Interim Decision #2308 

MATTER OF HARRIS 

In Visa Petition Proceedings 

A-18958024 

Decided by Board November 6, 1970 

For the purpose of legitimation under section 10I(b)(1)(C) of the Immigration and Nationality Act, as amended, the legal custody requifements of that section have not been 

met where beneficiary, a child born out of wedlock, has at all times resided with her 

natural mother in Liberia and has not at any time been in the care of or resided with the 

putative father (husband of the United States citizen petitioner), and the natural 

parents never married. Beneficiary does not qualify as a stepchild of the petitioner 

under section 101(b)(1)(B) of the Act within the meaning of Nation v. Esperdy, 239 

F. Stipp. 531 (S.D. N.Y., 1965), for failure of petitioner to establish the existence of a 

close family unit; neither does beneficiary qualify as a stepchild of the petitioner under 

section 101(b)(1)03) of the Act under the rationale of Andrade v. Esperdy, 270 E. Supp. 

516 (S.D. N.Y., 1967), that a preexisting bona fide family unit is not necessary to 

establish a stepchild relationship, since that rule is applicable only to cases arising 

within the jurisdiction of the Southern District of New York (Matter of Source, 12 I. & 

N. Dec. 653 (1958), and Matter of Amoxio and Monteiro, 13 I. & N. Dec. 179 (1969)). 

ON BEHALF OF PETITIONER: 

John T. Vance, III, Rep. 

8708 Garfield Street 

Bethesda, Maryland 20014 

Lois Mae Harris, Petitioner 

(Brief filed) 

ON BEHALF OF SERVICE: 

Irving A. Appleman 

Appellate Trial Attorney 

This is an appeal from the decision of the district director denying the 

visa petition filed by the petitioner on behalf of her alleged stepdaughter, Precious Hannah T. Harris. Petitioner seeks the issuance of 

an immigrant visa to the beneficiary as an immediate relative, as provided by section 201(b) of the Immigration and Nationality Act. 

The petitioner, Lois Harris, is a 28-year-old married female, a 

native-born citizen of the United States. The beneficiary is a 5-year-old 

child, a native and citizen of Liberia, who resides with her natural 

mother, Henrietta Bull, in Liberia. The petitioner's husband, Mr. 

Moses P. Harris, Jr., is residing with the petitioner in the United 

States, and is now a lawful permanent resident. He declares himself to 

be the natural father of the child. He and the child's mother, Henrietta 

Bull, were never married. 

Section 201(b) of the Immigration and Nationality Act defines "immediate relatives" as "children, spouses and parents of a citizen of the 

United States." Section 101(b)(1) defines the term "chfid" in five sepa39 
Interim Decision #2308 

rate paragraphs. Here we are concerned only with sections 101(b)(1)(B) 

and (C). 1 

Petitioner claims that Precious Hannah is her step-daughter; that the 

child was legitimated by the decree of a court in Liberia; and that the 

petitioner's marriage to Mr. Harris, Jr.; created the stepchild relationship. The district director determined that this petition should not be 

granted either under (B) for a stepchild, or under (C) for a legitimated 

child: 

The child was born on October 8, 1965. Mr. Harris, Jr., and Henrietta 

Bull never lived together as husband and wife. (See his sworn statement of November 14, 1969, page 2.) On September 8, 1966, Mr. Harris, 

Jr., left Liberia for the United States. He states, "Before my departure 

for the United States, I told my father that this child was mine and that 

I did not have the time to go to the courts to declare this." During the 

eleven months following the child's birth and before his departure from 

Liberia, Mr. Harris, Jr., did not participate in legitimation or adoption 

proceedings. On June 8, 1968, he married the petitioner in Montana. 

During July, 1969, the attempted legitimation proceedings were commenced and completed in Liberia. The record shows that on July 9, 

1969, a court in. Liberia entered a Decree of Legitimation concerning the 

beneficiary. On the same date the court also registered the child's birth; 

this had not been done previously. 

