G
BEFORE THE BOARD
Discussion: The case comes forward pursuant to the provisions of
The record relates to a native and citizen of Hungary, born December 23, 1897, who first entered the United States for permanent residence in 1913. He became a naturalized citizen on October 23, 1922. The respondent made several trips to Czechoslovakia, the last absence being from May 1939 until his return to the United States on March 28, 1950. On October 7, 1946, the respondent refused an opportunity for repatriation at the American Consulate in Prague, Czechoslovakia, and thereupon lost his American citizenship by expatriation through residence abroad.
The respondent‘s first wife had died in 1924 and his second wife whom he married in 1926 became a naturalized citizen in 1928. The respondent‘s relationship with his second wife was not harmonious and after a number of separations the wife secured a divorce on January 24, 1945, in the State of New Jersey while the respondent was in Czechoslovakia, service being made by publication. Subsequent to the divorce, she paid a short visit in 1947 to the respondent in Czechoslovakia. The evidence indicates respondent‘s awareness of the fact that his wife had divorced him. Despite the divorce,
In deportation proceedings the special inquiry officer denied all discretionary relief and ordered deportation on the charge contained in the order to show cause. On appeal, the Board on May 13, 1958, sustained the finding of deportability, but in view of his 30 years’ residence in the United States and the fact that he had a citizen son in this country ordered the proceedings reopened to permit the respondent to establish eligibility for relief under the last clause of section 7 of the Act of September 11, 1957 (Public Law 85-316), and granted advance permission to reapply for admission after deportation. A reopened hearing was given the respondent, and the special inquiry officer in a decision dated June 16, 1958, found the respondent ineligible for relief under section 7 of Public Law 85-316 on the theory that the respondent was not a “parent” as defined in section 101(b) (1) and (2). This conclusion was based on the fact that respondent‘s son was over 21 years of age, whereas the definitions of “child” and “parent” in section 101(b) (1) and (2) of the Immigration and Nationality Act refer to the child as being an unmarried person under 21 years of age. By order dated September 25, 1958, the Board affirmed the finding of the special inquiry officer without discussion. The Board merely adopted the language of the special inquiry officer who quoted section 14 of Public Law 85-316 which provides that except as otherwise specifically provided in this Act, the definitions contained in subsection (a) and (b) of section 101 of the Immigration and Nationality Act shall apply to section 7 of this Act, and then adopted the conclusion of the special inquiry officer that since there was nothing “otherwise specifically provided,” the definitions of section 101(b) (1) and (2) of the Immigration and Nationality Act controlled the meaning of the word “parent” as used in section 7 and that the definition stated that the relation of parent exists only when the offspring is an unmarried person under 21 years of age. Upon reconsideration, a further study of the statutory language and of the legislative history leads us to the conclusion that the strict interpretation of the special inquiry officers should be modified.
The term “parent” is defined in relation to the term “child” in section 101(b) (1) and (2) of the Immigration and Nationality Act and reads as follows:
(1) The term “child” means an unmarried person under twenty-one years of age who is—
(A) a legitimate child; or
(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 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.
(D) an illegitimate child, by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother;
(E) a child adopted while under the age of fourteen years if the child has thereafter been in the legal custody of, and has resided with, the adopting parent or parents for at least two years: Provided, That no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.
(2) The terms “parent,” “father,” or “mother” mean a parent, father, or mother only where the relationship exists by reason of any of the circumstances set forth in (1) above. (Emphasis supplied.)
The Department of State, in a case involving an illiterate mother of a twenty-nine year old American citizen, held that the mother was a “parent” and entitled to the exemption from illiteracy provided in section 212(b) on the ground that the language contained in section 101(b) (2) which reads “circumstances set forth in (1) above” refers to circumstances leading to a child-parent relationship as specified under subparagraphs (A), (B), (C), (D), or (E); namely, a legitimate birth, a stepchild relationship, a legitimated child, illegitimacy in relation to the mother, or adoption. The word “circumstances” as used in section 101(b) (2) does not relate to the words “unmarried” or “under twenty-one years of age” as used in section 101(b) (1) of the act. (Note 7, Revised August 1, 1958, Visa Handbook 22 CFR 42.1).
In view of the differing interpretations, the Commissioner of the Immigration and Naturalization Service requested that the conflict be resolved. The Commissioner, while not expressing any views on the matter, may be regarded as tacitly agreeing with the interpretation reached by the special inquiry officer, since the Service Representative, in oral argument on July 24, 1958, was content to rest on the record.
In a communication dated May 6, 1959, the Department of State expanded its views expressed in the note referred to above. The Department agreed that the terms “parent” and “child” are interrelated and that the definition of a “child” as contained in section 101(b) (1) of the act is a limitation upon the meaning of the term “parent.” It did not agree, however, that an alien is a “parent” only where the person through whom such alien claims an exemp-
There can be little doubt that the legislative history of the Immigration and Nationality Act clearly indicates that the Congress intended to provide for a liberal treatment of children and was concerned with the problem of keeping families of United States citizens and immigrants united.1 In waiving the excluding provisions of existing law relating to persons afflicted with tuberculosis, the Congress desired that this waiver be extended in behalf of close
It is, therefore, apparent from the legislative history that Congress had in mind the family unit as such, that is, close relatives of United States citizens and permanent resident aliens, which it desired to keep together in order to alleviate the hardship of enforced separations. Of course, as to the term “child,” the restrictive limitations of age and marital status were kept but the categories of relationship were widened to include illegitimate stepchildren, illegitimate children in relation to the mother and adopted children. While for immigration purposes a “child” ceases to be a child even if it fits into the various categories when it reaches the age of twenty-one or becomes married, the parent, once the required relationship has been established, always remains a parent. This conclusion is warranted not only by a study of the legislative history but from a careful reading of the words of the statute. In view of the conclusion reached, the conflict has been resolved and the need for certification to the Attorney General no longer exists.
The meritorious factors in the case has already been dwelt upon. The respondent has already been granted advance permission to reapply for admission after deportation. In addition, we will authorize voluntary departure and preexamination. In preexamination proceedings, the respondent will be eligible for consideration of the relief contained in section 7 of the Act of September 11, 1957.
Order: It is ordered that the outstanding order and warrant of deportation be and the same is hereby withdrawn.
It is further ordered that the alien be permitted to depart from the United States voluntarily without expense to the Government, to any country of his choice, within such period of time, in any event not less than 90 days, and under such conditions as the officer-in-charge of the district deems appropriate.
It is further ordered that preexamination be authorized, conditioned upon a showing by the alien that he can obtain the prompt issuance of an immigrant visa.