Interim Decision #1453
MATTER or PALACIO
Li Visa Petition Proceedings
A-14242599
Decided lty Board April 7,1965
Since beneficiary, an illegitimate child at birth in the Philippines on nine 27,
1844, was over 18 years of age at the time the judgment of legitimation was
granted on September 15, 1964, by the Superior Court of the State of California, he is not a "child" within the definition of section 101(b) (1) (0),
Immigration and Nationality Act, as amended, and, therefore, not, entitled to
nonemots status. (Note: See Also. Matter of Palacio, int. Dee_ No. 1410, of
which the alien in this case is also the subject.)
The case comes forward- on appeal from the order of the District
Director, San Francisco District, dated October 27, 1964,' denying
the visa petition for the following reasons: evidence submitted in
support of the petition reflects that the beneficiary was born June
27, 1944; he was an illegitimate child at birth in that the petitioner
was never married to his mother; he was legitimated by Judgment
of Legitimation granted by the Superior Court of the State of California on September 16, 1964; he is therefore, not a "child" as
defined by section 101(b) (1) (C) of the Immigration and Nationality Act in that he was over the age of 18 years at the time of
legitimation.
The petitioner, a native of the Philippines and a citizen of the
United States by naturalization on October 9, 1946, at Manila, Philippines, 60 years old, male, seeks nonquota status on behalf of As
unmarried child, born June 27, 1944, a native and citizen of the
Philippines.. The certificate of baptism relating to the beneficiary
shows that he is the child of the petitioner and Nena de Silva. Supporting documents establish that the petitioner's prior marriage to
one Librada Palacio was terminated by a decree of the Superior
Court of the State of California for the City and County of San
Francisco on April 26, 1963. He married his present wife, Maria
Dalisay Angeles on May 6, 1902. There his also been submitted
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Interim Decision #1453
a copy of a decree of the Superior Court of the State of California,
City and.' County of San Francisco, entitled "In the Matter of the
Petition of Fred It. Palacio To Be Declared Legitimate Father of
Amor Palacio" and five other children entered on September 15,
1964, declaring that the petitioner is the legitimate father from birth
of the beneficiary and the children included in the Judgment, that
the said minor children are -legitimate children of the petitioner
and that a valid and subsisting relationship of parent and child
exists between petitioner and the said minor children.
In connection with the appeal the petitioisir has submitted money
order receipts to the beneficiary dating back to December 14, 1961;
and submitted an affidavit of the uncle and aunt of the petitioner's
former wife, Librada Echaniz Pale.cio, to the effect that the couple
had sepaiated since the year 1939, that they obtained a legal separation in 1944 from the Mayor of Kuyapo, Philippines, that petitioner
has made many trips to locate his wife but to no avail, and that their
niece has been Atissing since the year 1945. In addition, counsel
has submitted some of the moving papers which culminated. in the
Judgment of Legitimation by the Superior Court of the State of
California; City and County of San Francisco on September" 15,
1964. These papere are entitled "In the Matter of the Petition of
Fred R. Palacio Tci Be Declared Legitimate Father of Amor Paled*" et al., or "Petition of Father To Be Declared Legitimate Father
of Minor Children," and consist of the consent of the present wife
to petition of father to be declared legitimate father of minor children dated. July 10, 1964; the petition of the father to be declared
legitimate father of minor children in which he recites that the
natural mother of the children is Nena de Silva residing in Caloocan
City, Manlier Philippines, that the petitioner has publicly acknowledged. his children, that his name was placed on their-birth certificates as their father at his request and with his consent, that he has
lived with them in the Philippines until November 1957 when he
came to the United States, that he has not seen his fait wife,
Librada, since 1939 and that in September 1944 he signed a legal
separation but he did not see her and believes her to be deceased,
that on April 26, 1963, petitioner secured a divorce from the said
Librada on the ground of desertion and on May 6, 1963, he married
his present wife who has consented to the petition of her husband to
be declared the legitimate father of the children, that he has always
supported the children and is able to provide for and support them,
and wishes to males them heirs of his estate. Another court document indicates that the natural mother of the children, Nena de
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Interim Decision #1453
Silva, consented to the petition of the father to be declared the
o legitimate father of the children therein named.