Is the beneficiary a "legitimated child" under section 101(b)(1XC)? 

The statute has three basic requirements: (1) that there be a legitimation; (2) that the legitimating parent or parents have legal custody at the 

time of such legitimation; and (3) that the legitimation take place before 

the child's eighteenth birthday. Legitimation without legal custody does 

not satisfy the statute. On the facts now before us, the majority of this 

Board finds that the petitioner and Mr. Harris, Jr., have not been 

successful in legitimating the child, nor have they established that they 

obtained legal custody. 

The legitimation proceeding did not accomplish its purpose. The petil• Section 101(b)(1)—The term "child" means an unmarried person under twenty-one 

years of age who is-- 

' 

(B) a stepchild, whether or not born out of wedlock, provided the child had not 

reached the age of eighteen years at the time the marriage creating the status of 

stepchild occurred; or • 

(C) 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 State's, 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. 

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Interim Decision #2308 

tion was filed by the child's grandfather, Mr. Harris, Sr., and the decree 

declares the child's grandfather, Mr. Harris, Sr., to be the natural 

father of the child. Petitioner's husband, Mr. Harris, Jr., neither participated in nor was present at the legitimation proceeding. It is the 

petitioner's claim that the decree declaring the child's grandfather to be 

the natural father of the beneficiary is simply a clerical error. The 

decree was dated July 9, 1969. So far as this Board has been informed, 

the alleged error has not been corrected, although Mr. Harris, Sr., the 

child's grandfather, is said to be a lawyer in Liberia. We must presume 

that the court decree does what it says it does. On its face it declares 

Mr. Harris, Sr., to be the father. It is not for us to alter the effect of the 

decree. 

Mr. Harris, Jr., was asked by the immigration ekaminer where and 

with whom Precious Hannah has lived since her birth. From his answers we learn that, first, "She lived with her mother until I left the 

country to come to the United States." Then, "three or four months" 

after he left Liberia, the child and her mother moved in with Mr. 

Harris, Sr., and lived in his residence for approximately four months. 

Thereafter, she (Precious Hannah) lived with her mother at the home of 

her mother's parents (maternal grandparents). Mr. Harris, Jr., alleges 

that his father contributes to the support of the beneficiary and that he, 

Mr. Harris, Jr., and petitioner, Lois, send gifts to the child. The record 

is devoid of any evidence in support of these allegations, such as cancelled cheeks, money order receipts, family snapshots and family letters, 

tending to demonstrate support, custody, and familial bonds. 

The statutory provision that the child be ". . . . in the legal custody of 

the legitimating parent or parents at the time of such legitimation" is 

mandatory. It is not possible to find any period of time during which this 

child was in the care of Mr. Harris, Jr., or in his custody, either actual or 

legal. It is admitted that Mr. Harris, Jr., never lived with the child for 

the three-year period prior to the legitimation proceeding. The decree 

now offered purports to be a decree of legitimation, not a decree awarding custody. Possibly "legal custody" could have been given to Mr. 

Harris, Jr., by the court in Liberia, but it did not do so. We believe 

there was not even " substantial compliance" here. 

We may ask what Congress meant by "legal custody." There are, of 

course, several kinds and degrees of custody. "Legal custody" implies 

either a natural right or a court decree. It is a settled principle of law 

that the mother of an illegitimate child has the primary right to its 

custody, and we cannot presume that she has lost custody. A mother 

may be deprived of the custody of her child but not without cause. 2 

2 There are many guardianship and custody cases In all. Jurisdictions, often concerning 

illegitimate children. 51 A.L.R. 1507, particularly division III; 37 A.L.R. 2nd 2; Jensen 

