Interim Decision #1762 

Mamma or YouNo* 

In Visa Petition Proceedings 

A-12788962 

Decided by Board July 98, 1967 

Since the relationship or stepmother-stepchild within the ambit of Natioia v. 

Esperdy, 239 F. Supp. 531, is created upon the marriage of the father of the 

illegitimate child to the stepmother subsequent to the birth of the child, the 

relationship of stepmother-stepchild does not exist for immigration purposes 

between petitioner, a law= permanent resident, and beneficiary -, the Illegitimate child of her prior husband, which child was born as the result of an 

extramarital relationship during the existence of their marriage. 

Ox BZILOW or Tun Pwrrrornm: Ox BrATALV or SnarloIC: 

Jack Wasserman, Esquire Irving A. Appleman 

902 Warner Building Appellate Trial Attorney 

Washington, D.C. 20004 

The case comes forward on appeal from the order of the District 

Director, New York District, dated May 8, 1967 denying the visa 

petition for the reason that the beneficiary, the alleged stepdaughter, is 

not a "child" as defined in section 101(s) (1) (B) or (D) of the Immigration and Nationality Act in that she is not a legitimate child, 

since petitioner's husband was never married to her mother or otherwise legitimated her in accordance with the terms of section 101(b) 

(1) (C) of the Act; furthermore, the case is distinguishable from the 

decision in Nation, v. Esperdy, 239 F. Supp. 531 (1965). 

The petitioner, a 52-year-old female, a native of Hong Kong, B.C.C., 

a British subject, and a lawful permanent resident of the United 

States since January 21, 1962, seeks preference quota status on behalf 

of the beneficiary as her stepchild. The beneficiary is a native of Hong 

Kong, B.C.C., a British subject, 10 years old. The visa petition indicates that the petitioner was married on November 15, 1935 at Nan 

Chung Village, N.T., Hong Kong. A birth certificate of the beneficiary shows that her birth was registered under the name of Tsui Ling, 

•See also Matter of Young, Int. Dec. No. 1819, of which the alien beneficiary 

in this case Is also the subject. 

310 
Interim Decision #1762 

her father being listed as Young Wan Twig and her mother being 

described as Yau Boon Tai. 

Sworn statements were taken from the petitioner and her husband, 

Young Wan Twig, by an immigration officer on April 13, 1967. When 

questioned regarding the birth certificate of the beneficiary, she stated 

that the midwife advised her to use the name of herself and her husband as parents instead of the name of the natural mother of the 

child, who was a servant in her household. The petitioner stated that 

the servant had told her that her husband was the father of this child. 

She stated that the child was born and remained in her household 

where the natural mother of the child continued to be employed as a 

servant, that she bottle fed the baby and that the child's natural 

mother took care of the child but not enough. The petitioner stated 

that at the time the child was born, her husband was in the United 

States, that she informed him of the birth of the child and that he 

sent money for the support of the child but that she had no receipts. 

The petitioner left Hong Kong for the United States in 1962 when the 

beneficiary was about five years old. The beneficiary continued to reside in the petitioner's house with her natural mother, the petitioner's 

daughter-in-law and her grandchildren, and was cared for by her 

natural mother. The petitioner's husband continued to send financial 

support for the child as well as for the daughter-in-law and the grandchildren. 

The sworn statement of the petitioner's husband confirms that they 

were married in 1985, that he left for the United States in 1987 and 

that he visited his wife in Hong Kong in 1945 when he was a member 

of the United States Army, visited her again in 1946 and 1949 and 

last visited her from February 1956 until December 1956. He admitted 

that he engaged in sexual relations with the servant girl during all 

his visits to Hong Kong and that they engaged in relations about 10 

or 15 times. He admitted, however, that he had told an investigator 

in connection with an attempt to bring in the beneficiary as an orphan 

that he had intercourse with the servant girl only once. However, he 

now states it may have been more than once but he did not exactly 

remember and that the servant girl is now about 48 years old. The 

husband stated that the only way he has of knowing that he is the 

child's father is that the servant girl told his wife that he was the father 

and that 'he knows he had engaged in sexual intercourse with her; 

that in 1956 when he left Hong Kong she appeared to be pregnant; 

that he discussed this with her and she told him that she was pregnant 

and it was his child. He believed her because of the circumstances involved and said that he is willing to undergo blood tests to 'determine 

compatibility. He stated that he supported the child but that he has 

341 
Interim Decision #1762 

never seen the child. The husband did not consider the servant girl, 

Tong Kai, to be a concubine and declared that the beneficiary was his 

illegitimate child. 

