Interim Decision #2545
MATTER OF GOMEZ
In Visa Petition Proceedings
A-21074555
Decided by Boa,-rd December 20, 1976
(1) Petitioner, a native of Ecuador and citizen of the United States, filed an immediate
relative visa petition in behalf of her father which was denied by the District Director on
the ground that petitioner had not been legitimated prior to reaching the age of 18
years as required in section 101(b)(1X C) of the Immigration and Nationality Act. The
record shows that petitioner was born in 1937 and although petitioner's parents allegedly lived together as husband and wife since 1934, they were not formally married
until 1957 in Ecuador. At no time did they acknowledge filiation of the petitioner.
(2) In order to effect ligitimation under Ecuadorian law, both parents must marry each
other and acknowledge filiation of the child. Although the record establishes that the
parents did marry each other in 1957, when petitioner was 20 years of age, there is no
evidence that they acknowledged filiation of petitioner. More importantly this marriage
did not take place prior to petitioner's eighteenth birthday as required by section
-101(131(1)(0 of the Act. Therefore the petitioner is not eligible to confer immediate
relative status on her father and the visa petition was properly denied.
ON BEHALF OF BLit tiONER: Pro se
BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members
The United States citizen petitioner applied for immediate relative
status for the beneficiary as her parent under section 201(b) of the
Immigration and Nationality Act. In a decision dated July 27, 1976, the
District Director denied the petition on the ground that the petitioner
Ind not been legitimated before she became 18 years of age as required
by section 101(b) of the Act. The petitioner appeals from the denial. The
appeal will be dismissed.
The petitioner was born in Ecuador on February 19, 1937. She immigrated to the United States on June 19, 1964, man led a native bovn - -
United States citizen, and became a naturalized citizen herself on March
1974. Although her natural parents have allegedly lived together as
husband and wife since 1934, they were not formally married until May
1, 1957, in Ecuador. The petitioner's mother has received an approved
visa petition as the petitioner's natural mother but there is no provision
in the Act permitting the beneficiary, the petitioner's natural father, to
a•ecompany his spouse, unless the petitioner is considered legitimate.
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Interim Decision #2545
We have received a memorandum from the Library of Congress,
dated October 19, 1976, in which the Ecuadorian law of legitimacy and
legitimation is outlined. See Appendix A. Under Ecuadorian law, children are legitimate if they were either born or conceived during a "fully
valid" or "putative" marriage of their parents, or their parents married
each other after conception.
It is settled that the burden is on the petitioner to establish eligibility
for the benefits sought. Matter of Brantigan, 11 I. & N. Dec. 493 (BIA
1966). As there has been no evidence of either a "fully valid" or "putative" marriage at the time of the petitioner's birth, we must conclude
that the petitioner, in this case, was "illegitimate."
In order to effect a legitimation under Ecuadorian law, both parents
must not only acknowledge filiation of the child, but they must also
marry each other. Although the record establishes that the petitioner's
parents did marry each other in 1957, there is no evidence that they
acknowledged filiation as required by Ecuadorian law. More importantly, the marriage of the petitioner's parents did not take place before the
petitioner's eighteenth birthday, as required by section 101(b)(1)(C) of
the Immigration and Nationality Act. Therefore, despite the sympathetic aspects of this case, we have no alternative but to uphold the
decision reached by the District Director.
Plven though we must dismiss the petitioner's appeal, we wish to
point out that there are two courses of action that may be open to her.
She can advise the beneficiary to apply for an immigrant visa at a United
States consular office. In view of his advanced age, he may not be
required to comply with the labor certification requirement of the Act.
His wife, the petitioner's mother, could also submit a visa petition
application for him as her spouse once she has attained lawful permanent
residence. He may then be eligible for second preference classification
under the recently enacted amendments to section 203(a)(2) of the Act.
Nevertheless, the District Director's denial of the petition was correct. Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.
APPENDIX A
FILIATION UNDER THE LAW OF ECUADOR
In view of the date of birth given, a 1930 version of the Ecuadorean
Civil Code as amended by Supreme Decree 94 of November 23, 1935, 1
wasconultedfrhip.
C6digo Civil IC. Civ. [Taneres Grams Nacionales, Quito, 19801 and C6digo Civil
Altotado [C. Civ. II] [La Prense Catolica, Quito, 1957].
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Interim Decision #2545—Appendix
A. Birth out of Wedlock
The codal provisions as amended established and defined the basic
categories of children as follows:
Children are either legitimate or illegitimate. Legitimate children are
those who have been either born or conceived during a fully valid or
putative marriage of their parents as well as those whose parents have
married each other after conception thereof. Illegitimate children are
those who have been voluntarily acknowledged as such by either parent
or both parents as well as those who have been declared to be so by
judicial decision.2
Regarding children born out of wedlock, the code provides that they
may be acknowledged by either parent or both parents. to such cases,
the affected children shall enjoy the rights assigned to them by law in
respect to the acknowled ging parent or parents. 3
Acknowledgment of children shall be made by means of a public
instrument which may be either notarial, issued before a judge and
three capable witnesses, on a will, by a personal statement issued at the
time of the registration of birth, or as a part of the marri age record of
the parents. 4
A child who has not been voluntarily acknowledged by the parents
may petition the courts to issue a declaration of filiation in regard with
either one specific parent or both parents. The courts may issue such
declaration in the following cases:
(1) When the father, after having been notified of the child's petition,
appears before the court and states under oath that he acknowledges
the child as his own;
(2) When the conception of the child may be positively linked to facts
established as kidnapping and/or rape as well as any otherform of illegal
deprivation of personal freedom in which the parents were directly and
p ersonally involved as offender and victim;
(3) In case of seduction involving the child's parents;
(4) When there was a concubinary relationship between the parents at
the time of the child's conception; and
(5) When the alleged father has provided for or contributed to the
support of the child in his capacity as father. 5
In view of the above, it may be stated that, under the laws in force in
children born out of wedlock, even when acknowlechged by their
p arents, were assigned to the category of illegitimate children, unless
other requirements were also met; they could not be legitimated by the
mere acknowledgment by either parent or both parents.
2 C. Civ. I, arts. 30, 31 and 269.
3 C. Civ. I, arts. 267 and 271.
° C. Civ. I, arts. 201 arid 269.
C. Civ. II, arts. 277 and 289, as amended.
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Interim Decision #2545—Appendix
B. Legitimation of Child-en
The Civil Code as amended by Supreme Decree 94 of November 21,
1935, 6 prescribes that the marriage of the parents to each other produces the effect of legitimating ipso jure the children conceived or born
prior to the celebration of such marriage.' Those born prior to the
celebration of the parents' marriage must be previously acknowledged
in accordance with the legal formalities.
Children born prior to the celebration of the marriage who were not
acknowledged by either parent or both parents as illegitimate do not
benefit with the ipso jure legitimation by the subsequent marriage of
their parents. Such children were required to be acknowledged in
exactly the same manner prescribed by the code for any illegitimate
child, by both parents. This acknowledgment may take place at any
time. 8
It is therefore concluded that legitimation of children born out of
wedlock required two basic elements: (1) acknowledgment of filiation by
both parents, and (2) subsequent marriage of the child's parents to each
other. As stated above, the ipso jure effect of the subsequent marriage
of the parents is granted with limitations.
R. del E. Compilacion de It eformas at Codigo Civil, Leyes y Reglamentos Conexos 17
UT2Ileres Graficos del Ministerio de Gobierno, Quito, 1942].
Id. art. II, amending C. Civ. I, art. 200.
* C. Civ. II, arts. 267 and 269, as amended.
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