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Interim Decision #2308 

The minority opinion states that the beneficiary can be considered to 

have been in the custody of Harris, Jr., at the time of the legitimation 

proceeding, even though she may have been in the actual possession of 

her mother, and that "custody was in Harris, Jr., as much as it could be 

under these circumstances." A statement filed by Lois Harris, dated 

December 9, 1969, entitled "Brief for Petitioner---Appellant" declares 

(1). 2): 

.(c) the elild was in the legal custody of her legitimating "parent or parents" at 

the time of the legitimation_ The child/ma and is in the legal custody of her legitimating 

parent, or natural mother, Henrietta Bull, who was at the court proceedings and gave 

her consent to such proceedings as is indicated by the "MOTHER'S AFFIDAVIT" 

which is found among the documents from Liberia. One legitimating parent in custody 

of the child seems to fulfill this part of the requirement. 

This statement is based on the mistaken assumption that the natural 

mother was one of the "legitimating parents." It does, however, state 

the facts and corroborates our conclusion that Mr. Harris, Jr., did not 

have the required legal custody of the beneficiary. The natural mother 

here probably could become a "legitimating parent" only by marrying 

the natural father, in which case they would become the "legitimating 

parents." Neither Henrietta Bull nor Lois Harris can here be considered a "legitimating parent." 

The minority opinion refers several times to the statutory history of 

the adoption and legitimation provisions and to the fact that these 

provisions were inserted to eliminate the frequent eases of fraudulent 

and ad hoc adcptions. This case does not differ from a great many others 

wherein we have denied petitions for illegitimate children of alien 

fathers because the requirements of our law had not been met. 3 There is 

no burden on the Immigration and Naturalization Service to establish 

that fraud is involved before these statutory requirements come into 

action. There has been , no suggestion that any fraud exists here. 

Is the beneficiary a "stepchild" of petitioner under section 101(b)(1)(B)? 

The minority opinion herein states that Hannah Harris is not a stepchild under 101(b)(1)(B), and that she must qualify under 101(b)(1)(C) or 

not at all; that "child" is a defined term; that to be Mr. Harris, Jr.'s, 

legitimated child she must also meet the requirements of 101(b)(1)(C). 

v. Earley, 63 Utah 604, 228 Pac. 217, noted 34 Yale L. Jour. 446; In re Bare's Guardianship, 170 Wis. 543, 174 N.W. 906; Jetutell v. Dupree, 108 Kan. 460, 195 Pac. 861; In re 

Navarro, 77 Calif. 2d 500, 175 Pac. 2d 898, contains a discussion of custody and legitimation of an illegitimate child. In Montana, by statute the mother of an illegitimate minor 

child is entitled its custody, service and earnings. 61 Rev. Code of Montana 108 

(formerly section 5387). See Haynes v. Fillner, 106 Mont. 59, 75 Pac. 2d 802. 

3Reported decisions represent only a small percentage of the cases decided by this 

Board. 

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Interim Decision #2308 

Footnote No. 1 and the concluding paragraph of that opinion are designed to answer petitioner's argument that this is her stepchild. She 

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

authority for her position. 

There have been a number of cases before both the courts and this 

Board on this specific question. The leading case is Nation v. Esperdy, 

239 F. Supp. 531 (S.D. N.Y., 1965). The court stated that it was the 

intent of Congress in enacting section 101(b)(1)(B), which extended the 

definition of stepchild to include an illegitimate child, to keep families 

together. The court held that the father's illegitimate child could be 

considered a stepchild of the father's wife, because the child had always 

lived with them and was supported by them and was for all intents and 

purposes a member of the family. That case set forth the "close family 

unit" doctrine. 

Nation was followed by Matter of The, 11 I. & N. Dec. 449 (BIA 

1965), a case similar on its facts to the instant case, in which we followed 

the Nation doctrine and held that a step-relationship existed because 

the facts showed a long standing, close-family-unit relationship. In 

Matter of Morris, 11 I. & N. Dec. 537 (BIA 1966), we again applied the 

family unit doctrine, but the facts of that case were such that we 

determined that no step-relationship existed. 

