U.S. Supreme Court Fiallo v. Bell, 430
U.S. 787 (1977) Fiallo v. Bell No. 75-6297 Argued December 7,
1976 Decided April 26,
1977 430
U.S. 787 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW
YORK Syllabus Sections 101(b)(1)(D) and 101(b)(2) of the Immigration and
Nationality Act of 1952, which have the effect of excluding the
relationship between an illegitimate child and his natural father
(as opposed to his natural mother) from the special preference
immigration status accorded by the Act to the "child" or "parent"
of a United States citizen or lawful permanent resident, held not to be unconstitutional. Pp. 430 U. S.
792 -800.

															(a) This Court's cases

															"have long recognized the power to expel or exclude aliens as a
fundamental sovereign attribute exercised by the Government's
political departments largely immune from judicial control," Shaughnessy v. Mezei, 345 U. S. 206 , 345 U. S. 210 ; see also Kleindienst v. Mandel, 408 U.
S. 753 ; Harisiades v. Shaughnessy, 342 U.
S. 580 , 342 U. S.
588 -589, and no factors exist in the instant case
warranting a more searching judicial scrutiny than has generally
been applied in immigration cases. Pp. 430 U. S.
792 -796.

															(b) In enacting the challenged statutory provisions, Congress
was specifically concerned with clarifying the previous law so that
the illegitimate child in relation to his mother would have the
same status as a legitimate child, and the legislative history of
those provisions reflects an intentional choice not to provide
preferential immigration status by virtue of the relationship
between an illegitimate child and his natural father. The
distinction is one of many (such as those based on age) drawn by
Congress pursuant to its determination to provide some -- but not
all -- families with relief from various immigration restrictions
that would otherwise hinder reunification of the family in this
country. The decision as to where to draw the line is a policy
question within Congress' exclusive province. Pp. 430 U. S.
797 -798.

															(c) Whether Congress' determination that preferential status is
not warranted for illegitimate children and their natural fathers
results from a perceived absence in most cases of close family ties
or a concern with serious problems of proof that usually lurk in
paternity determinations, it is not for the courts to probe and
test the justifications for the legislative decision. Kleindienst v. Mandel, supra at 408 U. S. 770 .
Pp. 430 U. S.
798 -799. 406 F.
Supp. 162 , affirmed. Page 430 U. S. 788 POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and STEWART, BLACKMUN, REHNQUIST, and STEVENS, JJ., joined.
WHITE, J., filed a dissenting statement, post, p. 430 U. S. 816 .
MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J.,
joined, post, p. 430 U. S.
800 .

															MR. JUSTICE POWELL delivered the opinion of the Court.

															This case brings before us a constitutional challenge to §§
101(b)(1)(D) and 101(b)(2) of the Immigration and Nationality Act
of 1952 (Act), 66 Stat. 182, as amended, 8 U.S.C. §§ 1101 ()(1)(D)
and 1101(b)(2). I The Act grants special preference immigration status to aliens
who qualify as the "children" or "parents" of United States
citizens or lawful permanent residents. Under § 101(b)(1), a
"child" is defined as an unmarried person under 21 years of age who
is a legitimate or legitimated child, a stepchild, an adopted
child, or an illegitimate child seeking preference by virtue of his
relationship with his natural mother. [ Footnote 1 ] Page 430 U. S. 789 The definition does not extend to an illegitimate child seeking
preference by virtue of his relationship with his natural father.
Moreover, under § 101(b)(2), a person qualifies as a "parent" for
purposes of the Act solely on the basis of the person's
relationship with a "child." As a result, the natural father of an
illegitimate child who is either a United States citizen or
permanent resident alien is not entitled to preferential treatment
as a "parent."

															The special preference immigration status provided for those who
satisfy the statutory "parent-child" relationship depends on
whether the immigrant's relative is a United States citizen or
permanent resident alien. A United States citizen is allowed the
entry of his "parent" or "child" without regard to either an
applicable numerical quota or the labor certification requirement.
8 U.S.C. §§ 1151(a), (b), 1182(a)(14). On the other hand, a United
States permanent resident alien is allowed the entry of the
"parent" or "child" subject to numerical limitations but without
regard to the labor certification Page 430 U. S. 790 requirement. 8 U.S.C. § 1182(a)(14); see 1 C. Gordon
& H. Rosenfield, Immigration Law and Procedure § 2.40 n. 18
(rev. ed.1975). [ Footnote
2 ]

															Appellants are three sets of unwed natural fathers and their
illegitimate offspring who sought, either as an alien father or an
alien child, a special immigration preference by virtue of a
relationship to a citizen or resident alien child or parent. In
each instance, the applicant was informed that he was ineligible
for an immigrant visa unless he qualified for admission under the
general numerical limitations and, in the case of the alien
parents, received the requisite labor certification. [ Footnote 3 ] Page 430 U. S. 791 Appellants filed this action in July, 1974, in the United States
District Court for the Eastern District of New York challenging the
constitutionality of §§ 101(b)(1) and 101(b)(2) of the Act under
the First, Fifth, and Ninth Amendments. Appellants alleged that the
statutory provisions (i) denied them equal protection by
discriminating against natural fathers and their illegitimate
children "on the basis of the father's marital status, the
illegitimacy of the child and the sex of the parent without either
compelling or rational justification"; (ii) denied them due process
of law to the extent that there was established

															"an unwarranted conclusive presumption of the absence of strong
psychological and economic ties between natural fathers and their
children born out of wedlock and not legitimated;"

															and (iii)

															"seriously burden[ed] and infringe[d] upon the rights of natural
fathers and their children, born out of wedlock and not
legitimated, to mutual association, to privacy, to establish a
home, to raise natural children and to be raised by the natural
father."

															App. 11-12. Appellants sought to enjoin permanently enforcement
of the challenged statutory provisions to the extent that the
statute precluded them from qualifying for the special preference
accorded other "parents" and "children."

															A three-judge District Court was convened to consider the
constitutional issues. After noting that Congress' power to fashion
rules for the admission of aliens was "exceptionally broad," the
District Court held, with one judge dissenting, that the statutory
provisions at issue were neither "wholly devoid of any conceivable
rational purpose" nor "fundamentally aimed at achieving a goal
unrelated to the regulation of immigration." Fiallo v.
Levi, 406 F.
Supp. 162 , 165, 166 Page 430 U. S. 792 (1975). The court therefore granted judgment for the Government
and dismissed the action.

