MALONEY

Interim Decision #2683




                               MATTER OF MALONEY

                            In Visa Petition Proceedings

                                       A-22560105

                      Decided by Board December 21, 1978
(1) Under the Constitution of Panama of March 1, 1946, and its implementing law of
   September 20, 1946, all acknowledged children are to be treated equally and considered
   legitimate, regardless of whether or not the natural parents ever marry.
(2) The right of legitimation extends to those born before March 2, 1946. To preserve this
   right, in eases where paternity has not previously been acknowledged in the birth
   records, it is only necessary for the father to rectify the birth registration in the Civil
   Registry.
(3) Where petitioner acknowledged his paternity of illegitimate child before officials of the
   Civil Registry in Panama in 1937, 13 days after the birth of the beneficiary, legitimation
   occurred on that date under the law of Panama.
ON BEHALF OF PETrrioNEA: Pro se
BY: Milhollan, Chairman; Pdaniatis, Appleman, Maguire, and Farb, nuard Memb e rs



    The United States citizen petitioner has applied for immediate relative status for the beneficiary as his married daughter, under section
203(a)(4) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(4).
in a decision dated July 14, 1978, the District Director denied the
petition on the groupd that the claimed relationship had not been established. The petitioner has appealed. The record will be remanded.
    The petitioner is a 64-year-old native of Panama and a naturalized
citizen of the United States. The beneficiary is a 41-year-old native
and citizen of Panama, the offspring of the petitioner and a Panamanian
citizen.
    The District Director denied the petition on the ground that the
beneficiary was illegitimate at birth and had never been legitimatedthe petitioner, Olk appeal, contests this finding, and has presented a
certificate of birth listing him as the beneficiary's father. The birth
c ertificate indicates that the petitioner declared that the beneficiary was
his daughter on July 7, 1937. The question that arises is whether or not
this declaration is sufficient, under Panamanian law, to constitute ari
a-cknowledgment of paternity legitimating the beneficiary.
    previous cases we have dealt with under Panamanian law concerned
children born after tile enactment of the Constitution of 1946. Matter of

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Dela Rosa, 

 (BIA 1974); Matter of Sinclair, 

 (BIA 1970). In this ease, the beneficiary was born in 1937.
Under the provisions of Law 43 of 1925, then in fore e, legitimation could
only be accomplished by marriage to the natural mother and acknowledgment, either before, during, or after the ceremony. The petitioner
never married the natural mother, so under the provisions of Law 43,
the beneficiary was never legitimated. However, this finding does not
close the discussion.
    The Constitution of March 1, 1946, while not providing that all laws
were to have retroactive effect, did repeal all laws not compatible with
it'. Article 58 granted all children equal rights before the law and
abolished classification based upon the nature of the father-child relationship.2 "Classification" referred to the categories legitimate, natural,
or illegitimate which had existed under prior laws. 3 Article 59 granted
fathers the authority to protect children born before the effective
date of the Constitution, by "rectifying" any records in which such
"classification" had been established.'
    In addition, Law 60 of September 30, 1946, which implemented the
provisions of Articles 58 and 59, provides that a father may protect a
child born prior to March 2, 1946, by rectifying records which qualify
the child. Such rectification protects the child as provided in Article 59
of the Constitution. Article 62 of Law 60 deals with acknowledgment of
a child of legal age where uch was not recorded in his birth registration. 5 Article 70 allows a father to protect the child under the Constitution by having the child's birth record annotated in the margin. 6
   The language of the constitutional and statutory provisions indicates
two things. The first is that under the 1946 Constitution, all acknowlArticle 44, Constitution of 1946; Article 253, 

 2   Article 58, 

  . . . All children are equal before the law and they have the same rights.... Any
 classification based on the nature of the relationship is abolished. . . .
 o Civil Code of 1916.
 • Article 59, Constitution of 1946.
 Authority is granted to the father of a child born before the effective date of this
 Constitution to protect him by the provisions of this Article, ty means of the rectification of any record or attestation in which any classification has been established with
 respect to said child.
 5 Article 62, Law of September 30, 1946.

 All children are equal under the law, have the same interstate inheritance rights and the
 right to be acknowledged by their parents... .
 o Article 70, 

 In order for the father of a child born prior to March 2, 1946, to protect him under the
 provisions of Article 59 of the Conbtilmiluo, lie alien declare it. in a public instrument, a
 copy of which shall be submitted to the Civil Registry, for annotation in the margin of
 the child's birth record.

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 edged children are to be treated equally in the eyes of the law as
 legitimate children. It is clear that acknowledgment of paternity, with
 or without marriage, will lead to legitimation. The second thing it
 indicates is the clear intent of the Panamanian drafters to confer the
 right to be treated equally, the right of legitimation, to those born
 before March 2, 1946. To preserve this right, it is only necessary to
 rectify the birth registration where paternity has not been acknowledged_ This language shows a clear desire to consider children previously acknowledged, before the Constitution of 1946 went into effect, as
 legitimate from the time the acknowledgment was entered into the Civil
 Registry. This result also flows naturally from the absence of any
 provisions requiring previously acknowledged children to be legitimated
 by an action such as rectification, which is necessary where paternity
 was not previously acknowledged.
    The legitimation here occurred on July '7, 1937, when the petitioner
 went before the officials of the Civil Registry and acknowledged his
 paternity. Since this acknowledgment was made 13 days after the birth
 of the beneficiary, we also find that the act of legitimation occurred
 before the age of 18.
    Under section 101(b)(1)(C) of the Act, 8 U.S.C. 1101(b)(1)(C), though,
 one question remains unresolved on the record before us. The third
requirement of that section is that the child must be in the legal custody
 of the legimating parent or parents when the act of legitimation occurs.
We have found that the beneficiary was legimated on July 7, 1937, when
the written acknowledgment was made in the Civil Registry. It is
unclear, however, whether the petitioner had legal custody at that time.
 We will therefore remand the record to the District Director for clarification of this point.
    ORDER: The record is remanded to the District Director for further
proceedings consistent with the foregoing opinion and the entry of a new
decision.
    FURTHER ORDER: Should a decision be adverse to the petitioner,
an appropriate order shall be entered and the record shall be certified to
lus for review.




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