In Andrade, supra, the court held that an illegitimate child is a 

stepchild of the woman to whom the natural father is married, solely 

because of the existence of the marriage. The court denied the need to 

establish a preexisting bona fide family unit as a prerequisite, and 

stated that the legislative reports, although emphasizing the importance of preserving the family unit, did not intend section 101(b)(1)(B) to 

require a family unit as a prerequisite to classifying an illegitimate child 

as a stepchild. The court reviewed the Congressional reports which 

accompanied the enactment of this section of law and said that, although 

the reports speak of an intention to preserve the family unit, there is 

nothing to indicate that this was the sole purpose of the legislation. 

In Matter of Soares, 12 I. & N. Dec. 653 (BIA 1968), the Board 

decided that the Andrade holding would not be extended beyond the 

jurisdiction of the court that rendered the decision (Southern District of 

New York). In Matter of Amado and Monteiro, 13 I. & N. Dec. 179 

(BIA 1969), the Board again held that the Andrade rule is not binding in 

cases arising outside the Southern District of New York. The family 

unit rule was followed in reaching the decision, and the appeal was 

dismissed. 

We conclude that the beneficiary in this case cannot be considered the 

legitimated child of Mr. Harris, Jr. "Constructive custody" of the child 

cannot be manufactured from the facts of this record. Mr. Harris, Jr., 

has never had custody of Hannah, legal or physical. We cannot find her 

. 43 
Interim Decision #2808 

to be petitioner's stepchild; she never lived with petitioner and Mr. 

Harris, Jr., so she cannot benefit from the family unit rationale. The 

appeal will be dismissed. 

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

dismissed. 

Maurice A. Roberts, Chairman, Dissenting: 

I have signed the foregoing order dismissing the appeal, since it 

represents the will of the majority of this Board. In my opinion, the 

appeal should be sustained and the visa petition should be granted. 

The petitioner, a citizen of the United States, seeks to confer immediate relative status under section 201(b) of the Immigration and 

Nationality Act upon the beneficiary as her stepchild. The beneficiary 

was born out of wedlock in Liberia on October 8, 1965 to petitioner's 

husband, Moses Poka Harris, Jr. (hereafter referred to as Harris Jr.) 

and Henrietta Bull, both then single. Harris Jr. came to the United 

States in September 1966 as a student on a Liberian Government 

scholarship arid has remained here since , having had his status adjusted 

to that of a permanent resident following his marriage to petitioner on 

June 8, 1968. 

Before leaving Liberia for the United States, Harris Jr. acknowledged to his father (hereafter, Harris Sr.) that the beneficiary was his 

child. He asked Harris Sr. to institute proceedings in his behalf in the 

Liberian court to have Harris Jr. named as legal father of the child. 

Harris Jr. confirmed this request in writing after he arrived in the 

United States. 

Although be never lived with the beneficiary's mother, Harris Jr. 

took care of the child while he was in Liberia and before he obtained his 

scholarship. A few months after he left for this country, the child and 

her mother moved in with Harris Jr.'s parents. After a while, the child 

and her mother moved in with the latter's mother. Harris Sr. contributes to the support of the child and Harris Jr. sends occasional gifts. 

On July 9, 1969, Harris Sr. filed a verified petition in the Liberian 

court, supported by the affidavit of Henrietta Bull, seeking a decree 

legitimatizing the beneficiary as the child of Harris Jr. and Henrietta 

Bull. The court's "Decree of Legitimation", in what is obviously a 

clerical error, refers to Harris Sr.'s petition as reciting that he is the 

natural father of the child. On the basis of this decree, petitioner claims 

to be the beneficiary's stepthother by virtue of her marriage to Harris 

Jr. 