															We noted probable jurisdiction sub nom. Fiallo v. Levi, 426 U.S. 919 (1976), and, for the reasons set forth below, we
affirm. II At the outset, it is important to underscore the limited scope
of judicial inquiry into immigration legislation. This Court has
repeatedly emphasized that "over no conceivable subject is the
legislative power of Congress more complete than it is over" the
admission of aliens. Oceanic Navigation Co. v. Stranahan, 214 U. S. 320 , 214 U. S. 339 (1909); accord, Kleindienst v. Mandel, 408 U.
S. 753 , 408 U. S. 766 (1972). Our cases "have long recognized the power to expel or
exclude aliens as a fundamental sovereign attribute exercised by
the Government's political departments largely immune from judicial
control." Shaughnessy v. Mezei, 345 U.
S. 206 , 345 U. S. 210 (1953); see, e.g., Harisiades v. Shaughnessy, 342 U.
S. 580 (1952); Lem Moon Sing v. United States, 158 U. S. 538 (1895); Fon Yue Ting v. United States, 149 U.
S. 698 (1893); The Chinese Exclusion Case, 130 U. S. 581 (1889). Our recent decisions have not departed from this
long-established rule. Just last Term, for example, the Court had
occasion to note that "the power over aliens is of a political
character, and therefore subject only to narrow judicial review." Hampton v. Mow Sun Wong, 426 U. S. 88 , 426 U. S. 101 n. 21 (1976), citing Fong Yue Ting v. United States, supra at 149 U. S. 713 ; accord, Mathews v. Diaz, 426 U. S. 67 , 426 U. S. 81 -82
(1976). And we observed recently that, in the exercise of its broad
power over immigration and naturalization, "Congress regularly
makes rules that would be unacceptable if applied to citizens." Id. at 426 U. S. 80 .
[ Footnote 4 ] Page 430 U. S. 793 Appellants apparently do not challenge the need for special
judicial deference to congressional policy choices in the
immigration context, [ Footnote
5 ] but instead suggest that a "unique coalescing of factors"
makes the instant case sufficiently unlike prior immigration cases
to warrant more searching judicial scrutiny. Brief for Appellants
52-55. Appellants first observe that, since the statutory
provisions were designed to reunite families wherever possible, the
purpose of the statute was to afford rights not to aliens, but to
United States citizens and legal permanent residents. Appellants
then rely on our border search decisions in Almeida-Sanchez v.
United States, 413 U. S. 266 (1973), and United States v. Brignoni-Ponce, 422 U.
S. 873 (1975), for the proposition that the courts
must Page 430 U. S. 794 scrutinize congressional legislation in the immigration area to
protect against violations of the rights of citizens. At issue in
the border search cases, however, was the nature of the protections
mandated by the Fourth Amendment with respect to Government
procedures designed to stem the illegal entry of aliens. Nothing in
the opinions in those cases suggests that Congress has anything but
exceptionally broad power to determine which classes of aliens may
lawfully enter the country. See 413 U.S. at 413 U. S. 272 ;
422 U.S. at 422 U. S.
883 -884.

															Appellants suggest a second distinguishing factor. They argue
that none of the prior immigration cases of this Court involved
"double-barreled" discrimination based on sex and illegitimacy,
infringed upon the due process rights of citizens and legal
permanent residents, or implicated "the fundamental constitutional
interests of United States citizens and permanent residents in a
familial relationship." Brief for Appellants 554; see id. at 118. But this Court has resolved similar challenges to
immigration legislation based on other constitutional rights of
citizens, and has rejected the suggestion that more searching
judicial scrutiny is required. In Kleindienst v. Mandel,
supra, for example, United States citizens challenged the
power of the Attorney General to deny a visa to an alien who, as a
proponent of "the economic, international, and governmental
doctrine of World communism," was ineligible to receive a visa
under 8 U.S.C. § 1182(a)(28)(D) absent a waiver by the Attorney
General. The citizen-appellees in that case conceded that Congress
could prohibit entry of all aliens falling into the class defined
by § 1182(a)(28)(D). They contended, however, that the Attorney
General's statutory discretion to approve a waiver was limited by
the Constitution, and that their First Amendment rights were
abridged by the denial of Mandel's request for a visa. The Court
held that,

															"when the Executive exercises this [delegated] power negatively
on the basis of a facially legitimate and bona fide reason, the courts will neither look behind Page 430 U. S. 795 the exercise of that discretion, nor test it by balancing its
justification against the First Amendment interests of those who
seek personal communication with the applicant."

															408 U.S. at 408 U. S. 770 .
We can see no reason to review the broad congressional policy
choice at issue here under a more exacting standard than was
applied in Kleindienst v. Mandel, a First Amendment case.
[ Footnote 6 ] Page 430 U. S. 796 Finally, appellants characterize our prior immigration cases as
involving foreign policy matters and congressional choices to
exclude or expel groups of aliens that were "specifically and
clearly perceived to pose a grave threat to the national security,"
citing Harisiades v. Shaughnessy, 342 U.
S. 580 (1952), "or to the general welfare of this
country," citing Boutilier v. INS, 387 U.
S. 118 (1967). Brief for Appellants 54. We find no
indication in our prior cases that the scope of judicial review is
a function of the nature of the policy choice at issue. To the
contrary,

															"[s]ince decisions in these matters may implicate our relations
with foreign powers, and since a wide variety of classifications
must be defined in the light of changing political and economic
circumstances, such decisions are frequently of a character more
appropriate to either the Legislature or the Executive than to the
Judiciary,"

															and

															"[t]he reasons that preclude judicial review of political
questions also dictate a narrow standard of review of decisions
made by the Congress or the President in the area of immigration
and naturalization." Mathews v. Diaz, 426 U.S. at 426 U. S. 81 -82. See Harisiades v. Shaughnessy, supra, at 342 U. S.
588 -589. As Mr. Justice Frankfurter observed in his
concurrence in Harisiades v. Shaughnessy: "The conditions of entry for every alien, the particular classes
of aliens that shall be denied entry altogether, the basis for
determining such classification, the right to terminate hospitality
to aliens, the grounds on which such determination shall be based,
have been recognized as matters solely for the responsibility of
the Congress, and wholly outside the power of this Court to
control."

															342 U.S. at 342 U. S.
596 -597. Page 430 U. S. 797 III As originally enacted in 1952, § 101(b)(1) of the Act defined a
"child" as an unmarried legitimate or legitimated child or
stepchild under 21 years of age. The Board of Immigration Appeals
and the Attorney General subsequently concluded that the failure of
this definition to refer to illegitimate children rendered
ineligible for preferential nonquota status both the illegitimate
alien child of a citizen mother, Matter of A, 5 I. &
N.Dec. 272, 283-284 (A.G.1953), and the alien mother of a citizen
born out of wedlock, Matter of F, 7 I & N.Dec. 448
(B.I.A.1957). The Attorney General recommended that the matter be
brought to the attention of Congress, Matter of A, supra at 284, and the Act was amended in 1957 to include what is now 8
U.S.C. § 1101(b)(1)(D). See n 1, supra. Congress was specifically concerned
with the relationship between a child born out of wedlock and his
or her natural mother, and the legislative history of the 197
amendment reflects an intentional choice not to provide
preferential immigration status by virtue of the relationship
between an illegitimate child and his or her natural father.
[ Footnote 7 ]

															This distinction is just one of many drawn by Congress pursuant
to its determination to provide some -- but not all -- families
with relief from various immigration restrictions that would
otherwise hinder reunification of the family in this country. In
addition to the distinction at issue here, Congress Page 430 U. S. 798 has decided that children, whether legitimate or not, cannot
qualify for preferential status if they are married or are over 21
years of age. 8 U.S.C. § 1101(b)(1). Legitimated children are
ineligible for preferential status unless their legitimation
occurred prior to their 18th birthday and at a time when they were
in the legal custody of the legitimating parent or parents. §
1101(b)(1)(C). Adopted children are not entitled to preferential
status unless they were adopted before the age of 14 and have
thereafter lived in the custody of their adopting or adopted
parents for at least two years, § 1101(b)(1)(E). And stepchildren
cannot qualify unless they were under 18 at the time of the
marriage creating the stepchild relationship. § 1101(b)(1)(b).

															With respect to each of these legislative policy distinctions,
it could be argued that the line should have been drawn at a
different point and that the statutory definitions deny
preferential status to parents and children who share strong family
ties. Cf. Mathews v. Diaz, supra at 426 U. S. 83 -84.
But it is clear from our cases, see 430 U.
S. supra, that these are policy questions
entrusted exclusively to the political branches of our Government,
and we have no judicial authority to substitute our political
Judgment for that of the Congress.

