• Interim Decision #1542
Minima of ALE°
In Visa Petition Proceedings
A-13912092
Decided by Board December 1, 1985
Petition by a II. S. citizen to accord pc/agnate status as a stepchild to the
alleged illegitimate mad or her haaband by another woman to whom be was
never married, and who has not otherwise been legitimated, is denied since,
other than the statement of petitioner's husband that he is the father of the
child, there is no evidence to support such eligm; and the evidence fails to
establish the existence of a family unit, the beneficiary, following the death
of her mother, having been cared for by her maternal grandmother. Cf.
Matter of rho, Int. Dee. 'No. 1641.
The case comes forward on appeal from the order of the District
Director, New York District, dated September 2, 1965 denying the
visa petition for the reason £hat the petitioner's husband was never
married to the henefioiailoo mother and she has not otherwise been
legitimated; therefore, the beneficiary cannot derive a benefit
through the petitioner and it is concluded that the beneficiary is not
a child- as defined. in section 101(b) of the Act.
The petitioner, a native-born citizen, of the United -StateS, seeks
nonquota status on behalf of the beneficiary as hqr stepdaughter.
,
The beneficiary is-a native and citizen of Italy, born December PI,
1950. The petitioner was married. on October 1, 1955 to Angelo
Reins and the beneficiary is alleged - to be his natural daughter. In
a. supporting affidavit the petitioner's husband states that he became
acquainted and intimate with Elena Vainly, in 1948; that the relationship continued until early in 1950; that Elena Want was married and her husband had abandoned her; that in May 1950 he left
Castelvetrano and at that time Elena Vaiana told him that she was
pregnant and he knew that she was to have his child; that he learned
that she gave birth to a baby girl *ht.= she named Carmel% after
his mother.
There have been submitted a birth certificate relating to the b6neficiary showing her birth as Decend;ix 'T, 1950 at Castelvetrano,
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Interim Decision #1542
Trapani, Italy, the daughter of Filippo and Elena Vaiana. There
has also been submitted a certificate of the death of the beneficiary's
natural mother, Elena Vaiana, the daughter of Lorenzo and Fran-
- cases Guarino, on June 9, 1952 at Castelvetrano, Thera has
also been submitted a Confession or Declaration of Accountability
by Notarial Act executed by Francesca Guarino stating that from
1952, after the death of the -mother, Carmela Aleo, 14 years old, has
been provided sufficiently and under her firm control, under her
normal income without 'benefit of any additional funds because Car-
• mela Aleo is her grandchild.
The petitioner, by virtue of her marriage to her husband on October 1, 1955, claims thereby to have become the stepmother of the
beneficiary, his alleged illegitimate child. However, other than the
affidavit of the husband, there is.no evidence to support this claim.
The birth certificate of the beneficiary clisoloses•.that her father is
Filippo Aleo and her mother is Elena Vaiana. No reference is made
in this birth certificate to the petitioner's husband, Angelo Reina.
The "Declaration of Accountability" shows that the maternal grandmother, Francesca Guarino, has had the care of the beneficiary since
1952 after the death of her mother, under normal income without
benefit of any additional funds because the beneficiary is her grandchild. . Even. if the statement by the petitioner's husband that he
was the father of the child were accepted, despite the very strong
presumption of legitimacy attaching to a birth • occurring during
:wedlock, it would appear that the child, under Italian law, would
be an adulterine-child according to Article 252 of th6 Italian Civil
Code of 1942?
The petitioner's counsel has cited "the case of Nation v. &Tardy,
239 F. Supp. 531 (S.D. N.Y., March 1965), as supporting his position. One of the most persuasive factors in the Nation case was -the
existence of a family unit. The facts in the' nstant case clearly do
not bring it within the scope of the holding in the Nation case. The
petition will be denied for the reason that the evidence fails to establish a. stepmother-stepchild relationship between the petitioner and
the beneficiary. The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the shine is hereby
dismissed.
'Article 252 provides that adulterine children, to wit, those, who are produced .by an unlawful connection between two persons, who at the time the
child was begotten were either of them or both married to another person,
may be acknowledged at any time by the parent who was not married when
the child was begotten and by the other parent only after his marriage is
dissolved by the death of the other spouse. There is no documentary evideuce of acknowledgment of paternigv_by the putative father for support.
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