The majority opinion finds this beneficiary unqualified on this record 

on two distinct grounds, based on the following legal conclusions: (1) 

The legitimation decree declares her to be the child of Harris Sr. rather 

than Harris Jr. (2) She was not in the legal custody of Harris Jr. at the 

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Interim Decision #2308 

time of legitimation. In my view, a realistic appraisal of the record 

requires rejection of both conclusions. • 

The Liberian adoption decree should, in my estimation, be accepted 

as what it was designed to be, an adjudication that the beneficiary is the 

legitimate child of Harris Jr. Certainly, this is what the court proceedings were designed to accomplish. The adoption petition itself, filed by 

Harris Sr., makes it clear that he is the father of Harris Jr. and is acting 

in the latter's behalf and at his request beCause Harris Jr. is in the 

United States. Such "next friend" actions are not unknown in the law. 

The adoption petition and the .supporting affidavit' of Henrietta Bull 

state unequivocally that Harris Jr. is the natural father of the child. The 

adoption petition prays for a decree "legitimizing the said minor child, 

Precious Hannah Harris born out of wedlock, so that she might share 

equally in petitioner's son's property. . . in common with other children 

of my son Moses P. Harris Jr. now or hereafter to be born." The caption 

of the decree itself refers to the petition of Harris Sr. "FOR THE 

LEGITIMATION OF HIS MINOR GRANDDAUGHTER." 

The decree nowhere categorically declares Harris Sr. to be the child's 

father. In its preamble, it erroneously paraphrases Harris Sr.'s petition 

as stating that "he is the natural father" of the child. The operative 

order merely grants the petition of Harris Sr. and declares that the child 

shall thenceforth be known as Precious Hannah Harris. Certainly, this 

order is clearly compatible with the notion that the beneficiary was 

considered to be the child of Harris Jr. What was obviously contemplated by all concerned was a decree declaring the beneficiary to be 

the legitimate child of Harris Jr., not of Harris Sr. Under these circumstances, it seems to me that, in the light of the unambiguous recitals 

in the underlying petition and supporting affidavit, we must read the 

"he" in the phrase just quoted as referring to Harris Jr. rather than 

Harris Sr. 

Apart from this one ambiguity flowing from the manifestly incorrect 

recital in the decree's preamble, there is nothing whatsoever in the 

record to support the conclusion, .stated in the majority opinion, that 

"The legitimation proceeding did not accomplish its purpose" and that 

the decree "declares Mr. Harris, Sr., to be the father" (p. 3). In my 

view, the decree should be accepted as sufficient to establish the beneficiary's legitimation as the child of Harris Jr. 

Even if the decree be accepted as sufficient to establish legitimation, 

however, petitioner still must prove that the beneficiary was in the 

"legal custody" of Harris Jr. at the time of the decree, as required by 

section 101(b)(1)(C) of the Act 1 . The majority opinion holds that such 

legal custody in Harris Jr. has not been shown. I disagree. 

' On the surface, if the legitimation decree could be accepted without more as establish45 
Interim Decision #2308 

The provision relating to legitimated children finds its origin in the 

Immigration and Nationality Act of 1952. The prior statute, while 

conferring nonquota status on the minor, unmarried children of United 

States citizer 8, 2did not define the term "child" except to exclude relationships by adoption. 3I have found nothing in the legislative history of 

the 1952 Act provision which expressly discusses the "legal custody" 

requirement or indicates why Congress enacted it. It seems clear, 

however, from the general discussion of the suggested changes that 

Congress was concerned with possible loopholes for fraud_ Experience 

through the y ears had shown that many frauds had been perpetrated by 

United States citizens seeking to bring imposters to this country as 

their children See Senate Report No. 1515, 81st Congress, 2d Session, 

pp. 468-469. Insofar as concerns legitimated children, it is fairly inferable that the purpose of the "legal custody" requirement was to prevent 

abuse through ad hoc legitimation by a putative father who had had 

little or no contact with the child and who had obtained the legitimation 

solely for the purpose of circumventing the immigration laws. 