															Appellants suggest that the distinction drawn in § 101(b)(1)(D)
is unconstitutional under any standard of review, since it
infringes upon the constitutional rights of citizens and legal
permanent residents without furthering legitimate governmental
interests. Appellants note in this regard that the statute makes it
more difficult for illegitimate children and their natural fathers
to be reunited in this country than for legitimate or legitimated
children and their parents, or for illegitimate children and their
natural mothers. And appellants also note that the statute fails to
establish a procedure under which illegitimate children and their
natural fathers could prove the existence and strength of their
family relationship. Those are admittedly the consequences of
the Page 430 U. S. 799 congressional decision not to accord preferential status to this
particular class of aliens, but the decision nonetheless remains
one "solely for the responsibility of the Congress, and wholly
outside the power of this Court to control." Harisiades v.
Shaughnessy, 342 U.S. at 342 U. S. 597 (Frankfurter, J., concurring). Congress obviously has determined
that preferential status is not warranted for illegitimate children
and their natural fathers, perhaps because of a perceived absence
in most cases of close family ties, as well as a concern with the
serious problems of proof that usually lurk in paternity
determinations. [ Footnote 8 ] See Trimble v. Gordon, ante at 430 U. S. 771 .
In any event, it is not the judicial role in cases of this sort to
probe and test the justifications for the legislative decision.
[ Footnote 9 ] Kleindienst v.
Mandel, 408 U.S. at 408 U. S.
770 . IV We hold that §§ 101(b)(1)(D) and 101(b)(2) of the Page 430 U. S. 800 Immigration and Nationality Act of 1952 are not unconstitutional
by virtue of the exclusion of the relationship between an
illegitimate child and his natural father from the preferences
accorded by the Act to the "child" or "parent" of a United States
citizen or lawful permanent resident. Affirmed. [ Footnote 1 ]

															Section 101(b)(1), as set forth in 8 U.S.C. § 1101(b),
provides:

															"(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 chapter."

															"(F) a child, under the age of fourteen at the time a petition
is filed in his behalf to accord a classification as an immediate
relative under section 1151(b) of this title [§ 201(b)], who is an
orphan because of the death or disappearance of, abandonment or
desertion by, or separation or loss from, both parents, or for whom
the sole or surviving parent is incapable of providing the proper
care which will be provided the child if admitted to the United
States and who has in writing irrevocably released the child for
emigration and adoption; who has been adopted abroad by a United
States citizen and his spouse who personally saw and observed the
child prior to or during the adoption proceedings; or who is coming
to the United States for adoption by a United States citizen and
spouse who have complied with the preadoption requirements, if any,
of the child's proposed residence: Provided, That no
natural parent or prior adoptive parent of any such child shall
thereafter, by virtue of such parentage, be accorded any right,
privilege, or status under this chapter."

															[ Footnote 2 ]

															Effective January 1, 1977, the parent-child relationship no
longer triggers an exemption from the labor certification
requirement. Immigration and Nationality Act Amendments of 1976, §
5, 90 Stat. 2705. The 1976 amendments contain a saving clause, § 9,
however, which provides that the amendments

															"shall not operate to affect the entitlement to immigrant status
or the order of consideration for issuance of an immigrant visa of
an alien entitled to a preference status, under section 203(a) of
the Immigration and Nationality Act, as in effect on the day before
the effective date of this Act, on the basis of a petition filed
with the Attorney General prior to such effective date."

															[ Footnote 3 ]

															Appellant Ramon Martin Fiallo, a United States citizen by birth,
currently resides in the Dominican Republic with his natural
father, appellant Ramon Fiallo-Sone, a citizen of that country. The
father initiated procedures to obtain an immigrant visa as the
"parent" of his illegitimate son, but the United States Consul for
the Dominican Republic informed appellant Fiallo-Sone that he could
not qualify for the preferential status accorded to "parents"
unless he legitimated Ramon Fiallo.

															Appellant Cleophus Warner, a naturalized United States citizen,
is the unwed father of appellant Serge Warner, who was born in 1960
in the French West Indies. In 1972, Cleophus Warner petitioned the
Immigration and Naturalization Service to classify Serge as
Warner's "child" for purposes of obtaining an immigrant visa, but
the petition was denied on the ground that there was no evidence
that Serge was Warner's legitimate or legitimated offspring.

															Appellants Trevor Wilson and Earl Wilson, permanent resident
aliens, are the illegitimate children of appellant Arthur Wilson, a
citizen of Jamaica. Following the death of their mother in 1974,
Trevor and Earl sought to obtain an immigrant visa for their
father. We are informed by the appellees that, although the
application has not yet been rejected, denial is certain, since the
children are neither legitimate nor legitimated offspring of Arthur
Wilson.

															[ Footnote 4 ]

															Writing for the Court in Galvan v. Press, 347 U.
S. 522 (1954), Mr. Justice Frankfurter noted that "much
could be said for the view" that due process places some
limitations on congressional power in the immigration area, "were
we writing on a clean slate."

															"But the slate is not clean. As to the extent of the power of
Congress under review, there is not merely 'a page of history' . .
. , but a whole volume. Policies pertaining to the entry of aliens
and their right to remain here are peculiarly concerned with the
political conduct of government. In the enforcement of these
policies, the Executive Branch of the Government must respect the
procedural safeguards of due process. . . . But that the
formulation of these policies is entrusted exclusively to Congress
has become about as firmly embedded in the legislative and judicial
tissues of our body politic as any aspect of our government. . .
."

															"We are not prepared to deem ourselves wiser or more sensitive
to human rights than our predecessors, especially those who have
been most zealous in protecting civil liberties under the
Constitution, and must therefore, under our constitutional system,
recognize congressional power in dealing with aliens. . . ." Id. at 347 U. S.
530 -532. We are no more inclined to reconsider this line
of cases today than we were five years ago when we decided Kleindienst v. Mandel, 408 U. S. 753 , 408 U. S. 767 (1972).

															[ Footnote 5 ]

															The appellees argue that the challenged sections of the Act,
embodying as they do "a substantive policy regulating the admission
of aliens into the United States, [are] not an appropriate subject
for judicial review." Brief for Appellees 15, 19-24. Our cases
reflect acceptance of a limited judicial responsibility under the
Constitution even with respect to the power of Congress to regulate
the admission and exclusion of aliens, and there is no occasion to
consider in this case whether there may be actions of the Congress
with respect to aliens that are so essentially political in
character as to be nonjusticiable.

															[ Footnote 6 ]

															The thoughtful dissenting opinion of our Brother MARSHALL would
be persuasive if its basic premise were accepted. The dissent is
grounded on the assumption that the relevant portions of the Act
grant a "fundamental right" to American citizens, a right "given
only to the citizen," and not to the putative immigrant. Post at 430 U. S. 806 , 430 U. S. 808 , 430 U. S. 816 .
The assumption is facially plausible, in that the families of
putative immigrants certainly have an interest in their admission.
But the fallacy of the assumption is rooted deeply in fundamental
principles of sovereignty.

