Interim Decision #2626
MATTER OF ESPIRITU
In Visa Petition Proceedings
A-21223696
Decided by Bogrd December 21, 1977
(1) The term legitimate" as used in section 101(b)(1)(A), 8 U.S.C. 1101(a)(1)(A), refers
solely to a child born in wedlock.
(2) Under the law of the Philippines (Civil Code of 1950) to effect the legitimation of a child
born out of wedlock: (a) the child must qualify as a "natural" child (a child born out of
wedlock to parents who were free to marry each other at the time of conception); (b) the
child most be acknowledged or recognized by its parents; and (c) the parents of the child
must marry one another; and a "common law" relationship between the parents does not
qualify as a marriage under Article 270 of the Civil Code.
(3) Under Section 338-21(a), Hawaii Revised Statutes, all children born out of wedlock,
irrespective of the manage of either parent to another, become legitimate; (a) on the
marriage of the parents with each other; (b) on the voluntary, written acknowledgment of
paternity by the father and mother; or (c) on establishment of the parent and childrelationship under the Uniform Parentage Act.
(4) Under Section 5S4-4(a)(4), Hawaii Revised Statutes, the parent and child relationship
between a child and the natural father may be established if, while the child is under the
age of majority, he receives the child into his home and openly holds out the child as his
natural child.
(5) A visa petition for an illegitimate child held properly denied where a child was not
legitimated under the law of the Philippines, his place of birth, and no proof is preseited
that the child was received openly into the home of the natural father petitioner so as to be
legitimated under Hawaiian law.
ON BEHALF OF PETITIONER: Ronald T. Oldenburg, Esquire
677 Ala Moana
Suite 900
Honolulu, Hawaii 96913
BY: Milhollan, Chairman; Wilson, Marrieds, Appleman, and Maguire, Board Members
The petitioner' applied for immediate relative status for the beneficiary as his child under section 201(b) of the Immigration and Na-
1 In his visa petition which was received by the Immigration and Naturalization Service
on. January 6, 1977, the petitioner indicated that question number 30 pertaining to United
States citizenship was not applicable to him. In response to question number 31, he
indicated that he was a lawful permanent resident alien as ofJuly 14, 1971. In his appellate
brief, counsel for the respondent informed this Board that the petitioner became a
naturalized citizen of the United States at Honolulu, Hawaii, on December 22, 1976.
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tonality Act, 8 U.S.C. 1151(b). In a decision dated March 17, 1977, the
District Director denied the petition. The petitioner has appealed. The
appeal will be dismissed.
The petitioner is a native of the Philippines and a resident of Honolulu, Hawaii. The beneficiary is a single male alien who is a native,
citizen, and resident of the Philippines. He was born on. December 31,
1960.
The District Director's decision was predicted upon a finding that the
petitioner and the beneficiary's mother never married.. He therefore
concluded that the petitioner failed to establish the claimed relationship.
The record contains a sworn statement by the petitioner. That statement was prepared by the Service in question and answer form at the
District Director's office in Honolulu, Hawaii, and was signed by the
petitioner and a Service immigration inspector on January 31, 1977. In
his statement, the petitioner stated that he was the natural father of the
beneficiary; that he never married Thelma Aguirre, the beneficiary's
natural mother; thathe lived with her in a "common law" relationship;
and that she died in 1974. The petitioner also indicated that the beneficiary had never been to the United States; and he never legitimated
the beneficiary.
Under section 101(h) of the Act, 8 U.S.C. 1101(b), 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 cir-
-
cumstances 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 ligitimated in accordance with the provisions of section
101(b)(1)(0) 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.
The term "legitimate" as used in section 101(b)(1)(A) refers solely to a
child born in wedlock. See Matter ofBatten, Interim Decision 2621 (BIA
1977); Matter of James, Interim Decision 2461 (BIA 1975); Matter of
Dela Rosa, 14 I. & N. Dec. 728 (BIA 1974); Matter of Kztbicka,
14 I. &
N. Dec. 303 (BIA 1972). The beneficiary was not born in wedlock, and he
therefore cannot qualify as the petitioner's legitimate child.
With respect to legitimation, the petitioner has not presented evidence to show that the beneficiary was legitimated under the law of the
child's residence or domicile. "Under the law of the Philippines (Civil
Code of 1950), to effect the legitimation of a child born out of wedlock
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the following primary conditions must be met: (1) the child must qualify
as a 'natural' child (a child born out of wedlock to parents who were free
to marry each other at the time of conception); (2) the child must be
acknowledged or recognized by its parents; and (3) the parents of the
child must marry one another. Since the concept of "common law"
marriage, as understood in the United States, is not recognized in the
Philippines, a 'common law' relationship between the parents of a child
born out of wedlock in the Philippines does not qualify as a marriage of
the parents under Article 270 of the Civil Code for the purpose of
legitimation of the child." Matter of Buenaventura, Interim Decision
(BIA, April 27, 1977); Matter of Blancafior, 14 I. & N. Dec. 427
(BIA 1973); and Matter of Maungat,
11 I. & N. Dec. 885 (BIA 1966).
Counsel submits in the notice of appeal that the beneficiary may be
considered as a legitimate child under the laws of the State of Hawaii,
the state in which the petitioner currently resides. Since 1866 the law in
Hawaii has been that children born out of wedlock became legitimate on
the marriage of the natural parents with each other. 2 In 1975, however,
the State of Hawaii adopted the Uniform Parentage Act. That statute,
which became effective on January 1, 1976, amended the law of legitimation in Hawaii. Under Section 358 21(a) of the Hawaii Revised Statutes all children born out of wedlock, irrespective of the marriage of
either parent to another, become legitimate (1) on the marriage of the
parents with each other, (2) on the voluntary, written acknowledgment
of paternity by the father and mother, or (3) on establishment of the
parent and child relationship under the Uniform Parentage Act. Under
this statute, the parent and child relationship between a child and the
natural father may be established in various enumerated ways. Counsel
for petitioner urges that the provisions of Section 584-4(a)(4) of the
Hawaii Revised Statutes are applicable to the petitioner. That section
provides that a parent and child relationship is established if, while the
child is under the age of majority, the parent receives the child into his
home and openly holds out the child as his natural child.
While we recognize the changes in the law of legitimation in Hawaii,
we find that petitioner has not submitted evidence to establish that he
has legitimated the beneficiary under the Uniform Parentage Act of
Hawaii or any other Hawaiian Statute. Thus, he has not complied with
the requirements of section 101(b)(1)(C). Consequently, the petitioner
has failed to sustain his burden of proving that the beneficiary qualifies
as his child under section 201(b) of the Act. The appeal accordingly is
dismissed.
ORDER: The appeal is dismissed.
Section 338-21, Hawaii Revised Statutes; In Re Female Mincre Child, 477 P.2d 780; 52
Ha-w. 395 (1970).
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