If the statt.te required "actual custody" or "physical custody" or even 

mere "custody", there could be no doubt that Harris Jr. could not meet 

these conditions, for it is clear that he was physically far removed from 

the beneficiary at the time of the legitimation and had been for almost 

three years. the term "legal custody", however, is much broader and 

encompasses relationships which can be constructive as distinguished 

from actual. If a small child were away at boarding school when its 

parents married and thereby rendered it legitimate, there can be no 

doubt that the child would be considered constructively in the legal 

custody of the parents, even though actually it was in the custody of the 

school. 

On the record in this case, it seems to me that the beneficiary can be 

considered as having been in the legal custody of Harris Jr. at the time 

of the legitimation, even though she may have been in the actual possession of her mother. Although he never lived with the child's mother, 

Harris Jr. supported the child while he was still in Liberia. Before he 

left for this country as a student, he acknowledged to Harris Sr. that he 

ing that the beneficiary is Harris Jr.'s child, all the requirements of section 101(b)(1)(B) of 

the Act would seem to be met, since petitioner's marriage to Harris Jr. obviously occurred 

before the beneficiary reached her eighteenth birthday. The term "child", however, is a 

defined term. If the beneficiary is to be regarded as Harris Jr.'s legitimated child, for 

immigration purposes she must also meet the requirements of section 101(b)(1)(C), including its "legal custody" provision. If the beneficiary is considered Harris Jr.'s illegitimate 

child, a different set of principles comes into play and petitioner must show the existence 

of a close family unit among all three before she can be recognized as the child's 

stepmother within the meaning of section 101(b)(1)(B). 

2 Section 4(a), Immigration Act of 1924, 8 U.S.C. 204(a) (1946 ed.) 

3 Section 28(m), Immigration Act of 1924, 8 U.S.C. 224(1) (1946 ed.) 

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Interim Decision #2308 

was the child's father and he asked Harris Sr. to file legitimation 

proceedings in his behalf in the Liberian court, later confirming this 

request in writing from the United States. The child and her mother 

lived for a time in the home of Harris Jr.'s parents and after they moved 

out Harris Sr. continued to support the child. By that time, Harris Jr. 

on his limited income as a student was unable to make substantial 

contributions. Petitioner informs us in her brief on appeal that Harris 

Jr. acted at the direction of his father, an attorney, in stopping regular 

payments and relying on the latter to support the beneficiary, in keeping with the African custom which requires able parents to care for their 

children and dependents until their children complete school. 

There is no showing that Harris Jr. was remiss in any legal obligation 

to his child. His failure to be present in court for the legitimation is 

understandable in view of the distance and expense involved. Harris Sr. 

acted in his son's behalf, not only in obtaining the legitimation decree 

but also in supporting the beneficiary. It seems to me that custody was 

in Harris Jr. as much as it could be under these circumstances, and that 

he should be considered as having constructive custody of the beneficiary 

at the time of the legitimation. 

In Matter of W—, 7 I. & N. Dee. 373 (BLA. 1956), where , consent, on 

the part of the natural mother to legitimation by the putative father was 

assumed by this Board, we held that by such consent the natural mother 

agreed to transfer of custody to the father. In the case now before us, 

the natural mother of the child expressly ' consented to the legitimation 

by Harris Jr. 

This case is distinguishable from Matter of Amado and Monteiro, 13 

I. & N. Dec. 179 (BIA 1969), and the numerous cases which preceded it, 

in which we required a showing of a close family relationship before we 

would recognize a petitioner as the stepmother of her husband's illegitimate child. The beneficiary in this ease has been duly legitimated. 

On this record, there is no reason to suspect the type, of fraud which 

motivated Congress to impose the "legal custody" requirement. 

I would sustain the appeal. 

Board Member Louisa Wilson has authorized me to state that she 

joins in this dissenting opinion. 

47