COKER

                                                      Interim Decision #2255




                             MATTER OF COKER
                       In Visa Petition Proceedings
                                  A-19509617

                    Decided by Board January 8, 1974
(1) In order to qualify as a "daughter" for preference classification purposes, a
   beneficiary of a visa petition must once have qualified as a child of the
   petitioner under section 101(b)(1) of the Immigration and Nationality Act, as
   amended.
(2) Under the law of Nigeria, a child born out of wedlock is illegitimate; such a
   child may be legitimated through the subsequent marriage of the child's
   parents or by the father's acknowledgement. Acknowledgement involves
   conduct or an act by the father which definitely indicates that the child is his
   ow-n.
(3) Since petitioner has admitted that he never married the mother of the
   beneficiary, who was born out of wedlock in Nigeria, and no evidence has been
   submitted of any act or conduct on the part of the petitioner constituting
  acknowledgment, he has failed to establish that the beneficiary is his legitimate or legitimated child. Therefore, the visa petition to accord beneficiary
  preference status as his daughter under section 203(a)(2) of the Immigration
  and Nationality Act, as amended, is denied.
ON BEHALF OF PETITIONER:                          ON BEHALF OF SERVICE:
 David S. Billet, Esquire                          R. A. Vielhaber
 225 Broadway                                      Appellate Trial Attorney
  New York, New York 10007



  The lawful permanent resident petitioner applied for preference
status for the beneficiary as his daughter under section 203(aX2) of
the Immigration and Nationality Act. In a decision dated January
6, 1972, the District Director denied the petition on the ground
that the beneficiary was not the petitioner's legitimate or legitimated child. The petitioner has appealed from that decision. The
appeal will be dismissed.
  In order to qualify hs a "daughter" for preference purposes, a
beneficiary must once have qualified as a "child" of the petitioner
under section 101(b)(1) of the Act. Matter of Pagnerre, 13 L & N.
Dec. 688 (BIA 1971). The applicable portions of section 101(b) define
a "child" as a legitimate child, or a child legitimated under the law
of the child's residence or domicile, or under the law of the father's
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Interim Decision #2255
residence or domicile, 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. The burden of proof to establish the required relationship rests upon the petitioner. Matter of Brantigan, 

 (B IA 1966).
   On appeal, the petitioner's counsel alleges that under the native
customary law of Nigeria all children are considered legitimate at
birth, regardless of the marital status of the parents. We have
consulted a memorandum of Nigerian law from the Near Eastern
and African Law Division of the Library of Congress. That
memorandum indicates that, contrary to counsel's position, a child
born out of wedlock in Nigeria is illegitimate. He or she may
become legitimated under customary law through the subsequent
 marriage of the child's parents or by the father's acknowledgement. Acknowledgement involves conduct or an act by the father
which definitely indicates that the child is his own. The petitioner
 has admitted that he never married the beneficiary's mother, and
no evidence of any act or conduct constituting acknowledgement
 on the part of the petitioner has been submitted.
   Counsel has offered a letter from a solicitor in Nigeria and a
 letter from the Nigerian consul in New York in support of his
 interpretation of Nigerian law. Neither of these documents stands
 for the position taken by counsel. The solicitor's letter states;
"Once a father acknowledges and recognises a child as his own then
under Native Law and Custom the child is entitled to succeed him
or inherit his property for all purposes" (emphasis added). It
 appears from this letter that some act of acknowledgement is
required, but as we noted above, no evidence of any such act has
been submitted. The letter from the Nigerian consul states that,
"marriages contracted in Nigeria between two Nigerians according to Nigerian Native Law and Custom are valid and recognized
under the Laws of Nigeria." This statement is not relevant to the
present case, because the petitioner has admitted that he never
married the beneficiary's mother.
   We conclude that the petitioner has failed to establish that the
beneficiary is his legitimate or legitimated child. Therefore, the
petitioner has not shown that the beneficiary is eligible for
preference status as his daughter under the Act. The decision of
the District Director was correct. The appeal will be dismissed.
   ORDER: The appeal is dismissed.




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