Interim Decision #1678
Ma.).1, t or VAR PAMLEN
In Visa Petition Proceedings
A-14913610
Decided by Board December 21, 1966
Since under the law of The Netherlands, petitioner, although acimorriedged by
his natural parents following birth out of wedlock, has never been legitimated
by the subsequent marriage of his parents, he is ineligible to file a visa petition
to accord his half-sister preference status under section 203(a) (5) of the
Immigration and Nationality Act, as amended, inasmuch as the common parent
is the father.
The case conies forward on appeal from the order of the Acting
District Director, Frankfurt, Germany, dated September 15, 1966,
denying the visa petition for the reasons that the relationship of
brother and sister has not been established as defined in section 101(b)
of the Immigration and Nationality Act; the visa petition does not
satisfy the requirements of 8 CFR 204.2 (d) (4) ; and the petitioner is
by definition not the son of the natural father since he was born out
of wedlock.
The petitioner, a native of Djakarta, Indonesia, born April 2,
1936, male, is a naturalized citizen of the United States. He seeks
preference quota status on behalf of the beneficiary as his sister, under
section 203 (a) (5) of the Immigration and Nationality Act. The beneficiary was born on March 16, 1947 at Deventer, The Netherlands.
The visa petition is supported by the birth certificate of the petitioner showing that he was born at Batavia, Indonesia on April 2,
1936, the son of Jenny J. C. F. Van lieuven Van Staereling. Annotations on the birth certificate show that the birth was registered in
the 1936 birth register of Batavia and was acknowledged by Wilhelmus Maurits Van Pamelen and his natural mother as their child.
There is also enclosed an undated statement by the putative father of
the petitioner explaining that due to several circumstances not to be
disclosed a marriage between him and the natural mother of the petitioner never came into being, that eventually both parties separated
from each other by mutual consent and since no marriage -was in-
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Interim Decision #1678
volved, divorce papers were not needed; as part of the agreement
their child was recognized and given the father's surname.
There has also been submitted a marriage certificate between the
petitioner's father and Charlotte Florentinus at The Hague on August 26, 1953. Also the birth certificate of the beneficiary at Deventer,
The Netherlands, on March 16, 1947 the daughter of Wilhelm Maurits
Van Pamelen and Charlotte Florentinus. It is noted that the beneficiary's parents were married on August 26, 1953 and that the birth
certificate contains the notation that By Order in Council dated June 9,
1965 the beneficiary was granted permission to change her family
name of Florentinus into Van Pamelen.
The petitioner admits that the petition does not establish a brothersister relationship as defined in section 101 (b) (1) of the Act but complains that the criteria for such relationship is not set out in said
section. Furthermore, he asserts he is legitimate by virtue of the
acknowledgment.
The regulations pertinent to visa petitions, 8 CFR 204.2(d) (4),
provide that if a petition is submitted on behalf of a brother or sister,
the birth certificate of the petitioner and the birth certificate of the
beneficiary, showing a common mother, must accompany the petition.
If the petition is on behalf of a brother or sister having a common
father and different mothers, the marriage certificate of the petitioner's
parents, and the beneficiary's parents, and proof of the legal termination of the parents' prior marriages, if any, must accompany the
petition.
The provision relating to brothers or sisters having a common
mother set forth in the above regulation is predicated upon the fact
that section 101(b) (1) (D) of the Immigration and Nationality Act,
as amended, defines the term "child" to include an illegitimate child
by virtue of its relationship to its natural mother. In addition, administratively we have held that illegitimate half brothers and sisters
whose common parent is the mother qualify for preference quota
status.1
However, the regulation relating to brothers or sisters having a common father but different mothers requires the marriage certificate of
the petitioner's parents and the beneficiary's parents as well as proof
of the legal termination of the parents' prior marriages, if any. There
is implicit in this requirement of a marriage certificate where the
brother and/or sister have only a common father that the siblings be
legitimate or legitimated children. 2
While the term brother or sister in section 203 (a) (5) of the ImmiI Matter of C—, a L S. N. Dee. 755.
' Matter of C—, 5 I. & N. Dee. 610.
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Interim Decision #1678
gration and Nationality Act is not defined, the provisions of the
pertinent regulation, 8 CFR 204.2 (d) (4), together with the provisions
of section 101(b) (1) (D) of the Immigration and Nationality Act, the
administrative construction, and the fact that from an immigration
standpoint an illegitimate child derives no benefit through its illegitimate father, the term brother and sister means only legitimate brothers
and sisters of the full or half blood. It therefore becomes necessary
to determine whether the petitioner, admittedly born out of wedlock,
has been legitimated under the law of his residence or domicile or under
the law of the father's residence or domicile (section 101(b) (1) (0) of
the Immigration and Nationality Act). There is no claim advanced
that the petitioner was legitimated under the law of the State of his
residence in the United States. However, he claims to have been legitimated through acknowledgment by his father by, virtue of the execution of his birth certificate under the laws of The Netherlands. •
The facts of the case were submitted to the Royal Netherlands Embassy at Washington, D.C. Information received from the Embassy
indicates that by virtue of the father's and the mother's acknowledgment of the petitioner before the keeper of the civie'records, the child
received a status, known in The Netherlands law as an "acknowledged
child" which is best described as "partly legitimated." Examples are
given of certain civil and legal benefits and responsibilities. However,
the letter concludes that it does not appear that the child has been
fully legitimated by a marriage after the acknowledgment of the abovementioned father and mother. It was farther ascertained that Article
527 of the Civil Code of The Netherlands provides that a child born
out of wedlock who has been acknowledged is automatically legitimated by the subsequent marriage of its natural parents.
It is believed that the term "partly legitimated" used by the Embassy
is an euphemism. The letter restates the general rule prevailing in
countries, outside the Soviet or Communist sphere, that acknowledgment alone does not constitute legitimation. There must also be .the
subsequent marriage of the natural parties or a royal or presidential
decree.°
It is therefore concluded that the illegitimate petitioner, who, although acknowledged, has never been legitimated by the subsequent
marriage of his parents, is not eligible to file a visa petition for preference status under section 208(a) (5) of the Immigration and Nationality Act on behalf of his half sister, inasmuch as the common parent is
3 Matter of J—, 7 I. & N. Dec. 338 (France) ; Matter of D—, 7 L & N. Dee. 438
(Italy) ; Matter of F—, 7 1. & N. Dec. 448 (Portugal) ; Matter of TV—, 9 I. &
Dec. 223 (Surinam) ; Matter of 0—, 9I. & N. Dec. 597 (Spain) ; Matter of The, 10
I. & N. Dee, 744 (Indonesia).
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Interim Decision #1678
the father. We take note of the sympathetic factors set forth in the
statement accompanying the appeal by the petitioner but we conclude
that the present law does not permit favorable action.. There is no provision for any administrative discretionary action.
However, we note that the nonpreference quota for The Netherlands
is open. The petitioner, who is a captain in the United States Army,
states that he desires the beneficiary to come into the United States to
take care of his pregnant wife.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
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