Interim Decision #2799
MATTER OF PAVLOV1C
In Visa Petition Proceedings
A-23340106
Decided by Board June 23, 1980
(1) Under Article 58 of the Yugoslavian Constitution, children born out of wedlock are
considered equal to those born in wedlock with respect to the rights and duties of the
parents toward them, and the terms legitimate and illegitimate are no longer used in
domestic relations legislation.
(2) The beneficiary, born out of wedlock in Yugoslavia in 1960, is deemed legitimate at
birth.
(3) Under the Law of Yugoslavia, acknowledgment is not necessary to effect legitimation but does help to establish the identity of the parent. Matter °Panzer, 11 I&N Dec.
395 (MA 1905), is overruled insofar as it holds that acknowledgment is part of
legitimation.
ON BEHALF OE PETITIONER: ON BEHALF OF SERVICE
Pro se Jim Tom Haynes
Appellate Trial Attorney
By: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members.
The lawful permanent resident petitioner applied for preference
status for the beneficiary as his unmarried daughter under section
203(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1152 (a)(2).
In a decision dated December 3, 1979, the District Director denied the
petition on the ground that the petitioner had never legitimated the
beneficiary and, consequently, the beneficiary was not entitled to any
status under the immigration laws. The petitioner has appealed. The
visa petition will be granted.
The petitioner is a 59-year-old native of Yugoslavia and lawful
permanent resident of the United States. The beneficiary is a 19-year-old native and citizen of Yugoslavia.
On April 12, 1979, the petitioner filed a visa petition on behalf of the
beneficiary. In support of his petition, ho submitted a number of
affidavits declaring that the beneficiary is his natural daughter. A
certificate from an elementary school in Belgrade lists the petitioner
as the beneficiary's father. The beneficiary's birth certificate, however,
Interim Decision #2799
fails to list a natural father.
On appeal, the petitioner contends that he is, in fact, the beneficiary's father and, accordingly, she should be granted lawful permanent
residence.
At oral argument, the petitioner submitted a statement from Maria
Nikolic, the petitioner's estranged wife, stating that the beneficiary is
the petitioner's daughter. The petitioner explained that the beneficiary
would visit him and his wife, Maria, in Paris before they moved to New
York and the beneficiary came to live there permanently. He also
submitted a certificate executed before the Municipality Secretary
Office for General Law and Municipal Affairs in Cacak, on December
12, 1979, stating that he had lived illegitimately with the beneficiary's
mother, now deceased, and "from that illegimated (sic) marriage they
have a illegimated (sic) daughter Dusica Pavlovic." The petitioner
contended that his daughter is the beneficiary of property in Florida
and the sole beneficiary under his life insurance policy. On March 19,
1980, we received a copy of the petitioner's Last Will and Testament,
executed in March 1980, naming Dusica Pavlovic as the beneficiary of
all Aleksandar Nikolic's possessions.
The Service submitted a copy of the Yugoslavian Civil Law on
History, Family, and Property in effect during November 1960, the
beneficiary's birthdate. The Service agreed that the law tended to
extinguish the distinction between legitimate and illegitimate children. It conceded that the Board could either grant the petition if it
found that the petitioner had executed a public document prior to the
beneficiary's eighteenth birthday, or remand for such a determination.
We disagree with the Service's basic premise; that is, that an act of
acknowledgment must have occurred prior to the beneficiary's
eighteenth birthday.
In visa petition proceedings, the burden of establishing the claimed
relationship is upon the petitioner. Matter of Branagan, 11 I&N Dec.
493 (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 sueh le•gitimation;_ _
The term "legitimate", as used in section 101(b)(1)(A) of the Act,
normally refers to a child born in wedlock. See Matter ofJames,15 I&N
Dee. 544 (BIA 1975); Matter of Dela Rosa, 14 I&N Dec. 728 (BIA 1974);
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Matter of Kubicka, 14 I&N Dec. 303 (BIA 1972). However, when the
country where the beneficiary was born and resides eliminates all legal
distinctions between legitimate and illegitimate children, all natural
children are deemed to be the legitimate offspring of their natural
father from the time that country's laws are changed. See Chin Lau v.
Kiley,
563 F.2d 543 (2 Cir. 1977); Matter of Hernandez, Interim Decision 2712 (BIA 1979); Matter of Sanchez, 16 I&N Dee. 671 (BIA 1979);
Matter of Wong,
16 I&N Dec. 646 (BIA 1978).
In Matter of Jancar,
11 I&N Dec. 365 (BIA 1965), we found that under
the law of Yugoslavia, an illegitimate child may be legitimated by
acknowledgment of the natural father. In that case, the petitioner
signed a statement that he was the beneficiary's father. A notation of
this act was made on the beneficiary's birth certificate. We held,
however, that the beneficiary was a "child" within the meaning of
section 101(b)(1)(A) or (C) of the Act. We hold today that such a child
is legitimate at birth under subsection (A), not legitimated later under
subsection (C) by acknowledgment.
Under Article 58 of the Yugoslavian Constitution, children born out
of wedlock are considered equal to those born in wedlock with respect
to the rights and duties of the parents toward them, and the terms
legitimate and illegitimate are no longer used In domestic relations
legislation. All children, therefore, are legitimate at birth. In order for
a child born out of wedlock to realize his or her rights, his or her
extramarital paternity must be established. This person, who admits
that he is the lather of the child born out of wedlock, is considered the
father through an act of acknowledgment.' Acknowledgment can be
accomplished before a registrar, in a public document, or in a will'
This act of acknowledgment of paternity has retroactive effect and is
effective with respect to everyone. It is of a declaratory nature, not a
constitutive act; the child is already legitimate. Acknowledgment
serves to establish the identity of the parent.
This act of acknowledgment, establishing paternity, is separate and
apart from an act of legitimation as defined in section 101(b)(1)(C) of
the Act. Insofar as Matter of Jancar,
id., states the contrary, it is
hereby overruled.
ORDER, The appeal is sustained and the visa petition approved.
A.G_ Chloros„ Yugos7in, Mid Law, p. 234 (Oxford, 1970), Article 3, Fundamental Law
on Relationship Between Parents and Children, Article 58, Constitution of the Socialist
Federal Republic of Yugoslavia of 1968.
A.G. Chien's, Yugoslav Civil Law, p. 235 (Oxford, 1970), Article 24, Establishment of
Paternity.
