LEVY

                                                            Interim Decision #2830




                                 MATTER OF LEVY

                          In Visa Petition Proceedings
                                     A-23353467
                      Decided by Board October 8, 1980

(1) 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 for visa petition purposes
  from the time that country's laws are changed.
(2) Where a petitioner submitted evidence that a Haitian Presidential decree of January
  27, 1959, purported to abolish all legal distinctions between children based on the
  marital status of their natural parents, and that Article 202 of the Civil Code of Haiti
  as amended by Decree Law 466 of December 22, 1944, which required marriage of the
  natural parents for legitimation (See Matter of Remp,1411iN Dec. 183 (BIA 1972)) no
  longer governed, case was remanded for a determination of the effect of the new law on
  the visa petition. Matter of Annang, 

 (BIA 1973).
ON BEHALF OF PETITIONER                               ON BEHALF OF SERVICE
  Robert E. Slatus, Esquire                             Jim Tom Haynes
  50 East 42nd Street                                   Appellate Trial Attorney
  Suite #1001
  New York, New York 10017
By Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members


  In a decision dated May 7, 1980, the District Director denied a visa
petition filed on behalf of the beneficiary as the petitioner's unmarried
daughter under section 203(a)(1) of the Immigration and Nationality
Act, 8 U.S.C. 1153(a)(1). The petitioner appealed. The record will be
remanded for further proceedings.
  The petitioner is a citizen of the United States. The beneficiary is a
native and citizen of Haiti, who allegedly was born out of wedlock to
the petitioner and a woman he never married. The District Director
based his denial of the visa petition on his finding that, because the
beneficiary was born out of wedlock, and her parents never married,
she was an illegitimate,child who had not been legitimated, and thus
could not receive an immigration benefit through her father.
  A beneficiary of a visa petition can qualify as an "unmarried
Interim Decision #2830
daughter" of a petitioner only if the beneficiary could once have
qualified as a "child" of the petitioner under section 101(b)(1) of the
Act, 8 U.S.C. 1101(b)(1). Matter of Coker,

 (BIA 1974).
Section 101(b)(1) defines a child, in pertinent part, as,
  (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; ...
Since the beneficiary in the present case was born out of wedlock, it
must be established either that she has been legitimated under the law
of Haiti br New York or that she is considered legitimate under the
applicable law.
  New York requires the marriage of a child's natural parents in order
to legitimate a child born out of wedlock. Matter ofReyes,

 (BIA 1978); Matter of Bullen, 

 (BIA 1977). The
beneficiary has dins not been legitimated under that law_ In a prior
Board decision, Matter of Remy, 14 1&N Dec. 183 (BIA 1972), we held
that legitimation of a child in Haiti also required the marriage of the
child's natural parents, as well as acknowledgment of the child prior to
or during the act of marriage. We relied for this rule on Article 302 of
the Civil Code of Haiti, as amended by Decree Law 466 of December 22,
1944. On appeal, the petitioner has presented a copy, with translation,
of the Haitian Presidential Decree of January 27, 1959. That decree
provides in pertinent part,
    Article 1. Natural filiation shall give rise to the same obligations as those deriving
 from legitimate filiation.
    Nonetheless, the proof of natural filiation may result only from voluntary recognition or from judicial recognition in the case where the latter is authorized by Jaw.
    Article III. The present decree which repeals all laws or applications of laws, all lawdecrees that are contrary to it; namely articles 308, 583, 606; second paragraph, 624 and
 742 of the Civil Code, will be published and executed at the suite of the State Secretary
 of Justice.
   The 1959 Presidential Decree was not discussed in our decision in
Matter of Remy, supra. It appears to abolish all legal distinctions for
Haitian children whether born in or out of wedlock. When the country
where a 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 for
immigration purposes. Lau v. Kiley, 

 (2 Cir. 1977); Matter
of Hernandez, Interim Decision 2712 (BIA 1979); Matter of Santhez,

 (BIA 1979); Matter of Wong, 

 (BIA 1978);
cf. Petition for Naturalization of Fraga, 

 (D.P.R. 1974);


                                          540
                                                  Interim Decision #2880
Matter of Bautista, Interim Decision 2731 (BIA 1979).
  Article III of the 1959 presidential decree purports to repeal all laws
to the contrary, but does not list Articles 302 or 466 of the Civil Code
among the specific sections listed as repealed. Nevertheless, its terms
appear to be all inclusive, warranting consideration by the District
Director of its applicability. Although a copy of the 1959 decree was
part of the visa petition record, its legal effect was not discussed by the
District Director. Consequently, we will remand the record for further
proceedings in which the petitioner retains the burden of establishing
the beneficiary's eligibility for preference immigration status and the
legal effect of the 1959 Haitian Presidential Decree. Matter of Brantigan, 

 (BIA 1966); Matter of Annang, 

(BIA 1973). Therefore, on remand the petitioner should submit to the
District Director more evidence regarding the 1959 decree's effect on
Article 302 and Haitian legitimation. See Matter of Remy, supra. Such
evidence could include statements from representatives of the government of Haiti or experts in Haitian law stating their legal conclusions
as to the beneficiary's status. It is so ordered.
  ORDER, The record is remanded for further proceedings in accordance with this opinion and the entry of a new decision.
  FURTHER ORDER, After a new decision is entered, the record
shall be certified for our review.