DOUBLE-PENA

Interim Decision      - 20111




                        MATTER OF DOBLE-PENA

                      In Visa Petition Proceedings

                                A-18287172
                                A-18287176

                  Decided by Board August 15, 1.969

Since beneficiaries, who were born out of wedlock in the Dominican Republic
  in 1948 and 1949, were over 18 years of age at the time of the legitimating marriage of their natural parents in 1968, they cannot qualify as children within the meaning of section 101(b) (1) (C) of the Immigration and
  Nationality Act, as amended, and are ineligible for immediate relative
  status.
ON BEHALF OF PETITIONER: Edelmiro Salas Garcia, Esquire
                       P. 0. Box 21211
                       Rio Piedras, Puerto Rico 00928
                        (Brief filed)


   The cases come forward on appeal from the decision of the District Director, San Juan, Puerto Rico District, dated May 7, 1969
denying the visa petitions for the reason that the beneficiaries
were more than eighteen years at the time the marriage occurred,
and cannot meet the definition of children within the meaning of
the Act; the beneficiaries therefore cannot be classified as immediate relatives of a United States citizen.
   The petitioner, a native of the Dominican Republic, a citizen of
the United States through his father, 42 years old, male, seeks
immediate relative status on behalf of the beneficiaries as his
children. The female beneficiary, Marina, was born December 28,
1948 at San Pedro de Marcoris, Dominican Republic. The male
beneficiary, Bartolo, was born August 24, 1949 at the same place.
Both beneficiaries are single. At the time of the beneficiaries'
birth, their mother was single. The petitioner married the mother
of the beneficiaries, Inez Maria Pena de Varga, on August 5, 1968
at Santo Domingo, Dominican Republic, when the beneficiaries
were over the age of eighteen years.
   The petitioner's first marriage to Anna Josefa Souffront Rodri-

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 guez de Doble was terminated by divorce on August 3, 1964 by a
 decree of the Court of First Instance of the Judicial District of
 San Pedro de Macoris, Dominican Republic. His second marriage
 to Carmelina Chalas de Doble was terminated on May 15, 1968 by
 a decree of the same court.
    Counsel in his brief points out that the petitions were denied
 under section 101(b) (1) (C) of the Immigration and Nationality
 Act which provides that the term "child" means an unmarried
 person under 21 years of age who is 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 of 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.
 Counsel argues that under the law of Puerto Rico, which has
 been the petitioner's domicile since the beginning of his efforts to
 have his children at his side, there was no need to accomplish the
act of "legitimation" required under Dominican law; that under
 the law of Puerto Rico, the place of the father's domicile, discrimination against children on the basis of their "illegitimate"
 or "legitimate" birth was discarded as anarchronistic and unconstitutional by the Supreme Court of Puerto Rico.
    The Civil Code of the Dominican Republic, 1958, Article III,
 Section 1, entitled "Legitimation of Natural Children," provides
that there must be acknowledgement of the natural offspring followed by the subsequent marriage of the parents to effect legitimation. Therefore the beneficiaries do not qualify as "children"
within the meaning of the Act under the law of the Dominican
Republic. Nor were they legitimated for immigration purposes
since the marriage which made them legitimate occurred when
they were over 18 years of age.
    Title 31, Laws of Puerto Rico, Annotated, deals with legitimate, illegitimate and legitimated children. Under section 442,
children are legitimate, illegitimate or legitimated. Legitimate
children are those born in wedlock. Illegitimate children are those
born out of wedlock. Illegitimate children may be legitimatized by
the subsequent marriage of their parents. Under section 482, the
legitimation of children had out of wedlock shall be accomplished
by the subsequent reciprocal marriage of the parents. Section 484
provides that the legitimation shall become effective from and
after the date of wedlock of the parents.
   Section 501 provides that all children born out of wedlock subsequent to the effective date of the Act (90 days after May 12,

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1942) shall be natural children, whether or not the parents could
have married at the moment when such children were conceived.
These children will be legitimatized by the subsequent marriage
of the natural parents. Under section 506, recognized children
have certain civil rights such as the right to bear the surname of
the father, to be supported by him, and the right to inherit from
the natural father. However, they are not the same as legitimate
or legitimated children.
  Legitimation, both in the Dominican Republic and in Puerto
Rico, can be accomplished only by the subsequent intermarriage
of the natural parents occurred
                       40        on August 5, 1968, the beneficiaries were over the age f 18 and could not qualify under section
101(b) (1) (C) of the , et. The appeal will be dismissed.
  ORDER: It is o ered that the appeal be and the same is
hereby dismissed.




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