Interim Decision #2600
MATTER OF OBANDO
In Visa Petition Proceedings
A-21172362
Decided by Board July 20, 1977
(1) United States citizen petitioner filed a visa petition seeking to classify the beneficiary
as his unmarried daughter, under section 203Ia)(1) of the Immigration and Nationality
Act. Beneficiary had been born out of wedlock in 1953 in Belize. On December 15, 1976,
the Municipal Court of St. Croix, Virgin Islands, issued a decree of legitimation under
Title 16, section 462 of the Viigin Islands Code which provided that the beneficiary
would be considered as the legitimate child of the petitioner for all purposes, from the
time of her birth.
(2)Since the act of legitimation of the beneficiary did not take place until she was 23 years
of age, beneficiary cannot qualify as petitioner's "child - under section lUl(b)(1)(C) of the
Act, and the visa petition was properly denied.
(3) Matter of Palacio, 11 I. & N. Dec. 183 (BIA 1965) distinguished.
ON BEHALF OF PETITIONER. Russell R .Tnhnsnn, F.squire
King Christian Hotel
Post Office Box 3649
Christiansted, St. Croix
U.S. Virgin Islands 00820
BY: Milhollan, Chairman; Wilson, Maniatis, Appleman, and Magufre, Board Members
The United states citizen petitioner filed a visa petition seeking to
classify the beneficiary as his unmarried daughter under section
203(a)(1) of the Immigration and Nationality Act. The District Director
denied the petition on the ground that the beneficiary had not been
legitimated before she reac.hed the age of 18 years, and therefore could
not qualify as the child of the petitioner within the meaning of section
101(b)(1)(C) of the Act. The petitioner has appealed. The appeal will be
dismissed.
The facts in this case are not in dispute. The beneficiary was born
out-of-wedlock in Belize (British Honduras) on September 14, 1953.
Until coming to join her father in St. Croix, Virgin Islands on November
20, 1976, she had always resided with her natural mother in Belize.
The petitioner and his wife brought a legitimation proceeding in the
Municipal Court of St. Croix, where they reside. The court issued a
decree of legitimation dated December 15, 1976. The decree states that
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the beneficiary "shall be considered as the legitimate child of [the petitioner] from the time of her birth for all purposes."
The legitimation was accomplished in accordance with Title 16, Virgin
Islands Code, section 462, which provides:
The father of an illegitimate child, by publicly acknowledging it as his own, receiving
it as such with the consent of his wife, if he is married, into his family, and otherwise
treating it as if it were a legitimate child, thereby adopts it as such; and such child is
thereupon deemed for all purposes legitimate from the time of its birth.
The revision note in the code explains that section 462 is based upon
section 230 of the Civil Code of California, which uses virtually identical
language.' See Matter of Peters, 11 I. & N. Dec. 691, 692 (BIA 1966).
The record shows that the petitioner complied with the requirements
of section 462 of the Virgin Islands Code.
In order to qualify as the petitioner's unmarried daughter, the beneficiary must at one time have been the petitioner's "child" within the
definition of section 101(b)(1) of the Act. Matter' of Coker,
14 I. & N.
Dec. 521 (BIA 1974).
Under section 101(b)(1) of the Act, a person may qualify as a "child"
within the context of the immigration laws only where the parent - child
relationship exists by reason of any of the circumstances set forth in
section 101(b)(1). The term "child," as defined in that section, does not
include illegitimate children not claiming an immigration status by virtue of their relationship to their mother under section 101(b)(1)(D). The
child must either be legitimate under section 101(b)(1)(A) or legitimated
in accordance with the provisions of section 101(b)(1)(C) of the Act:
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. (Emphasis supplied.)
. The beneficiary's legitimation took place when she was 23 years old. It
would thus seem clear that the legitimation occurred too late to confer
any immigration benefits. However, the petitioner stresses the fact that
the decree confers legitimacy from the time of' the beneficiary's birth.
This argument is fallacious. Generally, when a child is legitimated, the
child is deemed legitimate from the time of its birth. That has nothing to
do with the age of the child at the time when the act of legitimation takes
place. In this case, the act of legitimation took place when the child was
23, not when it was born.
The petitioner seeks to support his novel argument by citing our
' Section 230 of the California Civil Code was repealed in 1975 when California adopted
the Uniform Parentage Act. Matter of Buenaventura, Interim Decision 2636 (BIA 1977).
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decision in Matter of Palacio, 11 I. & N. Dec. 183 (BIA 1965). That case
arose under section 230 of the California Civil Code, which, as noted
above, was the model for section 462 of the Virgin Islands Code. The
beneficiary in Palacio was 21 years old when the decree of legitimation
was issued. However, the acts constituting the legitimation had occurred much earlier, when the beneficiary was eight years old. The
decree specifically stated that the date of legitimation was December 31,
1952, when the beneficiary was eight years old. In Palacio no reliance
was placed upon the fact that the legitimated child was deemed legitimate for all purposes from the time of its birth. What was crucial was
the fact that the child had become legitimated when it was eight years
old. The legitimation decree, issued 13 years later, merely confirmed the
child's legitimate status; it did not create that status.
The petitioner's argument thus has no merit.
ORDER: The appeal is dismissed. .
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