															We are dealing here with an exercise of the Nation's sovereign
power to admit or exclude foreigners in accordance with perceived
national interests. Although few, if any, countries have been as
generous as the United States in extending the privilege to
immigrate, or in providing sanctuary to the oppressed, limits and
classifications as to who shall be admitted are traditional and
necessary elements of legislation in this area. It is true that the
legislative history of the provision at issue here establishes that
congressional concern was directed at "the problem of keeping
families of United States citizens and immigrants united." H.R.Rep.
No. 1199, 85th Cong., 1st Sess., 7 (1957). See also H.R.Rep. No. 1365, 82d Cong., 2d Sess., 29 (1952) (statute
implements "the underlying intention of our immigration laws
regarding the preservation of the family unit"). To accommodate
this goal, Congress has accorded a special "preference status" to
certain aliens who share relationships with citizens or permanent
resident aliens. But there are widely varying relationships and
degrees of kinship, and it is appropriate for Congress to consider
not only the nature of these relationships, but also problems of
identification, administration, and the potential for fraud. In the
inevitable process of "line drawing," Congress has determined that
certain classes of aliens are more likely than others to satisfy
national objectives without undue cost, and it has granted
preferential status only to those classes.

															As Mr. Justice Frankfurter wrote years ago, the formulation of
these "[p]olicies pertaining to the entry of aliens . . . is
entrusted exclusively to Congress." Galvan v. Press, 347
U.S. at 347 U. S. 531 .
This is not to say, as we make clear in n 5, supra, that the Government's power in this
area is never subject to judicial review. But our cases do make
clear that, despite the impact of these classifications on the
interests of those already within our borders, congressional
determinations such as this one are subject only to limited
judicial review.

															[ Footnote 7 ]

															S.Rep. No. 1057, 85th Cong., 1st Sess., 4 (1957) (the amendment
was designed "to clarify the law so that the illegitimate child
would, in relation to his mother, enjoy the same status
under the immigration laws as a legitimate child") (emphasis
added); H.R.Rep. No. 1199, 85th Cong., 1st Sess., 7 (1957) (the
amendment was designed "to alleviate hardship and provide for a
fair and humanitarian adjudication of immigration cases involving
children born out of wedlock and the mothers of such
children ") (emphasis added); 103 Cong.Rec. 14659 (1957)
(remarks of Sen. Kennedy) (the amendment "would clarify the law so
that an illegitimate child would, in relation to his
mother, enjoy the same status under immigration laws as a
legitimate child") (emphasis added).

															[ Footnote 8 ]

															The inherent difficulty of determining the paternity of an
illegitimate child is compounded when it depends upon events that
may have occurred in foreign countries many years earlier. Congress
may well have given substantial weight, in adopting the
classification here challenged, to these problems of proof and the
potential for fraudulent visa applications that would have resulted
from a more generous drawing of the line. Moreover, our cases
clearly indicate that legislative distinctions in the immigration
area need not be as " carefully tuned to alternative
considerations,'" Trimble v. Gordon, ante at 430 U. S. 772 (quoting Mathews v. Lucas, 427 U.
S. 495 , 427 U. S. 513 (1976)), as those in the domestic area. [ Footnote 9 ]

															Appellants insist that the statutory distinction is based on an
overbroad and outdated stereotype concerning the relationship of
unwed fathers and their illegitimate children, and that existing
administrative procedures, which had been developed to deal with
the problems of proving paternity, maternity, and legitimation with
respect to statutorily recognized "parents" and "children," could
easily handle the problems of proof involved in determining the
paternity of an illegitimate child. We simply note that this
argument should be addressed to the Congress, rather than the
courts. Indeed, in that regard, it is worth noting that a bill
introduced in the 94th Congress would have eliminated the
challenged distinction. H.R. 10993, 94th Cong., 1st Sess.
(1975).

															MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins,
dissenting.

															Until today, I thought it clear that, when Congress grants
benefits to some citizens, but not to others, it is our duty to
insure that the decision comports with Fifth Amendment principles
of due process and equal protection. Today, however, the Court
appears to hold that discrimination among citizens, however
invidious and irrational, must be tolerated if it occurs in the
context of the immigration laws. Since I cannot agree that Congress
has license to deny fundamental rights to citizens according to the
most disfavored criteria simply because the Immigration and
Nationality Act is involved, I dissent. I The Immigration and Nationality Act of 1952 (INA), 8 U.S.C. §
1101 et seq., establishes the terms and conditions for
entry into the United States. Among its various conditions, the Act
requires that an alien seeking to enter the United States as a
legal permanent resident must come within a restrictive numerical
quota and must satisfy certain labor certification requirements.
INA §§ 201, 202, 212(a)(14), 8 U.S.C. §§ 1151, 1152, 1182(a)(14)
(1976 ed.), as amended by the Immigration and Nationality Act
Amendments of 1976, 90 Stat. 2703 (hereinafter 1976 Amendments). In
recognition of the fact that such requirements frequently separate
families, Congress has provided that American citizens may
petition Page 430 U. S. 801 to have the requirements waived for their immediate families --
spouse, parents, children. INA §§ 201(a), (b), 212(a)(14), 8 U.S.C.
§§ 1151(a), (b), 1182(a)(14). [ Footnote
2/1 ] Page 430 U. S. 802 The privilege is accorded only to those parents and children who
satisfy the statute's definitions. Under INA § 101(b)(1), a "child"
is defined as an unmarried person under 21 years of age who is a
legitimate or legitimated child, a stepchild, an adopted child, or
an illegitimate child by whom or on whose behalf a privilege is
sought by virtue of the relationship of the child to its biological
mother. 8 U.S.C. § 1101(b)(1). [ Footnote 2/2 ] A "parent" is defined under INA §
101(b)(2) solely Page 430 U. S. 803 on the basis of the individual's relationship with a "child" as
defined by § 101(b)(1). 8 U.S.C. § 1101(b)(2). [ Footnote 2/3 ] The definitions cover virtually all
parent-child relationships except that of biological
father-illegitimate child. Thus, while all American citizens are
entitled to bring in their alien children without regard to either
the numerical quota or the labor certification requirement, fathers
are denied this privilege with respect to their illegitimate
children. Similarly, all citizens are allowed to have their parents
enter without regard to the labor certification requirement, and,
if the citizen is over 21, also without regard to the quota.
Illegitimate children, however, are denied such preferences for
their fathers.

															The unfortunate consequences of these omissions are graphically
illustrated by the case of appellant Cleophus Warner. [ Footnote 2/4 ] Page 430 U. S. 804 Mr. Warner is a naturalized citizen of the United States who,
pursuant to 8 U.S.C. § 1154, [ Footnote
2/5 ] petitioned the Attorney General for an immigrant visa for
his illegitimate son Serge, a citizen of the French West Indies.
Despite the fact that Mr. Warner acknowledged his paternity and
registered as Serge's father shortly after his birth, has his name
on Serge's birth certificate, and has supported and maintained
Serge since birth, the special dispensation from the quota and
labor certification requirements was denied because Serge was not a
"child" under the statute. It matters not that, as the Government
concedes, Tr. of Oral Arg. 226, Serge's mother has abandoned Serge
to his father and has, by marrying another man, apparently rendered
impossible, under French West Indies law, Mr. Warner's ever
legitimating Serge. Mr. Warner is simply not Serge's "parent." II The Government contends that this legislation is not subject to
judicial review. Pointing to the fact that aliens have no
constitutional right to immigrate to the United States and to a
long line of cases that recognize that policies pertaining to Page 430 U. S. 805 the entry of aliens and their right to remain here are
peculiarly concerned with the political conduct of government, the
Government concludes that "[t]he congressional decision whether or
to whom to extend such a valuable privilege . . . is not a subject
of judicial concern." Brief for Appellees 22.

