section 101(b)(1)(A), despite its birth out of wedlock, by 

virtue of section. 85 of the Civil Code of California. That section 

(now section 4453) then provided: "The issue of a marriage which 

is void or annulled or dissolved by divorce is legitimate." We note 

that the language contained in this section states that such issue 

is "legitimate" and not that such issue is "legitimated." The special 

inquiry officer was correct in concluding that whatever impact 

section 85 would have in the present case must be gauged by 

section 101(b)(1)(A) which concerns a "legitimate" child; ratheithan by section 101(b)(1)(C), which relates to children legitimated 

subsequent to their birth. The State of California also draws this 

distinction as there is another section of their Code (section 230), 

which provides a procedure whereby children may be legitimated. 

The special inquiry officer relied for authority upon the case of 

Godoy v Rosenberg,415 F.2d 1266 (C.A. 9, 1969). In that case section 

241(f) relief was afforded an alien, a parent of a United States 

citizen child, who had entered into a fraudulent marriage for 

purposes of evading the immigration laws. The child was born in 

the United States of the alien's illicit relationship with an unmarkried woman who was a citizen of Mexico. The alien, who .1.vas 

married to another woman when the child was born, secured a 

divorce from his first wife and married the mother of his United 

States citizen child. The Court accepted the proposition that the 

subsequent marriage of his parents legitimated the child under 

the law of the State of California. 

Not only are the facts in Godoy distinguishable from the facts in 

the present case, but the legal principles underlying the determination that the alien was a "parent" are also different. That is, in 

Godoy the alien secured a divorce from his first wife and married 

the mother of his illegitimate United States-born child. In the 

present case the respondent is still married to his first wife and 

thereby unable to marry the mother of his United States-born 

child. Also, the court in Godoy held that the United States-born 

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Interim Decision #2134 

child was legitimated as a result of the subsequent marriage of his 

parents. Legitimation under such conditions is a generally accepted legal principle which this Board has endorsed upon numerous occasions. In the present case, however, the claim of law is 

different; namely, that the child was "legitimate" under section 85; 

not that he was legitimated through operation of the principle 

endorsed in Godoy. 

Section 85 of the Civil Code of California pertained to the "issue 

of a marriage which is void or annulled or dissolved by divorce. ..." 

Did this section apply to the issue of a bigamous marriage? A 

California court has answered the question in the affirmative, In re 

Filtzer's Estate, 33 C.2d 776 (1949), and we feel bound by that court's 

decision in this regard. 

This case involves the application of section 101(b)(1)(A) of the 

Immigration and Nationality Act which defines "child" for immigration purposes to include a "legitimate" child. Section 

101(b)(1)(A) is silent with regard to what law shall be consulted to 

determine whether a child is legitimate. This is unlike section 

101(b)(1)(C). dealing with the concept of a "legitimated" child, 

which accepts a finding of legitimation according to the law of the 

child's residence or domicile, or of the father's residence or domicile. Does the silence of section 101(b)(1)(A) on this point compel us 

to the conclusion that we may not look to the law of the child's 

place of residence or domicile, or to the law of the father's place of 

residence or domicile? We think not. After all, in the absence of 

any federal enactment, to what other law could we look to 

determine whether a child is legitimate? Since the place of residence and domicile of both the child and the father all happen to 

be California in the present case, we believe it was correct to follow 

section 85 of the Civil Code of California. 

Therefore we agree with the special inquiry officer's conclusion 

that the respondent's United States-born child is a "legitimate" 

child not only in the eyes of the State of California but also within 

the contemplation of section 101(bX1)(A). Since his child is deemed 

to be a "legitimate" child, the respondent qualifies as a "parent" 

under section 101(bX2). The special inquiry officer concluded, accordingly, that the respondent qualified as a "parent" for purposes 

of section 241(f) as well. While we may not approve of respondent's 

domestic arrangements, we are mindful of the fact that in this 

case there is an existing family unit, including a United States 

citizen child. We recognize the fact that the central purpose of 

Congress in enacting section 241(f) was to protect the United 

States citizen child, even though an errant parent might thereby 

become the incidental beneficiary of the congressional concern. 

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Consequently, we agree with the special inquiry officer's decision 

granting relief under section 241(f). 

The Service appeal will be dismissed and the following order will 

be entered. 

ORDER: The Service appeal is dismissed. 

Warren R. Torrington, Member, Dissenting: 

I respectfully dissent. 

The majority opinion's lengthy discussion of the provisions of 

section 85 of the Civil Code of California completely misses the real 

issue that is here involved. 

Statutes which provide that children of void marriages are 

legitimate have been enacted solely in the interest of such children 

who, absent such statutes, would be illegitimate. They have not 

been enacted for the benefit of bigamists. 

The respondent is an adulterer and bigamist, whose true wife 

and five children reside in Mexico. I consider it unreasonable to 

impute to Congress an intention to award permanent residence to 

art otherwise deportable alien as a premium for his immoral and 

criminal conduct. I therefore strongly object to the majority 

opinion's construction of sections 101(b)(1) and 241(f) of the Immigration and Nationality Act. It produces a result which appears to 

me to be incompatible with a sound interpretation of those 

statutory provisions. 

The majority opinion refers to the relationship of this bigamist to 

the woman he wronged by inducing her to enter into a void marriage and to the unfortunate offspring as an "existing family unit." 

That—in my view—is preposterous. 

I would sustain the Service appeal, and would reverse the 

special inquiry officer's decision. 

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