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MATTER OF SIMICEVIC

In VISA PETITION Proceedings

A-11904545

Decided by Board September 3, 1963

Since the stepparent-stepchild relationship created by virtue of the petitioner's marriage in 1952 to the father of the beneficiary (latter then 13 years of age) was discontinued and brought to an end when said marriage was legally terminated by divorce in 1957 with custody of the beneficiary awarded the father, and both petitioner and father have subsequently remarried other persons, the petitioner is not now the "parent" of the beneficiary within the meaning of section 101(b) (2), Immigration and Nationality Act, and, therefore, ineligible to petition for third preference quota status on his behalf as her stepson. [Matter of C-, 8 I. & N. Dec. 592, distinguished.]

The District Director of Immigration and Naturalization at Los Angeles, California on June 17, 1963 entered an order denying the visa petition filed by the petitioner on January 7, 1963 to accord the beneficiary third preference status as provided in section 203 (a) (3) of the Immigration and Nationality Act. The case has been certified to this Board for final decision in accordance with the applicable regulations. The petitioner in her petition to classify status of an alien for the issuance of an immigrant visa, which was subscribed and sworn to at San Pedro, California on January 4, 1963, deposed that she is a native and citizen of Yugoslavia, lawfully admitted to the United States for permanent residence at Chicago, Illinois on April 6, 1960.

The beneficiary was born in Yugoslavia on February 15, 1939. He has been living in Canada since October 1962. On examination of the record we find that the beneficiary was 13 years of age when the petitioner married the beneficiary's father on July 31, 1952. The petitioner separated from the beneficiary's father on October 27, 1956 and their marriage was terminated by divorce on December 3, 1957, at which time custody of the beneficiary was awarded to his father with whom he has since resided. The petitioner testified that no issue was born from her marriage to the beneficiary's father. The petitioner

testified that both she and the beneficiary's father had each remarried on two occasions since being divorced on December 3, 1957.

Under section 101(b) (1) (B) of the Immigration and Nationality Act the term "child" means an unmarried person under 21 years of age who is a stepchild, whether or not born out of wedlock, provided the child has not reached the age of 18 years at the time the marriage creating the status of stepchild occurred. Section 101(b)(2) of the Act defines the term "parent," "father," or "mother" as meaning a parent, father, or mother only where the relationship exists by reason of any of the circumstances set forth in section 101 (b) (1) of the Act. Hence, under the pertinent statutes the petitioner and the beneficiary acquired the status of "mother" and "child," respectively, when the petitioner married the beneficiary's father on July 31, 1952.

The District Director's conclusion that the petitioner was not the beneficiary's parent or mother at the time she executed and filed on his behalf the petition to accord him preference quota status under section 203 of the Immigration and Nationality Act and his reasons therefor are concurred in by this Board. In Matter of C—, 8 I. & N. Dec. 592, this Board held that a married stepdaughter, 45 years of age, was eligible on petition for fourth preference quota status as a "daughter" within the meaning of section 203 (a) (4) of the Act, as amended, provided there existed an original relationship of "stepparent" and "stepchild" validly created in accordance with the provisions of section 101 (b) (1) (B) of the Act, as amended. In Matter of C-, supra, the marriage between the beneficiary's mother and the petitioning stepfather was in existence when the petition was filed on behalf of the beneficiary and at the time of the Board's decision on March 4, 1960. In other words, the relationship established by reason of section 101(b) (1) (B) of the Act does not cease to exist when the stepchild marries or reaches 21 years of age provided the marriage that created the status of stepchild is in existence. In Matter of C—, supra, there was a reuniting of a family unit that had been in existence since the beneficiary was seven years old.

The facts in the instant case are readily distinguishable from those present in Matter of C—, supra. In the instant case the evidence establishes that the relationship between the petitioner and the beneficiary lapsed on October 27, 1956 when the petitioner separated from the beneficiary's father. In this connection, it is noted that the petitioner in her application for an immigrant visa, subscribed and sworn to before a United States Consular officer at Oslo, Norway on March 31, 1960, deposed she had been living and employed in Oslo, Norway since 1956. The relationship ceased to exist in fact on December 3, 1957 when the petitioner's marriage to the beneficiary's father was dissolved pursuant to a decree of divorce. The relationship between the peti

tioner and beneficiary that came into being by reason of the petitioner's marriage to the beneficiary's father in 1952 was one of "affinity," as distinguished from consanguinity.

Consanguinity or blood relationship is incapable of dissolution. "Affinity" is generally defined to be the relationship by marriage between a husband and his wife's blood relatives, or between a wife and her husband's blood relatives. Hence, it has been held that upon dissolution of a childless marriage by divorce and remarriage of wife or husband, "affinity" between divorced husband and wife's children of a former marriage is extinguished. When the marriage is dissolved, and there are no children of the marriage, society is not served or benefited by the continuance of the fiction when the cause has ceased (cf. Brotherhood of Locomotive Firemen and Enginemen v. Hogan, et al. and authorities cited, 5 F. Supp. 598).