															The Court rightly rejects this expansive claim and recognizes
that

															"[o]ur cases reflect acceptance of a limited judicial
responsibility . . . even with respect to the power of Congress to
regulate the admission and exclusion of aliens." Ante at 430 U. S. 793 n. 5. It points out, however, that the scrutiny is circumscribed.
Congress has "broad power to determine which classes of aliens may
lawfully enter the country" and its political judgments warrant
deference. Ante at 430 U. S.
794 -796.

															I wholeheartedly agree with the Court's rejection of the
Government's claim of unreviewable discretion. Indeed, as I
observed in Kleindienst v. Mandel, 408 U.
S. 753 , 408 U. S. 781 (1972) (dissenting opinion), the old immigration cases that reflect
an absolute "hands-off" approach by this Court "are not the
strongest precedents in the United States Reports." I am pleased to
see the Court reveal once again a "reluctance to rely on them
completely." Ibid. I also have no quarrel with the
principle that the essentially political judgments by Congress as
to which foreigners may enter and which may not deserve deference
from the judiciary.

															My disagreement with the Court arises from its application of
the principle in this case. The review the majority purports to
require turns out to be completely "toothless." Cf. Trimble v.
Gordon, ante at 430 U. S. 767 .
After observing the effects of the denial of preferential status to
appellants, the majority concludes: "[B]ut the decision nonetheless
remains one solely for the responsibility of the Congress and
wholly outside the power of this Court to control.'" Ante at 799. Such "review" reflects more than due deference; it is
abdication. [ Footnote 2/6 ] Page 430 U. S. 806 Assuming, arguendo, that such deference might be
appropriate in some situations -- a supposition I find difficult to
accept -- it is particularly inappropriate in this case.

															This case, unlike most immigration cases that come before the
Court, directly involves the rights of citizens, not aliens.
"[C]oncerned with the problem of keeping families of United States
citizens and immigrants united," H.R.Rep. No. 1199, 85th Cong., 1st
Sess., 7 (1957), Congress extended to American citizens the right
to choose to be reunited in the United States with their immediate
families. The focus was on citizens and their need for relief from
the hardships occasioned by the immigration laws. The right to seek
such relief was given only to the citizen, not the alien. 8 U.S.C.
§ 1154. [ Footnote 2/7 ] If the
citizen does not petition the Attorney General for the special
"immediate relative" status for his parent or child, the alien, Page 430 U. S. 807 despite his relationship, can receive no preference. 8 U.S.C. §
1153(d). It is irrelevant that aliens have no constitutional right
to immigrate and that Americans have no constitutional right to
compel the admission of their families. The essential fact here is
that Congress did choose to extend such privileges to American
citizens, but then denied them to a small class of citizens. When
Congress draws such lines among citizens, the Constitution requires
that the decision comport with Fifth Amendment principles of equal
protection and due process. The simple fact that the discrimination
is set in immigration legislation cannot insulate from scrutiny the
invidious abridgment of citizens' fundamental interests.

															The majority responds that, in Kleindienst v. Mandel,
supra, the Court recognized that First Amendment rights of
citizens were "implicated," but refused to engage in the close
scrutiny usually required in First Amendment cases. Therefore, it
argues, no more exacting standard is required here. In that case,
Mandel, a Belgian "revolutionary Marxist," could visit this country
only if the Attorney General waived the statutory prohibition of
visas to "[a]liens who advocate the economic, international, and
governmental doctrines of World communism." 8 U.S.C. §
1182(a)(28)(D). The Attorney General denied the waiver, and suit
was brought by Mandel and several citizens who claimed their First
Amendment right to hear Mandel in person was abridged by the
denial. Rejecting the Government's contention that it had
"unfettered discretion, and any reason or no reason [for denying a
waiver] may be given," the Court upheld the denial only after
finding that it was based on a "legitimate and bona fide" reason --
Mandel's abuses of visa privileges on a prior visit. 408 U.S. at 408 U. S. 769 .
At the same time, however, the Court chose not to scrutinize more
closely and accepted the reason without weighing against it the
claimed First Amendment interest. It feared becoming embroiled in
the "dangerous and undesirable" task of considering, Page 430 U. S. 808 every time an alien was denied a waiver, such factors as the
projected number of people wishing to speak with the alien and the
probity of his ideas. Id. at 408 U. S.
769 .

															Whatever the merits of the Court's fears in Mandel, cf.
id. at 408 U. S. 774 (MARSHALL, J., dissenting), the present case is clearly
distinguishable in two essential respects. First, in Mandel, Congress had not focused on citizens and their
need for relief. Rather, the governmental action was concerned with
keeping out "undesirables." The impact on the citizens' right to
hear was an incidental and unavoidable consequence of that
political judgment. The present case presents a qualitatively
different situation. Here, the purpose of the legislation is to
accord rights not to aliens, but to United States citizens. In so
doing, Congress deliberately chose, for reasons unrelated to
foreign policy concerns or threats to national security, to deny
those rights to a class of citizens traditionally subject to
discrimination. [ Footnote 2/8 ]
Second, in Mandel, unlike the present case, appellees
conceded the ability of Congress to enact legislation broadly
prohibiting the entry of all aliens with Mandel's beliefs.
[ Footnote 2/9 ] Their concern was
directed instead to the exercise of the discretion granted the
Attorney General to waive the prohibition. In the present case, by
contrast, we are asked to engage in the traditional task of
reviewing the validity Page 430 U. S. 809 of a general Act of Congress challenged as unconstitutional on
its face. Totally absent therefore is the specter of involving the
courts in second-guessing countless individual determinations by
the Attorney General as to the merits of a particular alien's
entrance. III A Once it is established that this discrimination among citizens
cannot escape traditional constitutional scrutiny simply because it
occurs in the context of immigration legislation, the result is
virtually foreordained. One can hardly imagine a more vulnerable
statute.

															The class of citizens denied the special privilege of
reunification in this country is defined on the basis of two
traditionally disfavored classifications -- gender and legitimacy.
Fathers cannot obtain preferred status for their illegitimate
children; mothers can. Conversely, every child except the
illegitimate -- legitimate, legitimated, step-, adopted -- can
obtain preferred status for his or her alien father. The Court has
little tolerance for either form of discrimination. We require that
gender-based classifications "serve important governmental
objectives, and . . . be substantially related to achievement of
those objectives." Califano v. Webster, ante at 430 U. S. 317 ; Califano v. Goldfarb, ante at 430 U. S.
210 -211; Craig v. Boren, 429 U.
S. 190 , 429 U. S. 197 (1976); see also Weinberger v. Wiesenfeld, 420 U.
S. 636 (1975); Stanton v Stanton, 421 U. S.
7 (1975); Taylor v. Louisiana, 419 U.
S. 522 (1975); Frontiero v. Richardson, 411 U. S. 677 (1973); Reed v. Reed, 404 U. S. 71 (1971). We are similarly hostile to legislation excluding
illegitimates from governmental beneficence, finding it "illogical
and unjust" to deprive a child "simply because its natural father
has not married its mother." Gomez v. Perez, 409 U.
S. 535 , 409 U. S. 538 (1973). See also Trimble v. Gordon, ante p. 430 U. S. 762 ; Jimenez v. Weinberger, 417 U. S. 628 (1974); Beaty v. Weinberger, 478 F.2d 300 (CA5 1973), summarily aff'd, 418 U.S. 901 (1974); Page 430 U. S. 810 New Jersey Welfare Rights Org. v. Cahill, 411 U.
S. 619 (1973); Weber v. Aetna Casualty & Surety
Co., 406 U. S. 164 (1972); Davis v. Richardson, 342 F. Supp. 58 (Conn.,
1972), summarily aff'd, 409 U.S. 1069 (1972); Griffin
v. Richardson, 346 F.
Supp. 1226 (Md.), summarily aff'd, 409 U.S. 1069
(1972); Glona v. American Guarantee & Liability Ins
Co., 391 U. S. 73 (1968); Levy v. Louisiana, 391 U. S.
68 (1968); cf. Mathews v. Lucas, 427 U.
S. 495 (1976). But see Labine v. Vincent, 401 U. S. 532 (1971).

