Interim Decision #1951 

MATTER OF AMADO AND MONTEMO 

In Visa Petition Proceedings 

A-18018518-9 

Decided by Board April 1, 1969 

Beneficiaries—the illegitimate children of the United States citizen petitioner's husband and two other women—whom petitioner has never seen, with 

whom she. has had no personal contact, and who live with their respective 

natural mothers, are not the stepchildren of petitioner under section 

101(b) (1) (B), Immigration and Nationality Act, as amended, within the 

close-family-unit rationale of Nation v. Eeperdy, 239 F. Supp 531 (1965). 

While the circumstances of the case fall within the ambit of Andrade v. 

Esperdy, 270 F. Supp. 516 (S.D. N.Y., 1967), the Andrade rationale (no 

close family unit) is not binding in cases, as the instant one, arising outside the jurisdiction of the Southern District of New York. 

ON BEHALF or PETITIONER: Guy A. Scutell, Social Worker 

Board of Higher Education 

Division of Immigration and Americanization 

73 Tremont Street 

Boston, Massachusetts 02108 

The cases come forward on appeal from the order of the District Director, Boston District, dated January 10, 1969 denying 

the visa petitions for the reasons that the petitioner has failed to 

establish that the relationship of stepmother and stepchildren exists between the petitioner and the beneficiaries. 

The petitioner, a native of Portugal, a naturalized citizen of 

the United States, 38 years old, female, seeks immediate relative 

status on behalf of the beneficiaries as her stepchildren. The beneficiaries are natives and citizens of Portugal. The female beneficiary was born November 16, 1953 and the male beneficiary was 

born May 14, 1956. The petitioner and her husband, the putative 

father of the beneficiaries, were married on June 13, 1959 at 

Duxbury, Massachusetts. 

The birth certificate of the female beneficiary shows that she 

was born on November 16, 1953, the illegitimate daughter of 

Domingos Barbosa Amado, single; and that the inscription was 

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Interim Decision #1951 

made by the declaration of the father. The birth certificate of the 

male beneficiary shows that he was born on May 14, 1956, the illegitimate son of Francisca Monteiro, single; and that the declaration of birth was made by the mother. 

A memorandum in the file dated December 18, 1968 discloses 

that the petitioner has never seen either child and that they are 

living with their respective natural mothers. The putative father 

said that he had not seen the children since 1956 when he came to 

Brazil. He claims that the beneficiaries are living with his father 

in the Cape Verde Islands. The natural father exhibited receipts 

for money sent to a school in the Cape Verde Islands covering the 

period from 1965 to 1967 but the receipts do not indicate that the 

payments were to the children. He has never legitimated these 

children. The husband stated that the children have never met his 

wife, the petitioner, and have never lived with them in their 

home or elsewhere. 

The cases are to be distinguished from Nation v. Esperdy, 239 

F. Supp. 531 (S.D.N.Y. 1965). In that case the beneficiary was 

abandoned by her mother in infancy, the plaintiff commenced caring for the beneficiary in 1949 and married the beneficiary's natural father in 1952 when the beneficiary was five years old. As 

soon as the plaintiff became a naturalized citizen in 1962, she immediately thereafter petitioned for the beneficiary's, admittance 

on a nonquota visa. The, court ruled that, since the plaintiff, her 

husband, and the beneficiary had concededly made up a close family unit, on the facts of that case the child should properly be regarded as 'the plaintiff's stepchild within the meaning of section 

101 (b) (1) (B) of the Immigration and Nationality Act, While we 

have adopted the rationale of Nation and now apply it where 

the facts spell out a close family unit, Matter of The, 11 I. & N. 

Dec. 449 (1965), that is not the situation here. 

In the instant case, the petitioner has never seen the, beneficiaries and has testified that they are both living with their natural 

mothers. The petitioner was naturalized in 1957 and married her 

husband in 1959. During the interval between her marriage until 

the visa petition was filed on November 7, 1967, the petitioner 

has not had any personal contact with the beneficiaries. The father has not seen the beneficiaries since 1956. Under these circumstances, since the petitioner and the beneficiaries never made 

up a close family unit, the rule of Nation does not apply. 

It is true that in Andrade v. Esperdy, 270 F. Supp, 516 (S.D. 

N.Y., 1967), a decision by another judge of the same district, the 

Nation rule was extended to a situation where, as here, there had 

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Interim Decision #1951 

never been a close family unit. Were we to accept the Andrade 

conclusion as a rule of general applicability, we would sustain the 

appeal in these cases. 

With all due respect to the Andrade court, we do not accept its 

opinion as definitive on this issue. As we recently pointed out in 

Matter of Lim, Interim Decision No. 1947 (March 13, 1969), 

the fact that a lower federal court has rejected a legal conclusion 

of this Board does not require us to recede from that conclusion 

in other jurisdictions. Similarly, the Government's failure to appeal for the adverse decision in Andrade does not of itself indicate acquiescence. While we must apply the Andrade rule in cases 

which arise in the Southern District of New York, we are not so 

bound in cases arising in other jurisdictions. Conceivably, reviewing courts in other jurisdictions may agree with our reading of 

the statute. 

In Matter of Soares, 12 I. & N. Dee. 653, (1968), we pointed 

out why we doubted that Congress intended the result reached in 

Andrade. For the reasons stated in Matter of Soares, we will dismiss this appeal. 

ORDER: It is ordered that the appeal be and it is hereby dismissed. 

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