The petitioner herein has testified that no issue resulted from her marriage to the beneficiary's father and that she and the beneficiary's father have each remarried twice since their divorce in December 1957. The evidence of record shows the beneficiary's father was awarded custody of him at the time of the aforementioned divorce and that the beneficiary thereafter resided with his father until at least October 1962. The relationship which came into being between the petitioner and the beneficiary by virtue of the petitioner's marriage to the beneficiary's father in 1952 was discontinued and brought to an end when the aforementioned marriage was legally terminated by divorce in December 1957. Moreover, the beneficiary's father's two remarriages created additional stepmothers of the beneficiary. The statute requires that the petitioner be the "parent" at the time of the filing of the petition. In this case the petitioner cannot meet this statutory requirement and on the basis of all the evidence present in this record together with the authorities cited, it is our considered opinion that the petitioner is not the "parent" of the beneficiary and as a consequence thereof may not petition for issuance of an immigrant visa on his behalf. Clearly, it cannot be held that a family unit is being reunited in this case. Upon full consideration of all the evidence of record, the findings of fact, conclusion of law and the order entered by the District Director of Immigration and Naturalization on June 17, 1963 are hereby approved. Hence, the following order will be entered.

ORDER: It is ordered that the order entered by the District Director of Immigration and Naturalization at Los Angeles, California on June 17, 1963, denying the petitioner's petition to accord the beneficiary third preference status as provided in section 203 (a) (3) of the Immigration and Nationality Act be and the same is hereby approved.

MATTER OF YANEZ-CARRILLO

In EXCLUSION Proceedings

A-13536165

Decided by Board August 27, 1963

The retention provisions of section 301(b), Immigration and Nationality Act, requiring continuous physical presence in the United States for at least 5 years between the ages of 14 and 28, do not operate to deprive an individual of United States citizenship until he has had a reasonable opportunity to come to the United States as a U.S. citizen after learning of such claim to citizenship.

EXCLUDABLE: Act of 1952-Section 212(a)(20) [8 U.S.C. 1182 (a) (20)]—Immigrant without visa.

The case comes forward pursuant to certification by the special inquiry officer of his decision dated June 10, 1963, finding the applicant to be an alien and excludable as an immigrant not in possession of proper documents.

The facts of the case are not in dispute. The record relates to a native of Mexico, single, who seeks admission into the United States as a United States citizen. He was born in Mexico on June 24, 1935. His father was a native and citizen of Mexico who never resided in the United States, but his mother was born in Ysleta, Texas, and is a citizen of the United States. She resided in the United States for various periods prior to the birth of the applicant. The applicant's parents married in Mexico on October 15, 1932, and he is the legitimate issue of that marriage. The applicant entered the United States for the first time as a citizen on January 7, 1963, in possession of a United States citizen's identity card issued to him at the American Consulate at Juarez, Mexico, on the same date. Previously he had entered and remained in the United States on different occasions as a nonimmigrant agricultural worker from September 1955 to December 1955, September 1956 to December 1956, September 1957 to January 1958, May 1958 to August 1958, September 1959 to December 1959, and September 1960 to September 1961. The last two periods have been corroborated by the Service and there is no reason to doubt

the applicant's testimony as to the dates he came to the United States as a nonimmigrant worker.

The applicant testified that he went to the American Consulate in February 1962 to inquire about an immigrant visa and at that time learned for the first time that he might be a United States citizen through his mother. Prior to that date he had never known he might have a claim to United States citizenship nor had he ever discussed the possibility with a United States Government official. At the end of December 1962, the applicant received a letter from the American Consulate in Juarez, Mexico, which informed him that he could be issued a document as a citizen of the United States and that it would be necessary for him to proceed immediately to the United States to live.

The applicant's claim to United States citizenship rests upon section 1993, Revised Statutes, as amended by the Act of May 24, 1934, through his mother who is a citizen of the United States and who had been present in the United States prior to his birth. Under section 201 (g) of the Nationality Act of 1940, the applicant was required to reside in the United States before his sixteenth birthday; but under sections 301(b) and (c) of the Immigration and Nationality Act of 1952, he could regain United States citizenship by coming to the United States prior to his twenty-third birthday and by being continuously physically present in the United States for at least five years, providing that such physical presence followed the attainment of the age of 14 years and preceded the age of 28 years. Section 16 of the Act of September 11, 1957, states that absences from the United States of less than twelve months in the aggregate during the period for which continuous physical presence in the United States is required shall not be considered to break the continuity of such physical presence. The applicant here reached his twenty-third birthday on June 24, 1958, at which time he had been in the United States for four different periods as an agricultural worker. However, there was an absence in excess of twelve months from August 1958 until September 1959 which broke the continuity of his residence and the time prior thereto could not be computed for the purposes of complying with the physical presence requirement of section 301 (b) of the Act.

The Department of State in a memorandum (Ex. 6) expresses the opinion that the evidence of record establishes that the applicant was never aware of his possible claim to United States citizenship through his mother prior to January 16, 1962, on which date his mother applied for a United States citizen's identification card at the Consulate. On the basis of the Attorney General's opinion of May 24, 1962 (Matter of C-S-, Int. Dec. No. 1281), it was concluded that the applicant had applied at the Consulate for a determination of his United

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