Counsel places reliance upon the case of Nation v. Esperdy, 239 F. 

Supp. 531 (S.D.N.Y. 1965), to support his contention that the beneficiary is the stepchild of the female petitioner. The Nation case 

involved a child who was born out of wedlock on February 12, 1947, 

was abandoned in infancy by his natural mother, he was cared for by 

the plaintiff since 1949. The plaintiff married the beneficiary's natural 

father in 1952 when the beneficiary was five years old. The court 

found that the legislative history of the Act of 1957, which amended 

section 101 (b) (1) of the Immigration and Nationality Act so as to 

include in subparagraph (B) a stepchild, Icaether or not born, out of 

wedlock, provided the child had not reached the age of 18 years at the 

time the marriage creating the status of stepchild occurred, while 

tending to sustain the Government's position that it applied only to 

the illegitimate child of a mother who subsequently married a United 

States citizen, nevertheless was not sufficiently compelling to control 

the interpretation of subparagraph (B). The court observed that the 

plaintiff, her husband and the beneficiary had been a dime family unit 

since shortly after the beneficiary's birth, that immediately after citizenship was secured, the plaintiff petitioned to unite the family unit. 

The court applied the "plain meaning" rule to the phrase "whether or 

not born,out of wedlock" in view of the clearly expressed legislative 

intention to keep together the family unit whenever possible and 

held that on the facts of the case, in view of the existence of a family 

unit, the beneficiary was the plaintiff's stepchild. 

There are important differences between the present case and the 

Nation case. In the Nation case, the factual situation was that the child 

was born out of wedlock, and the natural father married the stepmother when the child was five years old. The court at pages 533-534 

stated that although accepted dictionaries define stepchild as a child 

by a former marriage, this statute literally contemplates that for immigration purposes, a person may be a stepchild even though he is illegitimate and that neither the accepted dictionary definitions nor the 

statute makes any distinction between father and mother in defining a 

stepchild. These words of the court must be taken in the factual context 

in which they were uttered, a case where the step-relationship occurred 

upon the subsequent marriage of the father of the illegitimate childto 

the stepmother, thus creating the step-relationship by such subsequent 

marriage. 

In the instant case,, there is no subsequent marriage, the petitioner 

being the wife of the husband, the child being The illegitimate child of 

342 
Interim Decision #1782 

th petitioner's husband, born as a result of illicit intercourse occurring 

during the marriage. Upon these facts, it is difficult to perceive how 

the petitioner qualifies as a stepmother merely by virtue of the fact 

that the beneficiary and her natural mother continued to reside in the 

household where the natural mother was a servant . 1 

In addition, the petitioner's husband has never even seen the child. 

It is obvious that there was not in existence a family unit which was 

such a strong factor in influencing the decision in Nation v. Esperdy, 

289 F. Supp. 531. Assumingthe petitioner's husband was the father of 

the child, in addition to the father never having seen the child, the 

child was raised by the natural mother who resided in the petitioner's 

household, the petitioner assisting merely in occasionally bottlefeeding the child. 

The present case cannot be compared with the situation in Nation v. 

Esperdy or in Matter of The, Int. Dec. No. 1541, which was considered 

a situation analogous to the Nation case. The circumstances of the case 

fall within the principle of the holdings in Matter of Aleo, Int. Dec. No. 

1542; Matter of Morris, Int. Dec. No. 1568; Matter of Green, Int. Dec. 

No. 1570; and Matter of Sobers, Int. Dec. No. 1590. These latter cases 

apply even more strongly because it does not appear under the factual situation presented herein that there is any claim to a stepmotherstepchild relationship based upon an illegitimate child born to the 

petitioner's husband during the existence of the marriage of the petitioner and her husband. 

ORDER: It is ordered that the appeal be and the same is hereby 

dismissed. 

1Cf., Matter of Green, Int. Dec. No. 1570 (October 29. 1965). 

343