Interim Decision #2227
MATTER OF JULIANUS
In Visa Petition Proceedings
A-11753637
Decided by Board September 14, 1973
Under the law of Guadeloupe, French West Indies, legitimation of a child born
out of wedlock is accomplished by the subsequent marriage of his father and
mother.
. ON BEHALF OF PETITIONER: Ben Carter, Esquire
138 E. Court Street
Room 327 Temple Bar Bldg.
Cincinnati, Ohio 45202
The permanent resident petitioner applied for preference status
for the beneficiary as his unmarried son under section 203(aX2) of
the Immigration and Nationality Act. The District Director denied
the application in an order dated May 1, 1972. The petitioner
appeals from that decision. The appeal will be dismissed.
The beneficiary is a native of Guadeloupe, French West Indies
and a citizen of France. The record indicates that the petitioner
was never ceremonially married to the beneficiary's Mother. The
petitioner's residence and domicile are in Ohio.
The issue presented in this appeal is whether the beneficiary
qualified as a "child" for purposes of the immigration laws when
he was under the age of 21, for he must have been a "child" then
in order to qualify as an unmarried son now. See Matter of R—, 5 L
& N. Dee. 435, 439 (BIA, 1953).
The term "child" is defined in section 101(b)(1) to include any
unmarried person under 21 years of age who is—
(A) a legitimate child: or
(B) a stepchild ...; or
(C) 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 eighteen years and the child is in the legal custody of the legitimating
parent or parents at the time of such legitimation; or
(D) an illegitimate child ... on whose behalf a status, privilege, or benefit is
sought by virtue of the relationship of the child to its natural mother; or
(E) a child adopted ...
435
Interim Decision #2227
Subparagraphs (B), (D), and (E) dearly are inapplicable to the
present case. The petitioner claims that the beneficiary is a
legitimated child, although he presented no evidence to show
legitimate birth or legitimation under the law of either the
beneficiary's or the petitioner's residence or domicile.
With respect to the laws of Guadeloupe, the residence and
domicile of the beneficiary, the beneficiary does not qualify as a
legitimated child. Clearly, the beneficiary was not a legitimate
child at birth, since his parents were not married to each other,
and children born out of wedlock are legitimated only by the
subsequent marriage of their father and mother, Article 221,
French Civil Code. 1 This provision was in force in Guadeloupe at
all relevant times including when this application was made, and
until January 3, 1972. On that date the wording of this provision
was changed slightly because of the enactment of a law on
filiation, but not in such a way as would affect the outcome of this
case. 2
The petitioner claims that the beneficiary was legitimated according to the laws of Ohio, alleging that because Ohio recognizes
common law marriages, the beneficiary was somehow legitimated.
However, he presents no evidence regarding either common law
marriage or legitimation under Ohio law. The petitioner states in
his petition that he never lived with the beneficiary's mother in
the United States. His own residence in Ohio is not sufficient basis
to claim the existence of a common law marriage under that
state's law. Therefore, it appears that the beneficiary has not been
legitimated in accordance with Ohio law.
It is well settled that an illegitimate child gains no benefits
under the immigration laws on the basis of its relationship to its
father, Matter of C-,
5 I. & N. Dec. 610
(BIA, 1954). Since a parentchild relationship, as defined by the immigration laws, was never
formed, the beneficiary does not qualify as an unmarried son for
purposes of section 203(a)(2) of the Act.
Counsel claims in his brief that in 1969 a government official led
the petitioner to believe that all he needed to do to accord the
1 Article 331 of the French Civil Code (Law of April 25, 1924): "Children born
outside of marriage, other than those born of adulterous intercourse, shall be
legitimated by the subsequent marriage of their father and mother when the
latter have acknowledged them before their marriage or when they acknowledge
them at the time of its celebration ...."
2 Article 331 of the French Civil Code (Law of January 3, 1973): "All children
born outside of marriage shall be legitimated by operation of law by the
subsequent marriage of their father and mother.
"If their filiation was not already established, these children shall be the
object of the acknowledgment at the time of celebration of marriage ...."
436
Interim Decision #2227
beneficiary legal status as his son for immigration purposes was to
wait until the boy was 18 years old. He alleges that the petitioner
was not informed that he would have to legitimate his son before
the boy reached the age of 18. He contends that, because the
petitioner relied to his detriment on the official's statement, the
Government should be estopped from barring the youth's admission now. However, there is no evidence in the record to substantiate these assertions, and the burden to establish eligibility for
benefits sought under the immigration laws falls upon the petitioner in visa petition proceedings, Matter of Brantigan,
11 I. & N.
Dec. 493, 495
(BIA, 1966); Matter of Yee,
11 I. & N. Dec. 27,
30
(BIA, 1964).
Accordingly, we agree with the District Director that the petitioner has failed to establish the beneficiary's eligibility for the
preference he seeks, and therefore we shall dismiss the appeal.
ORDER: The appeal is dismissed.
437
