Interim Decision #2898
MATTER OF RICHARD
In Visa Petition Proceedings
A-22677182
Decided by Board February 9, 1982 .
(1) Under the Civil Code of Haiti, as amended by the 1959 Presidential Decree, children
born out of wedlock after January 27, 1959, and acknowledged by their natural father
have the same rights and obligations as legitimate children.
(2) Where the beneficiary, a native and resident of Haiti, was born out of wedlock in
1069 and acknowledged by the natural father in 1977, prior to his eighteenth birthday,
he is deemed a legitimate child for immigration purposes under section 101(b)(1)(A)
of the Immigration and Nationality Act, 8 U.S.C. 1101(b)(1XA). Metier of Remy,
14 I&N Dec. 183 (BIA 1972) overruled.
On BanALr OY PaTinoncn; On Duneux or SEnNnou;
Prose Gerald S. Hurwitz '
Appellate Trial Attorney
BY: Milhoflan, Chairman; Maniatis, Maguire, Morris, and Vacca, Board Members
The petitioner appeals from a decision of the District Director dated
May 11, 1981, denying a visa petition filed on behalf of the beneficiary as
the petitioner's unmarried son under section 203(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(2). On December 30, 1981,
the Board entered a decision in this case remanding the proceedings to
the District Director. That decision will be reconsidered on our own
motion. Our December 30, 1981, decision will be vacated and the following decision entered.
The petitioner is a 37-year-old native of Haiti and lawful permanent
resident of the United States. The beneficiary is a 12-year-old male
native and citizen of Haiti who was apparently boin out of wedlock to
the petitioner and a woman he never married. Documents offered by the
petitioner reflect that the beneficiary was formally acknowledged by the
petitioner as his child before an official of the Civil Registry of the
municipality of Duvalierville, Haiti, on December 30, 1977. The District
Director denied the petition on the ground that the beneficiary was born
Out of wedlock and had never been legitimated. The petitioner appealed
from this decision.
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In order to qualify as a "son" for immigration purposes, the beneficiary must once have qualified as the "child" of the petitioner under
section 101(b)(1) of the Act, 8 U.S.C. 1101(h)(1). Matter of Coker, 14
I&N Dec. 521 (BIA 1974). The nertinent parts of section 101(b)(1)
provide:
The term 'child" means an unmarried person under twenty-one years of age who is—
(A) a legitimate child; or
(B) .. .
(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.
In the present case the beneficiary was born out of wedlock. Accordingly, it must be established that he is either deemed legitimate or
legitimated under the law of Haiti or Illinois.
Under the law of Illinois, the petitioner's place of residence, the natural parents must marry in order to legitimate the child. Thus, the beneficiary has not been legitimated under the law of that state.
In Matter of Remy, 14 I&N Dec. 183 (BIA 1972), we held that under
the law of Haiti, the legitimation of a child born out of wedlock requires
the subsequent marriage of the child's natural parents, as well as acknowledgment of the child prior or during the•act of marriage.' We predicated
such holding on Article 302 of the Civil Code of Haiti, as amended by
Decree Law 466 of December 22, 1944. Subsequently, in Matter of Levy,
17 I&N Dec. 539 (BIA 1980), the Board noted a Presidential Decree
adopted in Haiti on January 27, 1959 which provides in pertinent part:
Article 1. Natural relation 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 law.
Article III. The present decree which repeals all laws or applications of laws, all
law-decrees that are contrary to it; namely articles 308, 583, 606; second paragraph, 624
1 Article 302 of the Civil Code of Haiti, as amended by Decree Law 466 of December 22,
1944 (Le Moniteur, December 25, 1944), provides:
Children born out of marriage, with the exception of incestuous or adulterme children,
are legitimated by the subsequent marriage of their father and mother, provided they
are acknowledged before the marriage or during the act of marriage...
Legitimation shall be recorded at the margin of the birth registration of the legitimated
child .
A previous translation of Article 302 provided to the Board reflected that children of
adulterous or incestuous relationships could be legitimated under the provisions of that
Article. The present translation provided by the Library of Congress reflects that such is
not 'he case. Those Board decisions rererenehig the mistranslation are accordingly modified to the extent of such mistranslation. See, for example, Matter of Remy, 14I&N Dec.
183, 184 (BIA 1972).
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• .
and 742 of the Civil Code, will be published and executed at the suite of the State
Secretary of Justice.
The record was remanded in Matter of Levy for more evidence regarding the effect of the January 27, 1959, Presidential Decree.
