JANCAR

                                                   Interim Decision #1519




                             MATTER or JANCAR

                         In Visa Petition Proceedings
                                 A-13512978

                  Decided by Board November 2, 1985
Since under the law of Yugoslavia an illegitimate child may be legitimated
  by acknowledgment of the natural fatten a child born out of wedlock in
  1944 in Yugoslavia, whose birth certificate establishes such acknowledgment
  In 1944 and reflects confirmation by her mother of the statement of acknowledgment, is, -in relation to her natural father, a' child within the meaning
  of either section 101(b) (1) (A) or (0) of the Inimisration and Nationality
  Act, as amended,,and is, therefore, eligibletfor preference quota status under
  section 208(a) (3) of the Act.


   The case comes dorward on appeal from the order of the District
Director, Cleveland, Ohio, dated May18, 1965, denying the visa petition for the reason that an illegitimate child derives no status,
privilege or benefit under the Immigration and Nationality Act
from or through the relationship of the child to its putative father.
  The petitioner, a native and citizen of Yugoslavia, a- permanent
resident alien since December 28, 1950, 52 years old, male, seeks preference quota status under section 203(a) (3) of the Immigration and
Nationality Act on behalf of his unmarried illegitimate daughter, a
native and citizen of Yugoslavia, 21 years old. In support of the
visa petition there has been submitted a Yugoslavian birth certificate
showing the beneficiary's mother as Matilda Jancar and bearing a
notation that the petitioner on. July 14, 1944 signed a statement at
the local Youth Center in the district of Radgona that he is the
child's father and that the child's mother confirmed the statement.
In connection with the appeal the petitioner states at the time of his
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daughter's birth, he was threatened with:mobilization into the German Army and was in hiding. In 1945, fearing Communist persecution he fled the country never to return again, thus preventing him
from marrying his daughter's mother. He States that he brought
the beneficiary here as soon as he was comfortably settled and had
his own home; that the beneficiary is his only heir and he has willed
all his estate to her.
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   On the date of October 1, 1965 the District Director, Cleveland
District, after reference to material furnished by the Library of
Congress dated September 8, 1965 has concluded that no change
should be made in his original decision. Ile 'concludes "a status sim,
      to that, of a child born in wedlock" would not appear, to meet ilar
the demands of "definitions",with reference to the requirements of
section 101(b) (1) (A) nor have the requirements of section 101(b)
 (1) (C) with reference to custody been met as the subject was not in
custody of the legitimating parent until after her eighteenth birthday since the beneficiary's only entry into the United States on December 10, 1904 was effected when she was 20 yea= of age. The
issue, then is whether the act of acknowledgment of paternity by the
father legitimated the beneficiary under Yugoslavian Law.
   The file contains a report dated September .3, 1965, entitled
"Acknowledgment and Legitimation of a child -born out- of wedlock
under Yugoslav Law," prepared by a Doctor Fran Gjupanovich, of
the European Law Division of the Library of Congress. We shall
deal with the pertinent portions of this report.       -   %
   The new socialist system introduced - in Yugoslavia by the 1946
 Constitution paid special attention to childien born out of wedlock.
 Under the Constitution of 1946, Article 26, as well as under.that of
 1963 Article 58, now in force, children born out of wedlock are considered equal to those born in wedlock with respect to tkeir rights
 and duties toward their parents and the fights and duties of the
 parents toward them. The term "legitimate" and "illegitimate" are
 no longer used in domestic relations legislation. In order for a
 child born out of wedlock to realize its rights, its-extramarital paternity must be established. This may be effected. either through a
 voluntary acknowledgment. of paternity or through a, court action
'declaring it. The principle governing the status of a child born out
 of wedlock has been fully implemented by the La* of December 1,
 1947, on Parent and Child Relations. . -
   Acknowledgment as an institution creating rights and duties
 between a child and the natural father, as established in the 1947
Law, was unknown under the Austrian Civil Code of 1811 which
 dealt- only with the evidence in proving extramarital paternity for
 the sole purpose of the child's support. The ,provisions of the Austrian Civil Code of 1811 were repealed by the enactment of the 1947
Lam 'on Parent and. Child Relations. litisuant to section 43 of the
 same Law, the provisions of this Law —were also to apply to cases
 involving parent and child relations, which had arisen before the
 coming into force of the said Law, provided, however, no final decision was rendered befoie the 1917 Law 'became effective. The provi-