															But it is not simply the invidious classifications that make the
statute so vulnerable to constitutional attack. In addition, the
statute interferes with the fundamental "freedom of personal choice
in matters of marriage and family life." Cleveland Board of
Education v. LaFleur, 414 U. S. 632 , 414 U. S.
639 -640 (1974); see also Roe v. Wade, 410 U. S. 113 , 410 U. S.
152 =153 (1973); Wisconsin v. Yoder, 406 U. S. 205 , 406 U. S.
231 -233 (1972); Stanley v. Illinois, 405 U. S. 645 , 405 U. S. 651 (1972); Ginsberg v. New York, 390 U.
S. 629 , 390 U. S. 639 (1968); Griswold v. Connecticut, 381 U.
S. 479 (1965); id. at 381 U. S.
495 -496 (Goldberg, J., concurring); id. at 381 U. S.
502 -503 (WHITE J., concurring); Poe v. Ullman, 367 U. S. 497 , 367 U. S.
542 -544, 367 U. S.
549 -553 (Harlan, J., dissenting). The right to live
together as a family belongs to both the child who seeks to bring
in his or her father and the father who seeks the entrance of his
child.

															"It is no less important for a child to be cared for by its . .
. parent when that parent is male, rather than female. And a
father, no less than a mother, has a constitutionally protected
right to the 'companionship, care, custody, and management' of 'the
children he has sired and raised . . .' Stanley v.
Illinois, 405 U. S. 645 , 405 U. S.
651 (1972)." Weinberger v. Wiesenfeld, supra at 420 U. S. 652 .
In view of the legislation's denial of this right to these classes,
it is clear that, whatever the verbal formula, the Government bears
a substantial burden to justify the statute. Page 430 U. S. 811 B There is no dispute that the purpose of these special preference
provisions is to reunify families separated by the immigration
laws. As Congress itself declared,

															"[t]he legislative history of the Immigration and Nationality
Act clearly indicates that the Congress intended [in these
provisions] to provide for a liberal treatment of children, and was
concerned with the problem of keeping families of United States
citizens and immigrants united."

															H.R.Rep. No. 1199, 85th Cong., 1st Sess., 7 (1957). It is also
clear that, when Congress extended the privilege to cover the
illegitimate child-mother relationship in 1957, it did so to
alleviate hardships it found in several cases denying preferential
status to illegitimate children and their mothers. Id. at
7-8. Accord, S.Rep. No. 1057, 86th Cong., 1st Sess., 4
(1957).

															The legislative history, however, gives no indication of why
these privileges were absolutely denied illegitimate children and
their fathers. [ Footnote 2/10 ]
The Government suggests that Congress may have believed that "such
persons are unlikely to have maintained a close personal
relationship with their offspring." Brief for Appellees 17. If so,
Congress' chosen shorthand for "closeness" is obviously
overinclusive. No one can dispute that there are legitimate,
legitimated, step-, and adoptive parent-child relationships and
mother-illegitimate child relationships that are not close, and yet
are accorded the preferential status. Indeed, the most dramatic
illustration of the overinclusiveness is the fact that, while Mr.
Warner can never be deemed a "parent" of Serge, nevertheless, if he
should marry, his wife could qualify as a step-parent, entitled to
obtain for Serge the preferential status that Mr. Warner cannot Page 430 U. S. 812 obtain. Andrade v. Esperdy, 270 F.
Supp. 516 (SDNY 1967); Nation v.
Esperdy, 239 F.
Supp. 531 (SDNY 1965). [ Footnote
2/11 ] Similarly, a man who, in an adulterous affair, fathers a
child outside his marriage cannot be the "parent" of that child,
but his wife may petition as step-parent. Matter of
Stultz, 15 I. & N.Dec. (1975).

															That the statute is underinclusive is also undisputed. Brief for
Appellees 17; Tr. of Oral Arg. 21. Indeed, the Government could not
dispute it in view of the close relationships exhibited in
appellants' cases, recognized in our previous cases, see, e.g.,
Trimble v. Gordon, ante p. 430 U. S. 762 ; Weber v. Aetna Casualty & Surety Co., supra at 406 U. S. 169 ; Stanley v. Illinois, supra, and established in numerous
studies. [ Footnote 2/12 ]

															The Government suggests that Congress may have decided to accept
the inaccurate classifications of this statute because they
considered a case-by-case assessment of closeness and Page 430 U. S. 813 paternity not worth the administrative costs. This attempted
justification is plainly inadequate. In Stanley v. Illinois,
supra, we expressed our low regard for the use of
"administrative convenience" as the rationale for interfering with
a father's right to care for his illegitimate child.

															"Procedure by presumption is always cheaper and easier than
individualized determination. But when, as here, the procedure
forecloses the determinative issues of competence and care, when it
explicitly disdains present realities in deference to past
formalities, it needlessly risks running roughshod over the
important interests of both parent and child. It therefore cannot
stand."

															405 U.S. at 405 U. S.
656 -657. See also Glona v. American Guarantee &
Liability Ins. Co., supra. This Court has been equally intolerant of the rationale when it
is used to deny rights to the illegitimate child. While we are
sensitive to " the lurking problems with respect to proof of
paternity,'" Trimble v Gordon, ante at 430 U. S. 771 ,
quoting Gomez v. Perez, 409 U. S. 535 , 409 U. S. 538 (1973), we are careful not to allow them to be "`made into an
impenetrable barrier that works to shield otherwise invidious
discrimination.'" Trimble, ante at 430 U. S. 771 .
We require, at a minimum, that the "`statute [be] carefully tuned
to alternative considerations,'" ante at 430 U. S. 772 ,
quoting Mathews v. Lucas, 427 U.S. at 427 U. S. 513 ,
and not exclude all illegitimates simply because some situations
involve difficulties of proof. Ibid. Given such hostility to the administrative convenience argument
when invidious classifications and fundamental rights are involved,
it is apparent that the rationale is inadequate in the present
case. As I observed earlier, since Congress gave no indication that
administrative costs were its concern, we should scrutinize the
hypothesis closely. The likelihood of such a rationale is
diminished considerably by the comprehensive and elaborate
administrative procedures Page 430 U. S. 814 already established and employed by the INS in passing on claims
of the existence of a parent-child relationship. All petitions are
handled on a case-by-case basis, with the petitioner bearing the
burden of proof. Moreover, the INS is no stranger to cases
requiring proof of paternity. When, for example, a citizen
stepmother petitions for the entrance of her husband's illegitimate
child, she must necessarily prove that her husband is the child's
father. [ Footnote 2/13 ] Indeed,
it is ironic that, if Mr. Warner marries and his wife petitions for
Serge, her proof will, in fact, be one step more complex than his
would be -- not only must she prove his paternity, but she must
also prove their marriage. Nevertheless, she would be entitled to
an opportunity to prove those facts; he is not.