In the present case, the Service Appellate Trial Attorney requested a
legal opinion from the Hispanic Law Division of the Library of Congress
regarding the legitimacy of the beneficiary under the law of Haiti in
effect at the time of his birth. in the resulting Library of Congress
memorandum, it was opined that the January 27; 1959, Presidential
Decree granted children born out of wedlock after that date "the same
rights and obligations as those created by legitimate filiation." See
Appendix. The Service forwarded the memorandum requesting that "it
be included in the record file and considered by the Board." By memorandum dated December 18, 1981, the Appellate Trial Attorney advised
the Board that "the Service concurs with the opinion of the Library of
Congress in this case . . . ."
We have held that when the country where a beneficiary was. born
and resides eliminates all legal distinctions between legitimate and illegitimate children, all subsequently born children are deemed to be the
legitimate off-spring of their natural father for immigration purposes.
Matter of Pavlovic, 17 I&N Dec. 407 (131A 1980); Matter of Hernandez,
17 I&N Dec. 7 (BIA 1979); Matter of Sanchez,
16 I&N Dec. 671 (BIA
1979); Matter of Wong, 16 l&N Dec. 646 (BIA .1978). The 1959 Haitian
Presidential Decree would appear to abolish all legal distinctions between
children born in and out of wedlock. Article I of the Decree by its terms
repeals all laws to the "contrary." The Library of Congress in an opinion
accepted by the Service concludes that the effect of the 1959 Decree is to
render legitimate children born in Haiti after January 27, 1959. Under
these circumstances, we find that under the law of Haiti at the time of
this beneficiary's birth, a child born out of wedlock was deemed the
legitimate off-spring of his natural father.
The record will be remanded to the District Director for further consideration based on the above findings. The District Director should of
course* be satisfied with the authenticity of any foreign document of
record upon which he relies to establish the claimed familial relationship.
ORDER The December 30, 1981, decision of the Board in this
case is reconsidered and withdrawn and the above decision entered.
FURTHER ORDER: The record is remanded to the District
Director for further proceedings in accordance with the foregoing opinion and the entry of a new decision.
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APPENDIX
"ACKNOWLEDGMENT AND LEGITIMATION"
Haiti
In order to determine certain rights under the Immigration and Nationality Act of 1952, the requester wants to ascertain whether a 1977 act of
acknowledgment of a child born in 1969 in Haiti, attested to by the
father in that country, is eqUivalent to the legitimation of that child.
I. Classification of ChiWren
Under the provisions of the Civil Code of Haiti, children are classified
into three groups: legitimate, natural, and illegitimate. 2 Children of
married parents belong to the first group, those born of unmarried
parents to the second group, and those whose conception and birth
occur under adulterous or incestuous circumstances, to the third.
II. Acknowledgment of Children
Acknowledgment of children and the concomitant legal effects are
also regulated In the Civil Code as amended by Decree Law 466 of
December 22, 1944,3 and subsequently by the Decree of January 27,
1959.4 Pertinent provisions of the Code state:
Art. 805. (as amended in 1944) Acknowledgment of a natural child shall be made
though a special instrument muted before an Official of the Civil Registry ilk is not
made in the birth registration act.
Art. 306. Acknowledgment cannot benefit a child born from an incestuous or adulterous union.
At 307. The acknowledgment made by the father without the assent and consent of
the mother shall not affect the acknowledgment made by the father.
Art. 308. (repealed by the Decree of January 27, 1959) Voluntary acknowledgment
made during the marriage by one of the spouses for the benefit of the other spouse's
natural child born before his or her marriage, with the exception of the acknowledgment
of [their] child, shall not prejudice the former [i.e., their child born out of marriage] or
children born out of this marriage. Nevertheless, the acknowledgment shall pioduce
legal effects after the dissolution of this marriage if no children are born of it.
In addition, the previously cited Decree of January 27, 1959, further
amended the Civil Code by granting acknowledged natural children the
same rights and obligations legitimate children have. This Decree
provides: - - • "- "--
2 A. Leger, Civil Code Annotated, arts. -293 and 302 (Port-au-Prince, Imprimerie de
"La Presse", 1931).
3 Le Moniteur, December 25, 1944.
Id., January 29, 1959.
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Art. 1. Natural filiation creates the same rights and obligations as those created by
legitimate filiation.
Nevertheless, proof of natural filiation cannot be other than that arising out of a
voluntary act of acknowledgment or out of a judicial acknowledgment in those cases
authorized by the law.
In conclusion, under the laws of Haiti, the child born in 1969 and
a4knowledged by his natural father in 1977 benefits from the provisions
of the Decree of January 27, 1959, which grants him the same rights and
obligations as those created by legitimate filiation.
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