Unfaithful wife wants husband to petition adulterine child

“‘Adulterine children’ are the issue of adulterous intercourse and are regarded more unfavorably than illegitimate offspring of single persons.”  Matter of Young, 12 I&N Dec. 340 (BIA 1967).

A young Filipina married a man in his late 80’s, a U.S. citizen. Although they had a significant age difference, it did not amount to the 60 year difference between the 84 year old Hugh Hefner and his 24-year old future bride. The Filipina went home to the Philippines, fooled around, and gave birth to an adulterine child. She returned to the U.S. leaving the child in the Philippines. She knew that if she petitioned the child herself, being only a lawful permanent resident, it would take about 5 years before the child got a visa. To bring the child to the U.S. faster, she thought of having her cuckolded husband petition the child as his own.

Her husband did not know about her infidelity, but said that her husband would not mind since he was in a nursing home and could no longer perform his marital duties and had “permitted” her to have a child with another man. The person she talked with showed skepticism that a man would willingly be a pendejo consentido. He remarked that he must not be an Ilocano. “He is an Americano,” she replied.

If the Filipina had consulted with a competent lawyer before returning to the U.S., he would have told her that she could have brought the child with her. The U.S. will waive the visa requirement for a child born during a visit abroad of a mother who is a lawful permanent resident upon her first return to the U.S. after the birth of the child. 8 CFR §211.1(b)(1).

IS ADULTERINE CHILD A STEPCHILD?

Assuming the husband forgave his wife, can he petition her adulterine child?  Immigration and Nationality Act (INA) § 201(b)(2)(A)(i) provides that “children” of U.S. citizens are immediate relatives who can be petitioned by such citizens.

INA §101(b)(1) defines the term “child” as an unmarried person under twenty one years of age who is:

(A) a child born in wedlock;
(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.”

Can an adulterine child be classified as a stepchild? The statute is clear that the illegitimate child of one spouse becomes the stepchild of the other spouse when the child is conceived prior to the marriage. But does the illegitimate child of one spouse become the stepchild of the other spouse when the child is conceived and born during the existence of the marriage?

The former INS contended that the statute contemplated children born prior to the existing marriage who become the stepchildren of the new spouse upon marriage, not illegitimate children who were not yet born at the time of the marriage. However, the Board of Immigration Appeals and the Attorney General ruled that adulterine children are stepchildren, saying it was the “intent of Congress” to include them. Matter of Stultz, 15 I&N Dec. 362.

COMMENT: If that was what Congress intended, why did it not say so?  On the contrary, what Congress intended is expressed in the statute – it is the marriage that creates the relationship of stepchild. Thus, existing children become stepchildren by the marriage of their parent to another. How can a nonexistent child at the time of the marriage become a stepchild?


(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: www.ImmigrationServicesUSA.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most funny, interesting, and useful radio program in Hawaii on KNDI at 1270, AM dial every Thursday at 7:30 a.m., rebroadcast at  www.iluko.com. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication.)