Gender Fairness and Immigration
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Gender Fairness and Immigration

July 6, 2010, 2:40 pm
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Sponsoring the illegitimate child
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by Reynold N. Mason Esq.

Gender Fairness and Immigration: sponsoring an illegitimate child

I detest the use of the word “illegitimate” to refer to a child whose parents were not married when he or she was born. But this distinction is critical when petitioning for a child born out of wedlock; as such children are now referred to in the law.  Despite the decreasing legal relevance of illegitimacy, an important exception may be found in the nationality laws of the US, which discriminates against illegitimate children in the application of immigration laws, particularly in cases where the child's connection to the country lies only through the father.

Fresh out of law school in the early 1980’s, I confronted this issue head on when I decided to file an immigration petition on behalf of my half-sister, my father’s illegitimate child.  Initially, an illigitimate child could only be sponsored by the mother.  The father could not sponsor his illegitimate child under the law  in 1980. To get around this problem, I filed the petition through my mother as the stepmother.   But that was not the end of it. For the next 18 months I scurried about getting affidavits from old friends and neighbors who knew my father and could speak of his relationship with his daughter.  I had to establish to the satisfaction on the INS that my half-sister was part of our close family unit and, that my father had close emotional ties with his daughter.  This was a near impossible task because in the Caribbean we do not file taxes as this is understood in the US. My father had never filed a tax return in his entire life. There is no health insurance and most fathers support their illegitimate children not simply by doling out cash, but by supplying the child’s other needs.  So copies of money orders, medical records or insurance records were out of the question.  Complicating my petition even more, was the fact that my half-sister did not carry my father’s surname; the Catholic Church routinely declined to name the father on its baptismal certificate if the parents were not married.  Seeking any legal loophole to get our petition approved by INS, I happened upon a case called Matter of McMillan; in that case, a petition by a step-mother on behalf of her husband’s illegitimate children, twin boy’s, had been denied. I read on looking for something to hang my hat on.


Matter of McMillan

The McMillan twins had been born in England. Abandoned by their natural mother, their father sent them to Grenada where they were raised by their paternal grandmother.  I, my father and all my siblings were born in Grenada.  I read on, fascinated.   INS denied their petition, McMillan appealed, and the BIA (Board of Immigration Appeals) for the first time ruled that:  Persons who become stepchildren through the marriage of a natural parent prior to their 18th birthday fall within section 101(b) (1) (B) without further qualification (i.e., there is no need to show a close family unit). It turned out that McMillan was from my own village and the twin boys had been my playmates growing up.  This remained the law until the Child Citizenship Act was enacted in 2000, allowing fathers, like McMillan, to petition for their illegitimate children. Still the father of an illegitimate child must satisfy a number of criteria that mother’s of illegitimate children are not required to satisfy.  This unfairness in the law has been challenged as a violation of the Equal protection requirement of the 14th Amendment. But so far the Supreme Court has turned back all challenges.

States have broad power when it comes to making classifications but  they may not draw a line which constitutes an invidious discrimination against a particular class.( See Skinner v. State of Oklahoma, 316 U.S. 535.)   The end result is whether the distinction between fathers and mothers of illegitimate children is a rational one.  The court has held that congress is entitled to decide whom it shall let in and under what conditions.  The court in the recent past has, however, come down on the side of illegitimate children. It has held that illegitimate children may not be excluded from sharing equally with other children in the recovery of workmen's compensation benefits for the death of their parent. (Weber v. Aetna Casualty & Surety  Co.,  406 U.S. 164  (1972).)  And has said that under this decision, a State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally.  The Supreme Court in March agreed to hear and decide if mothers and fathers may be treated differently in determining whether their illigitimate children may claim American citizenship. The case involves Ruben Flores-Villar, who was born in Tijuana, Mexico, but was raised by his father and grandmother, both American citizens, in San Diego. His mother was Mexican, and his parents were not married. Why should fathers of illegitimate children be denied the right to file for their children when mothers are allowed to do so with little or no restrictions?  Courts have no problem garnishing the paychecks of fathers of illegitimate children for child support.  They should allow these same fathers to sponsor their children.












Author: Reynold Mason
Reynold N. Mason teaches law courses at Zenover Educational Institute In Atlanta, Georgia. He has been a judge on New York City Civil Court and, a Justice on New York State Supreme Court. Mason has been an adjunct professor of law at Medgar Evers College and Monroe College in New York. He has authored several legal opinions published in New York Miscellaneous Reports and New York Official Reports as well as the New York Law Journal. He lives in Atlanta.
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