															Nor is a fear of involvement with foreign laws and records a
persuasive explanation of the omission. In administering the Act
with respect to legitimated children, for example, the critical
issue is whether the steps undertaken are adequate under local law
to render the child legitimate, and the INS has become expert in
such matters. [ Footnote 2/14 ] I
note, in this connection, Page 430 U. S. 815 that, where a child was born in a country in which all children
are legitimate, [ Footnote 2/15 ]
proof of paternity is the critical issue, and the proof problems
are identical to those involved with an illegitimate child.

															Given the existence of these procedures and expertise, it is
difficult indeed to give much weight to the hypothesized
administrative convenience rationale. Moreover, as noted
previously, this Court will not allow concerns with proof to
justify "an impenetrable barrier that works to shield otherwise
invidious discrimination." Gomez, supra at 409 U. S. 538 .
As the facts of this case conclusively demonstrate, Congress has
"failed to consider the possibility of a middle ground between the
extremes of complete exclusion and case-by-case determination of
paternity." Trimble, ante at 430 U. S.
770 -771. Mr. Warner is a classic example of someone who
can readily prove both paternity and closeness. Appellees concede
this. Tr. of Oral Arg. 21-22. The fact that he is denied the
opportunity demonstrates beyond peradventure that Congress has
failed to " carefully tun[e] [the statute] to alternative
considerations.'" Trimble, ante at 430 U. S. 772 ,
quoting Mathews v. Lucas, 427 U.S. at 427 U. S. 513 .
That failure is fatal to the statute. Trimble, ante at 430 U. S.
772 -773. [ Footnote
2/16 ] Page 430 U. S. 816 IV When Congress grants a fundamental right to all but an
invidiously selected class of citizens, and it is abundantly clear
that such discrimination would be intolerable in any context but
immigration, it is our duty to strike the legislation down. Because
the Court condones the invidious discrimination in this case simply
because it is embedded in the immigration laws, I must dissent.

															MR JUSTICE WHITE also dissents, substantially for the reasons
stated by MR. JUSTICE MARSHALL in his dissenting opinion.

															[ Footnote 2/1 ]

															Title 8 U.S.C. §§ 1151(a) and (b) provide:

															"§ 1151. Numerical limitations on total lawful admissions."

															"(a) Quarterly and yearly limitations."

															"Exclusive of special immigrants defined in section 1101(a)(27)
of this title, and of the immediate relatives of United States
citizens specified in subsection (b) of this section, the number of
aliens who may be issued immigrant visas or who may otherwise
acquire the status of an alien lawfully admitted to the United
States for permanent residence, or who may, pursuant to section
1153(a)(7) of this title enter conditionally, (i) shall not in any
of the first three quarters of any fiscal year exceed a total of
45,000 and (ii) shall not in any fiscal year exceed a total of
170,000."

															"(b) Immediate relatives defined."

															" The 'immediate relatives' referred to in subsection (a) of
this section shall mean the children, spouses, and parents of a
citizen of the United States: Provided, That in the case of
parents, such citizen must be at least twenty-one years of age. The
immediate relatives specified in this subsection who are otherwise
qualified for admission as immigrants shall be admitted as such,
without regard to the numerical limitations in this chapter."

															(Emphasis added.) The changes made by the 1976 Amendments were
not material to this case.

															Title 8 U.S.C. § 1182(a)(14) provides:

															"§ 1182. Excludable aliens."

															"(a) General classes."

															"Except as otherwise provided in this chapter, the following
class of aliens shall be ineligible to receive visas and shall be
excluded from admission into the United States:"

															" * * * *" "(14) Aliens seeking to enter the United States for the purpose
of performing skilled or unskilled labor, unless the Secretary of
Labor has determined and certified to the Secretary of State and to
the Attorney General that (A) there are not sufficient workers in
the United States who are able, willing, qualified, and available
at the time of application for a visa and admission to the United
States and at the place to which the alien is destined to perform
such skilled or unskilled labor, and (b) the employment of such
aliens will not adversely affect the wages and working conditions
of the workers in the United States similarly employed. The
exclusion of aliens under this paragraph shall apply to special
immigrants defined in section 1101(a)(27)(A) of this title
( other than the parents, spouses, or children of United States
citizens or of aliens lawfully admitted to the United States for
permanent residence ), to preference immigrant aliens described
in sections 1153(a)(3) and 1153(a)(6) of this title, and to
nonpreference immigrant aliens described in section 1153(a)(8) of
this title."

															(Emphasis added.) For the significance of the 1976 Amendments on
this section, see 430
U.S. 787 fn2/4|>n. 4, infra. [ Footnote 2/2 ]

															Title 8 U.S.C. § 1101(b)(1) provides:

															"(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 chapter."

															"(F) a child, under the age of fourteen at the time a petition
is filed in his behalf to accord a classification as an immediate
relative under section 1151(b) of this title, who is an orphan
because of the death or disappearance of, abandonment or desertion
by, or separation or loss from, both parents, or for whom the sole
or surviving parent is incapable of providing the proper care which
will be provided the child if admitted to the United States and who
has in writing irrevocably released the child for emigration and
adoption; who has been adopted abroad by a United States citizen
and his spouse who personally saw and observed the child prior to
or during the adoption proceedings; or who is coming to the United
States for adoption by a United States citizen and spouse who have
complied with the preadoption requirements, if any, of the child's
proposed residence: Provided, That no natural parent or
prior adoptive parent of any such child shall thereafter, by virtue
of such parentage, be accorded any right, privilege, or status
under this chapter."

															[ Footnote 2/3 ]

															Title 8 U.S.C. § 1101(b)(2) provides:

															"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 subdivision (1) of this
subsection."

															[ Footnote 2/4 ]

															Instituting this suit with Warner were Ramon Fiallo, and Trevor
and Earl Wilson. Both Fiallo, a five-year-old American citizen, and
the Wilsons, teen-aged permanent resident aliens, sought the waiver
of the labor certification requirements for their respective
fathers. Although the 1976 Amendments removed the exemptions from
the labor certification requirement for the parent-child
relationship, nevertheless, their cases are not moot. There is a
saving clause providing:

															"The amendments made by this Act shall not operate to affect the
entitlement to immigrant status or the order of consideration for
issuance of an immigrant visa of an alien entitled to a preference
status, under section 203(a) of the Immigration and Nationality
Act, as in effect on the day before the effective date of this Act,
on the basis of a petition filed with the Attorney General prior to
such effective date."

															1976 Amendments § 9. Since these situations cannot recur,
however, I will focus on Mr. Warner, whose plight, unfortunately,
can be repeated.

															[ Footnote 2/5 ]

															The citizen seeking "immediate relative" status for his or her
spouse, parent, or child must file a so-called Form I-130 petition
with the Attorney General. See text accompanying 430
U.S. 787 fn2/7|>n. 7, infra for a description of the
procedure.

															[ Footnote 2/6 ]

															The majority does not even engage in the modest degree of
scrutiny required by Kleindienst v. Mandel, 408 U.
S. 753 (1972). See discussion infra at 430 U. S.
807 -808. That failure, I submit, is due to the fact that
the statute could not even pass that standard of review. See 430 U. S. infra. [ Footnote 2/7 ]

															Under 8 U.S.C. § 1154(a),

															"[a]ny citizen of the United States claiming that an alien is
entitled to . . . an immediate relative status under section
1151(b) of this title . . . may file a petition with the
Attorney General for such classification."

