Interim Decision #2941
MATTER or MARTINEZ
In Visa Petition Proceedings
A-26013185
Decided by Board May 10, 1983
(1)In order to obtain preference status for the beneficiary as his married daughter
under section 253(a)(4) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(4),
a petitioner must establish that the beneficiary once qualified as his "child" within the
meaning of section 101(b)(1) of the Act, 8 U.S.C. 1101(b)(1).
(2)Under the law of Florida, the father's residence and domicile, legitimation of a child
born out of wedlock requires the marriage of the child's natural parents. Florida Statutes
Annotated, Title 42, Domestic Relations, Section 742.091.
(3)By virtue of the Family Code of Cuba, effective prospectively from March 8, 1975,
all children have equal rights miller the laws of that country.
(4) Where the beneficiary, a native and citizen of Cuba, was born out of wedlock in
1958, and acknowledged by her natural father in 1962, prior to her 18th birthday,
she is deemed a legitimated child for immigration purposes under section 101(b)(1)(C)
of the Act, 8 U.S.C. 1101(b)(1)(C).
ON BEHALF OF PETITIONER: Edwin A. Steinberg, Esquire
Schreiber & Steinberg
513 Ainsley Building
14 N.E. First Avenue
Miami, Florida 33132
By: Milhollan, Chairman; Maniatis, Durine, Morris, and Vacca, Board Members
The United States citizen petitioner applied for preference status for
the beneficiary as his married daughter under section 203(a)(4) of the
Immigration and Nationality Act, S U.S.C_ 1153(0(4 In a decision
dated July 22, 1981, the District Director denied the petition. The petitioner has apppaled. The appeal appears to have been filed several days
late. We will take certification of this case pursuant to 8 C.F.R. 3.1(c).
The appeal will be sustained and the visa petition approved.
The beneficiary is a native and citizen of Cuba who was born out of
wedlock on June 9, 1958. The petitioner is a 43-year-o1d native of Cuba
and a citizen of the United States The petitioner resides in Florida_ The
petitioner filed a visa petition on behalf of the beneficiary on October 20,
1980.
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Interim Decision #2941
A birth certificate submitted with the visa petition reflects that the
beneficiary is the natural daughter of the petitioner. The record further
reflects that the beneficiary's parents never married.
The District Director in his decision references the changes in the
1975 Cuban law regarding the nature of filiation. He refer' specifically
to Article 65 of law 1289, known as the Family Code of Cuba, effective
March 8, 1975, which provides that all children born in Cuba, whether in
or out of wedlock, are considered legitimate and entitled to all rights
and privileges under the law. The District Director further noted that
the provisions of Article 65 are not retroactive but are prospective in
nature and, therefore, a child born> prior to March 8, 1975, in Cuba, must
meet the qualifications as defined in section 101(b)(1)(C) of the Act, 8
U.S.C. 1101(b)(1)(C). Consequently, the District Director denied the
petition on the ground ttat the beneficiary was born out of wedlock
prior to 1975 and had never been legitimated.
On appeal, counsel for the petitioner contends that the "beneficiary
was legitimated under the laws of Cuba as in effect at the time of her
birth on June 9, 1958," as required by section 101(b)(1)(C) of the Act.
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefits sought. Matter of Branagan, 11 I&N
Dec. 493 (BIA. 1966). In order to qualify as the petitioner's daughter,
the heneficiavy must at one time have been the petitioner's child within
the definition of section 101(b)(1) of the Act, 8 U.S.C. 1101(b)(1). Matter
of Coker,
14 I&N Dec. 521 (BIA 1974).
Under section 101(b)(1) of the Act, a person may qualify as a "child"
within the context of the immigration laws only where theparent-child
relationship exists by reason of any of the circumstances set forth in
section 101(b)(1). The term "child," as defined in that section, does not
include illegitimate children not claiming an immigration status by virtue of their relationship to their mother under section 101(b)(1)(D). The
child must either be legitimate under section 101(b)(1)(A) or legitimated
in accordance with the provisions of section 101(b)(1)(C) of the Act:
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. (Emphasis supplied.)
In the present case, the beneficiary was born out of wedlock.
Accordingly, it must be established that she was either deemed legitimate or legitimated under the law of Cuba or Florida.
Under the law of Florida, Title 42, Domestic Relations, Section
742.091, of the Florida Statutes Annotated (West Supp. 1982), provides
as follows:
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742.091 Marriage of parents
If the mother of any child born oaf of wedlock and the reputed father shall at any time
after its birth intermarry, the child shall in all respects be deemed and held legitimate. . . .
Inqsmuch as the beneficiary's natural parents never married, she has -
not been legitimated under Florida law.
On January 14, 1983, we requested the position of the Immigration
and Naturalization Service with regard to the foreign law issues raised
on appeal. On April 25, 1983, the Service responded with a legal opinion
from the Hispanic Law Division of the Library of Congress regarding
the legitimacy of the beneficiary under the law of Cuba in effect at the
time of her birth. In the Library of Congress report dated March 1983,
which is concurred in by the Service, it is stated that the rights granted
by the Family Code to natural children who were acknowledged by their
parents prior to the date of the enforcement of the Code take effect
prospectively (not retroactively) from the date of the enforcement of the
Code (March 8, 1975). This report further states that the provisions of
Article 36 of the 1976 Constitution became effective prospectively on
February 24, 1976.
As noted above, on March 8, 1975, the Republic of Cuba adopted law
1289, known as the Family Code (Gaceta Oficial, Feb. 15, 1975). Article
65 of this Code provides:
All children are equal and for this reason they all have equal rights and the same duties
with regard to their parents, regardless of the civil status of the latter.
Furthermore, Article 36 of the present Constitution of Cuba in force
as of February 24, 1976 (Gaceta Oficial, Feb. 24, 1976, Special Edition),
provides:
MI children have equal rights, regardless if they are born in or out of wedlock. AU
qualifications on the nature of filiation are abolished. There shall not be any statements
whatsoever on differences of birth or on the civil status of parents in the birth registration acts of the children or in any other document where parentage is referred to.
The Fam9y Code of 1975 and the Constitution of 1976 do not contain
any provision making it retroactive. Further, under Article 8 of the
Cuban Civil Code now in force, laws shall not have retroactive effect
unless they so provide. However, we note that 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 Pavlovic,
17 I&N Dec. 407 (BIA 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 I&N Dec. 646 (BIA 1978).
In this case, the petitioner has met the test for legitimating the beneficiary as described in Article 65 of the Family Code of Cuba adopted on
March 8, 1975. The beneficiary was 16 years old when the Cuban law
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was enacted. The petitioner acknowledged paternity of the beneficiary
in her birth certificate registered in Cuba on June 23, 1962. We find that
the petitioner has adequately established the familial relationship.
Accordingly, the beneficiary qualified as the "child" of her natural father
within the meaning of section 101(b)(1)(C). We note that unless there is
evidence to show that the father of a legitimated child has been deprived
of his natural right to custody, he will be presumed to share custody
with the child's mother, and to satisfy the legal custody requirement of
section 101(b)(1)(C) of.the Act. Matter of Rivers, 17 I&N Dec. 419 (BIA
1980).
Based on the above, we find that the beneficiary has been legitimated
according to the law of her residence, Cuba, and therefore qualifies as
the "child" of the petitioner within the meaning of section 101(b)(1) of
the Act. The appeal will accordingly be sustained, and the visa petition
will be approved.
ORDER The appeal is sustained and the visa petition is approved.
402.