Section 101(b) (1) (C) of the Immigration. and Nationality Act includes in the definition of the term "child" 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 18 years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation.i Section 230
of the California Civil Code entitled "Adoption of an Illegitimate
Child" has been construed us an out and out statute of legitimation.'
This section .provides that the father of an illegitimate child, by
publicly acknowledging it as his son, receiving it as such with the
consent of his wife, if he is married, into his family, and otherwise
treating it as if it were a legitimate child, thereby adopts it as
such; and such child is thereupon deemed for all purposes legitimate
from the time of his birth. Section 230 specifically exempts that
section from the provisions of foregoing sections relating to formal
or judicial adoptions.
The Judgment of the Superior Court of the State of California,
City and County of San Francisco, which has been submitted in support of the visa petition does not indicate under what section of .the
California law it is based. However, the Judgment is entitled "In
the Matter of the Petition of Fred R. Palacio To Be Declared Legitimate Father of Amor Palacio" et al. The action appears to be one
for declaration of parental relationship pursuant to 'section 231 of
the California Civil Code which provides: "An action may be
brought for the purpose of having declared the existence or nonexistence between the parties of the relationship, of parent and child,
by birth or adoption." Or, possibly, it may be an action under section 255 of the Probate Code of California which has been held to be
not a legitimation statute but amply a statute of succession.' Sectibn 231 of the California Ci4i1 Code is a paternity or filiation sta-
2 It does not appear that the beneficiary was legitimated under Philippine
law. Section 269 of the Civil Code of the Philippines provided that only natural children can be legitimated. Children born outside of wedlock of parents
who, at the time of the conception- of the former, were not disqualified by an
impediment to marry each other, are natural. In the instant ease, when the
beneficiary was born in 1944. to the petitioner and his blood mother, there
was in existence a prior undissolved marriage of the petitioner and his first
wife.
'Balk/dine v. De Silva, 226 P.2d 623, 632 (9th Cit., 1955) affirmed,
351 U.S.
570, rehearing denied, 852 V.S. 859,
302 U.S. 907.
•Banantine v. De Silva,:
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Interim Decision #1453
tute. On the other hand, section 230 is a legitimation statute by a
course of conduct which satisfies the requirements of the statute.
We have previously held that acknowledgment by the natural
father (domiciled in California) of a child bore out of wedlock in
a foreign country and 'residing in that country, without bringing the
child. into his family is insufficient to effect legitimation. under section 230 of the California Civil Code. 4 In the case of Louie Wale.
You v. Nagle, 27 F.2d 573 (9th Cir., 1928), although the evidence
established public acknowledgment by the father, it was insufficient
to prove that the father received the illegitimate child. into his home
or settled place of cohabitation of which he was the head. The
domicile of the father was in the State of California and not in
China, because, if his home and settled place of habitation was in
China, his domicile would likewise be there and the statutes of
California could have no application. and there could be no legitimation. - -
In the instant case, the beneficiary has always resided in the Philippines whereas the father appears to have resided in California
since 1957. Although the evidence establishes public acknowledgment, there is no evidence that the petitioner received the
beneficiary in his home in the State of California, which we have
held to be 8, requirement of the statute. The Judgment of the Superior Court of the State of California County and City of San
Francisco, does not appear to be a Judg;ent pursuant to section 230
of the California Civil Code: That Judgment of Legitimation was
entered after the beneficiary had reached his 18th birthday, and
thus fills to-meet the requirement of section 101(b) (1) (C)' of the
Immigration and Nationality Act. In the event that the petitioner
can produce evidence or a judgment by a California court showing
that the petitioner has been legitimated. pursuant to section 230 of the
California Civil Code together with the date of such legitimation,
the proceedings may be reopened. Upon the present record the appeal will be dismissed without prejudice to a reopening if the petitioner can establish legitimation. of the beneficiary prior to his 18th
birthday.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed. ••. .
`Matter of Wong, Int. Dec. No. 1287; Matter of Tinsley, Int. Dec. No. 1323.
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