															(Emphasis added.) Title 8 U.S.C. § 1154(b) prescribes the
procedure after a petition is filed:

															"(b) Investigation; consultation; approval; authorization to
grant preference status"

															"After an investigation of the facts in each case, and after
consultation with the Secretary of Labor with respect to petitions
to accord a status under section 1153(a)(3) or 1153(a)(6) of this
title, the Attorney General shall, if he determines that the facts
stated in the petition are true and that the alien in behalf of
whom the petition is made is an immediate relative specified in
section 1151(b) of this title, or is eligible for a preference
status under section 1153(a) of this title, approve the petition
and forward one copy thereof to the Department of State. The
Secretary of State shall then authorize the consular officer
concerned to grant the preference status."

															Title 8 U.S.C. § 1153(d) precludes a consular officer from
granting preferential status as an "immediate relative" "until he
has been authorized to do so as provided by section 1154."

															[ Footnote 2/8 ]

															Indeed, the majority concedes, ante at 430 U. S. 795 n. 6, that, if it is true that Congress has granted a right to
citizens and not to aliens, my position is "persuasive." It then
attempts to show that the premise is inaccurate. The effort,
however, is doomed. There is no way to avoid the facts that, as the
majority agrees, Congress was concerned with the problem of
separating United States citizens from their families, and that, as
the majority ignores, it specifically gave to citizens the right to
seek special dispensation from the immigration restrictions for
their immediate families. See discussion supra at 430 U. S.
806 -807.

															[ Footnote 2/9 ]

															The Court noted:

															"[Appellees] concede that Congress could enact a blanket
prohibition against entry of all aliens falling into the class
defined by §§ 212(a)(28)(D) and (G)(v), and that First Amendment
rights could not override that decision."

															408 U.S. at 408 U. S. 767 . But see id. at 408 U. S. 779 n. 4 (MARSHALL, J., dissenting).

															[ Footnote 2/10 ]

															This absence should alert us to the danger, ever-present in
legislation denying rights along gender and legitimacy lines, that
it was very likely "habit, rather than analysis or actual
reflection," Califano v. Goldfarb, ante at 430 U. S. 222 (STEVENS, J., concurring), that led Congress to assume that only
mothers are close to their illegitimate children.

															[ Footnote 2/11 ]

															The Immigration and Naturalization Service (INS) seeks to add a
gloss in such cases requiring, in addition to the marriage between
the petitioner and the father of the illegitimate, some indicia of
a "close family unit." Matter of Harris, 15 I. &
N.Dec. ___ (1970). The phrase has not been defined, but we know
that it includes a situation where the father, stepmother, and
child have lived together at some time, Matter of The, 11
I. & N.Dec. 449 (1965), and excludes the case where neither
father nor stepmother ever lived with or cared for the child. Matter of Harris, supra; Matter of Amado and Monteiro, 13
I. & N.Dec. 179 (1969); Matter of Soares, 12 I. &
N.Dec. 653 (1968); Matter of Morris, 11 I. & N.Dec.
537 (1966). The only court to review this interpretation has
rejected the added gloss. The fact of the marriage is sufficient to
categorize the wife a "stepmother." Andrade v.
Esperdy, 270 F.
Supp. 516 (SDNY 1967).

															[ Footnote 2/12 ]

															Chaskel, Changing Patterns of Services for Unmarried Parents, 49
Social Casework 3 (1968); Chaskel, The Unmarried Mother: Is She
Different? 46 Child Welfare 65, 72 (1967); Herzog, Some Notes About
Unmarried Fathers, 45 Child Welfare 194 (April 1966); Knight,
Conferences for Pregnant Unwed Teen-Agers, 65 American Journal of
Nursing 123, 126 (1965); Sauber, The Role of the Unmarried Father,
4 Welfare in Review 15, 16 (Nov.1966); Wessel, A Physician Looks at
Services for Unmarried Parents, 49 Social Casework 11 (1968).

															[ Footnote 2/13 ]

															The easiest proof is a birth certificate that names the father.
Review of Immigration Problems: Hearings on H.R. 10993 before the
Subcommittee on Immigration, Citizenship, and International Law of
the House Committee on the Judiciary, 94th Cong., 1st and 2d Sess.,
150-151, 154 (1975-1976). Alternatively, the INS obtains affidavits
from the natural mother or other people familiar with the
relationship, looks at school documents which may name the father,
and considers facts of custody or support. Ibid. The INS
also relies on local judicial determinations if they exist, but it
does not require them, because

															"alternative administrative recognition procedures . . .
normally available to the natural father . . . are less cumbersome
and time-consuming, and are regarded by consular officers as
equally reliable with court determinations in eliminating
fraudulent claims to the paternal relationship." Id. at 151.

															[ Footnote 2/14 ]

															The variations are many. In some countries, legitimation may be
accomplished only by marriage of the natural parents, Matter of
Blancapor, 14 I. & N.Dec. 427 (1973) (Philippines); Matter of F, 7 I. & N.Dec. 448 (1957) (Portugal); Matter of W, 9 I. & N.Dec. 223 (1961) (Surinam); Matter of J, 9 I. & N.Dec. 246 (1961) (British
Guiana); Matter of C, 9 I. & N.Dec. 597 (1962)
(Spain); by court decree, Matter of J and Y, 3 I. &
N.Dec. 657 (1949); Matter of Duncan, 15 I. & N.Dec.
___ (I.D. 2373, 1975) (Liberia); or by formal recognition, Matter of K, 8 I. & N.Dec. 73 (1958) (Poland); Matter of Jancar, 11 I. & N.Dec. 365 (1965)
(Yugoslavia); Matter of G, 9 I. & N.Dec. 518 (1961)
(Hungary); Matter of Peters, 11 I. & N.Dec. 691 (1966)
(Virginia Islands); Matter of Sinclair, 13 I. & N.Dec.
613 (1970) (Panama); Matter of Kubicka, 14 I. & N.Dec.
303 (1972) (Poland); Matter of Coker, 14 I. & N.Dec.
521 (1974) (Nigeria); Matter of Kim, 14 I. & N.Dec.
561 (1974) (Korea). In some countries, a child born out of wedlock
is deemed the legitimate child of both parents, Matter of G,
supra; cf. Matter of Lo, 14 I. & N.Dec. 379 (1973)
(People's Republic of China).

															[ Footnote 2/15 ] See, e.g., Matter of G, supra; Matter of Lo, supra. [ Footnote 2/16 ]

															Since resident aliens are also not to be arbitrarily denied
privilege on the basis of gender and legitimacy, Hampton v.
Mow Sun Wong , 426 U. S. 88 (1976); Sugarman v. Dougall, 413 U.
S. 634 (1973); Graham v. Richardson, 403 U. S. 365 (1971), it is clear that appellants Earl and Trevor Wilson, if they
meet the terms of the saving clause of the 1976 Amendments, should
also be entitled to relief. See 430
U.S. 787 fn2/5|>n. 5, supra.

Summary: The Supreme Court upheld the constitutionality of immigration laws that gave preferential treatment to legitimate children and their mothers, but not to illegitimate children and their fathers. The Court recognized the government's power to control immigration and the distinction made by Congress between different family relationships. The Court deferred to Congress' policy decision to draw the line at providing preferential treatment to legitimate children and their mothers, while excluding illegitimate children and their fathers from this status.