BAUTISTA

Interim Decision #2731




                              MATTER OF BAUTISTA
                         In Visa Petition Proceedings
                                     A-22625735
                                     A-22625736
                      Decided by Board October 5, 1979

(1) Under Puerto Rico's Constitution, Article II, sections 1 and 7, and Title 31, section
   441 Laws of Puerto Rico, a child born out of wedlock becomes the legitimate son of his
  father if paternity is established. See Petition for Naturalization of Fraga, 

 (D.P.R. 1974). Matter of Doble-Pena, 

 (BIA 1966), modified.
(2) Acknowledgment by the father is one of the methods for establishing paternity
   under Puerto Rican law. Ocdsio v. Diaz, 

 (1963).
(3) Visa petition by a father on behalf of children born out of wedlock in Puerto Rico,
   approved where the father had acknowledged the children a few days after birth and
  had had legal custody of them all of their lives.

ON BEHALF OF PETITIONER:       Pro se
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire and Farb, Board Members


  The petitioner appeals from the June 8, 1979, decision by the District
Director denying the visa petitions filed on behalf of the beneficiaries
as his children pursuant to section 203(a)(2) of the Immigration and
Nationality Act, 8 U.S.C. 1153(a)(2). The appeal will be sustained and
the visa petitions approved_
  The petitioner is a native and citizen of the Dominican Republic who
was admitted into the United States as a lawful permanent resident on
June 22, 1972. Since then he has resided in Puerto Rico. The
beneficiaries were born out of wedlock in the Dominican Republic on
November 10, 1965, and April 13, 1968, respectively, to the petitioner
and a woman named Francia Benitez Garcia. The petitioner acknowledged both beneficiaries as his son and daughter before the Civil
Registrar of San Cristobal, Dominican Republic, within days of their
birth. The beneficiaries' mother died on July 27, 1970, without ever
having married the petitioner_ In a written document before a Puerto
Rican notary dated May 31, 1979, the petitioner again acknowledged
the beneficiaries as his children.
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  In visa petition proceedings, the burden of establishing the claimed
relationship is upon the petitioner. Matter of Brantigan, 

 (BIA 1966). The applicable statute is section 101(b)(1)-of the Act, 8
U.S.C. 1101(b)(1), and its pertinent subsections are (A) and (C), which
provide:
  The term "child" means an unmarried person under twenty-one years of age who is—
  (A) a legitimate child; or

  (C) 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) normally refers
to a child born in wedlock. See Matter of James,

 (BIA
1975); Matter of Dela Rosa, 

 (BIA 1974); Matter of
Kublicka, 

 (BIA 1972). That is the rule in the Dominican Republic, as we found in Matter of Reyes, 

 (BIA.
1978), and Matter of Doble-Pena, 

 (BIA 1969). In Doble-Pena we also examined Puerto Rico's law on legitimation because the
petitioner, as in the present case, was a Puerto Rico domiciliary. We
examined Title 31, Laws of Puerto Rico, annotated, sections 442, 482,
501, and 506 which had gone into effect in 1942 and concluded that
marriage of the natural parents was required for legitimation.
   Five years after our decision in Doble-Pena the United States District Court for Puerto Rico examined Puerto Rico's law on legitimation
and reached a different conclusion. In Petition for Naturalization of
Fraga, 

 (D.P.R. 1974), the Court examined an alleged
legitimation under the terms of Acticle II Sections 1 and 7 of the
Constitution of the Commonwealth of Puerto Rico and section 441 of
Title 81, Laws of Puerto Rico, annotated which was enacted after the
statutes examined in Doble-Pena, and read as follows:
 Section 1: All men are equal before the law. No discrimination shall be made on
 account of race, color. sex, birth, social origin or condition or political or religious
 ideas. (Emphasis supplied.)
 Section 7: No person in Puerto Rico shall be denied the equal protection of the laws.
 Section 441: All children have, with respect to their parents and to the estate left by
 the latter, the same rights that correspond to legitimate children.
   After reviewing the above statutes the court in Fraga concluded
that a child born out of wedlock became the legitimate son of his father
if paternity was established. The court went on to review the Supreme
Court of Puerto Rico's decision in Ocasio v. Diaz, 

 (1963),
and concluded that acknowledgment by the father was one of the
methods for establishing paternity under Puerto Rican law. Since the
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father in Fraga had acknowledged his child soon after his birth in
Venezuela, the court found that such acknowledgment established the
child's legitimacy under Puerto Rico's law even if the acknowledgment
took place outside Puerto Rico.
   In the present case, the petitioner contends that he has met the test
for legitimating the beneficiaries described in Fraga.He acknowledged
both beneficiaries as his children a few days after their birth. He also
executed another acknowledgment dated May 31, 1979, before a notary
public in Puerto Rico reaffirming his paternity of the beneficiaries. He
further alleges that he had had legal custody of the children all their
lives, since their mother is deceased. It is well settled that the putative
father of an illegitimate child has legal custody of the child against
everyone but the natural mother- Matter of Buenaventura,

 (BIA 1977); of 32 Attorney General's Opinions 162 (1920).
  After carefully reviewing the beneficiaries' record and the above
cases we agree with the petitioner's contention that the beneficiaries
are his legitimate children under Puerto Rico's law and the visa
petition should be approved. Petition. for Naturalization of 

 The latter acknowledgment took place when the petitioner had
the undisputed custody of his orphaned children, and prior to their
eighteenth birthday, as required by the Ad: Therefore, the appeal will
be sustained and our decision in Matter of Doble-Pena, supra, will be
modified accordingly.
 ORDERS The appeal is sustained and the visa petition approved.




  ' We need not reach the question of whether the petitioner had legal custody of the
beneficiaries when he first acknowledged his paternity.

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