Plaintiff, whose petition for an immigration preference status for his alleged son was denied after the petition had been fully processed within the U.S. Immigration Service sought declaratory relief from the denial. Before Judge MacMahon of the United States Court for the Southern District of New York, the Service moved for summary judgment and petitioner cross-moved. Judge MacMahon, filing an opinion reported at
Waterman and Gurfein, Circuit Judges, and Blumenfeld,*fn* District Judge.
Is a child born to unmarried parents in the People's Republic of China a "legitimate" child? That is the single question presented by this very well briefed and argued appeal. A relevant Chinese statute provides:
Children born out of wedlock shall enjoy the same rights as children born in lawful wedlock. No person shall be allowed to harm them or discriminate against them.
Where the paternity of a child born out of wedlock is legally established by the mother of the child or by other witnesses or by other material evidence, the identified father must bear the whole or part of the cost of maintenance and education of the child until the age of eighteen.
Marriage Law of the People's Republic of China, Article 15. Construction of this statute, necessary in deciding the issue before us, is not surprisingly a question of first impression in our court, but it is nonetheless one whose resolution will not be without impact on the application of our immigration laws.
This case was brought by Chin Lau, a Chinese citizen and an alien permanently resident in the United States, who seeks to obtain a visa preference for one Kin Kok Lau, who Chin Lau asserts is his son by a woman Chin never married. The defendant is Maurice Kiley, sued in his official capacity as New York District Director of the Immigration and Naturalization Service ("INS"). To aid in understanding the facts, we first describe the statutory context within which visa preferences are made available.
Under the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. (1970), immigration into the United States from the Eastern Hemisphere is restricted to a total allowance of 170,000 visas per fiscal year*fn1 with a 20,000 limit per country.*fn2 Operating within the hemispheric limitation is a seven-tier preference system, primarily designed to further the basic objective of reuniting families and also to attract to this country aliens with needed skills. S.R.No. 748, 89th Cong., 1st Sess. 13, reprinted in  U.S. Code Cong. & Ad. News 3328, 3332. Under the preference system, which is set forth in section 203(a) of the Act, 8 U.S.C. § 1153(a), and so far as relevant here, the first twenty percent of the visas are made available to qualified immigrants who are the unmarried sons or daughters of United States citizens (the "first preference" class), and the next twenty percent to the spouses, unmarried sons or unmarried daughters of aliens lawfully admitted for permanent residence (the "second preference" class).*fn3 While neither of the terms "sons" or "daughters" is defined in the Act, it seems well established that in order to qualify as a "son" or "daughter" for the purpose of obtaining visa preference, one must once have qualified as a "child" under section 101(b)(1) of the Act, 8 U.S.C. § 1101(b)(1). Matter of Coker, Interim Decision No. 2255 (B.I.A.1974). Section 101(b)(1), in relevant part, defines "child" as:
an unmarried person under twenty-one years of age who is -
(A) a legitimate child; 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[.]*fn4
Determination of a child's legitimacy is governed by the law applicable at the time and place of his birth. Matter of Kwan, 13 I. & N. Dec. 302, 305 (B.I.A. 1969).
To obtain a preference, a citizen of the United States or an alien lawfully admitted for permanent residence who claims that the alien seeking the preference is entitled to preference status by reason of the relationship described in section 203(a) files a petition for such classification with the Attorney General.*fn5 The alien seeking the preference is the "beneficiary"; the citizen or permanent resident alien filing on his behalf is the "petitioner."
Having set the stage, we turn to the facts of the present appeal as petitioner alleges them to be.
Chin Lau ("Lau"), a native of China and citizen of the People's Republic of China ("PRC"), is an alien lawfully admitted to the United States in 1966 for permanent residence here and now residing in New York City. In 1947, while living in Canton, Lau began cohabiting with a woman named Chin Dung You, whom he never married. In 1948, a daughter was born to the couple, and, on June 16, 1952, a son, Kin Kok Lau, was born. Lau has always acknowledged his paternity of these children. Until 1958, when he escaped from Communist China to Hong Kong, Lau lived with them and supported and maintained them, together with his mother, in his home in Canton. From 1958 to 1966, while he lived in Hong Kong, Lau sent money to his mother for the support of his son and daughter.
In 1966, after obtaining a visa preference through his father who was an alien lawfully admitted for permanent residence in the United States, Lau obtained an immigrant visa and was admitted to the United States as a permanent resident alien. While in the United States, he has continued to support his children in China. In 1973, Lau married a woman in New York; this is his first and only marriage.
On September 13, 1973, Lau filed a visa petition on behalf of his son, Kin Kok Lau, seeking to obtain preference status for Kin Kok Lau pursuant to section 203(a)(2) of the Immigration & Nationality Act, 8 U.S.C. § 1153(a)(2), which gives spouses and unmarried children of aliens lawfully admitted for permanent residence "second preference" in obtaining immigrant visas. Upon obtaining an immigrant visa, Kin Kok Lau could procure an exit visa from the People's Republic of China and emigrate to this country.
In support of his petition, Lau submitted affidavits from himself, his first cousin, and a woman from a neighboring village in China, all of which stated, on the basis of personal knowledge, that Lau was the father of Kin Kok Lau and that Kin Kok was known throughout Lau's village as Lau's son. He also offered other secondary evidence, including a photograph taken in China in 1954, of himself, Chin Dung You, and their two children, as well as letters from Kin Kok Lau thanking Lau for sending money for his support.
The INS denied Lau's petition on February 28, 1974. The District Director held that, under section 101(b)(1) of the Act, 8 U.S.C. § 1101(b)(1), only a legitimate or legitimated child could claim an immigration status through his father, and since "the beneficiary was illegitimate at birth and * * * no evidence has been presented to establish that the beneficiary has been legitimated[,]" the petition was denied.*fn6 No determination was made as to whether Kin Kok was indeed Lau's natural child.
On October 23, 1974, the Board of Immigration Appeals affirmed the decision of the District Director and dismissed the appeal. The Board observed that to qualify as a "son" for the purpose of obtaining a visa preference, one must have once qualified as a "child" under section 101(b)(1) of the Act - that is, insofar as relevant here a "son" must be (1) a legitimate child, or (2) a child legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile if legitimation takes place before the child is eighteen and while the child is in the legal custody of the legitimating parent. Rejecting Lau's arguments that under the law of the People's Republic of China there is no distinction between children born in wedlock and children born out of wedlock, the Board, following an earlier decision, Matter of Lo, 14 I. & N. Dec. 379 (B.I.A. 1973), held that since Lau had not shown that he had ...