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  sions on legitimation under the Austrian Civil Code of 1811 and
 .under the 1947 Law on Parent and Child Relations both provided
  for legitimation, under certain circumstances, either by the subsequent marriage of the parents or by court decree, the illegitimate
  child thereby acquiring the status of a child born in wedlock.
     The 1947 Law provides that the establishment of paternity is
  admissible and that extramarital paternity may be established by the
  voluntary acknowledgment of the natural father or in a court action
  by final decree (sections 4 and 24). The person who admits that
  he is the father of a child born out of wedlock is considered as such
' (section 24, paragraph I). Acknowledgment of paternity on the part
  of the father is a unilateral act which becomes effective when the
  child's mother agrees to it (section 24, paragraph 3). Acknowledgment of paternity, in order to be effective, must be made in a form
  prescribed by law. Therefore, the father may acknoWledge the
  child either before a registrar, in a public document, or in his will
   (section 24, paragraph 2). The 1947 Law requires no other formal-'
  ity for the acknowledgment before the registrar. According to an
  authority, the father makes the statement of acknowledgment personally before the registrar, either immediately after the birth of
  the child or at any time later. The registration in the public records
  of births is conclusive evidence of the acknowledgment and is irrevocable.
  . Acknowledgment of paternity has retroactive effect and is effective
  with respect to everyone. Family relations thenceforth exist between
  the child and the natural father. Both the father and the mother
 exercise parental power over the child. The child acquires the family name of its mother, but it may take that of its father provided
 the parents agree upon it.
     In summary, under the law now in force in Yugoslavia, a child
 born out of wedlock may acquire the status or a status similar to
 that of a child born in wedlock by three methods, i.e, legitimation
 by subsequent marriage, by court decree, or by acknowledgment of
 the natural father. A child born out of wedlock before the enactment of the 1947 Law on Parent and Child Relations may be
 acknowledged only in accordance with the provisions of this Law if
 no final decree on the matter was rendered before the 1947 Law
 became effective. The report concludes that it is not possible to find
 any cases or authoritative comment on how today's Yugoslav courts
 would specifically interpret the rights and duties arising from an
acknowledgment under the old law-. There ia, however, ease law
which shows an inclination on the part of present-day courts to
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 Interim Decision #1519           •
 adjudicate under the 1947 Law the content of parent and child relations which Were formalized under the old law.
    It therefore appears from the report of the Library of Congress
 that under the law now in force in Yugoslavia, a child born out of
 wedlock' may acquire the status or a status similar to that of a child
 born in wedlock by three methods: legitimation by subsequent marriage court decree; and by acknowledgment of the natural father.
 The Service 'has seized upon the phrase "status similar to that of a
 child born. in Wedlock" in order to predicate its denial. An examine- ,
                                                                               ionftherpdcasthirewnsdolybcaue
the inheritance rights of an acknowledged. child` as compared to a
child born in wedlock may differ in the various Yugoslav jurisdictions. However the report reiterates several times that legitimation
through acknowledgment of paternity is effective with respect to
everyone; that family relations thenqlorth exist between the child
:and the natural father; and that both the father and the mother
exercise parental power over the child. Summarizing, the report
 concludes acknowledgment by the natural father is one of the three
methods of, legitimation of a child born out of -wedlock the other
two being subsequent marriage of the parents or court decree.
   The birth certificate establishes that the father acknowledged the
 child. on July 14, 1944- and that the child's mother confirmed the
statement of acknowledgment. It therefore appears that ever since
the beneficiary was five months old, the petitioner has regarded her
 as his child. The beneficiary appears to meet the requirements of •
either section 141(b) (1) (A) or (C) of the Immigration and Nationality Act? Under the Yugoslav Law, the beneficiary is the legitimate child of the petitioner. The appeal will be sustained and the
petition approved.
    ORDER: It is ordered that the appeal be sustained and the peti-
' tiOn be approved for preference quota status under section 2.03(a)
  (3)of the Immigration and Nationality Act.
  I Similar conclusions were reached after the introduction of the Communist
or 'Socialist systems In the following cases: Matter of Galling, 9 & N. Dee.
518 (1981)—Hungery; Matter of Zrzyewelci. 8 L & N: Dec. 73 (1958)—Poland;
unreirrted Matter of Pajor, A-14192231 (Horeb 38, 1965) —Itumanian.




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