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 . 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 establish 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 citizens,2 did not define the term "child" except to exclude relationships by adoption.3 I 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 years 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 statute 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 distinquished 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.) 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. Dec. 373 (BIA 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 case 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. MATTER OF RESTUBOG In Deportation Proceedings A-17862399 Decided by Board December 21, 1973 Under the concepts of res judicata, a motion to reopen for possible termination of deportation proceedings must be denied where the motion was filed subsequent to a Court of Appeals review sustaining a finding of deportability and ordering a remand of the case for the sole purpose of permitting respondent to designate the country to which she is to be deported, and the evidence underlying the motion accrued prior to the court order. CHARGE: Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant transitremained longer than permitted. ON BEHALF OF RESPONDENT: Dan P. Danilov, Esquire 3828 Seattle First National Bank Building This case is before us on remand from the United States Court of Appeals for the Ninth Circuit for entry of an appropriate order, in pursuance of the procedure we suggested in Matter of Abellana and Donovan, 14 I. & N. Dec. 262 (BIA 1973). On August 23, 1973, we entered an order upholding the immigration judge's denial of respondent's application for adjustment of status under section 245 of the Immigration and Nationality Act, but granting respondent the privilege of voluntary departure. On judicial review, our order was affirmed, but the record was remanded "for the sole purpose of permitting [respondent] to designate the country to which she is to be deported," Restubog v. INS, 9 Cir. No. 72-2663, October 18, 1973. Following remand but before we received the record, counsel for respondent filed a motion to reopen in order that respondent might seek termination of the proceedings under section 241(f) and adjustment of status under section 245, coupled with a waiver of inadmissibility under section 212(a)(19), pursuant to section 212(i) of the Act. The motion is supported by counsel's affidavit; by a birth certificate showing the birth of a child to respondent on December 9, 1970 at Seattle, Washington; by evidence showing that an immediate relative visa petition in respond ent's behalf was approved by the district director on March 23, 1973; and by an application for a section 212(i) waiver, based on respondent's relationship to her child and to her mother, both United States citizens. By the terms of the Court of Appeals order, which is binding on us, remand must be for the sole purpose of permitting the respondent to designate the country to which she is to be deported. Had the new evidence underlying the motion accrued after the Court of Appeals order, we might be justified in expanding the scope of our remand order, Matter of Campos, 13 I. & N. Dec. 148 (BIA 1969). However, all the events now relied on took place before the Court of Appeals order: the child was born on December 9, 1970 and the visa petition was approved on March 23, 1973. Under familiar concepts of res judicata, the Court of Appeals judgment binds us not only as to the issues actually raised and adjudicated by the court but also as to the issues which could have been raised. The only issue open for consideration on remand, then, is the designation of the country to which respondent is to be deported. We note, in passing, that respondent has been found deportable solely on the ground that after entry as a non-immigrant she remained longer than permitted. Section 241(f) of the Act, therefore, would not benefit her in any event. Cabuco-Flores v. INS, 477 F.2d. 108 (C. A. 9, 1973). ORDER: The hearing is reopened and the record is remanded to the immigration judge for the sole purpose of permitting the respondent to designate the country to which she is to be deported. |