Interim Decision #2956
MFirfl OF CHERISMO
In Visa Petition Proceedings
A-26167013
A-26167014
Decided by Board February 9, 1984
(1) Under the Civil Code of Haiti, as amended by the Presidential Decree of January
27, 1959, children born out of wedlock and acknowledged by their natural father
prior to January 27, 1959, have the same rights and obligations as legitimate children. Matter of Mesias, 18 I&N Dec. 298 (BIA 1982), clarified.
(2) Where the beneficiaries, natives and citizens of Haiti, were born out of wedlock
in 1954 and 1955, respectively, and acknowledged by their natural father in 1955,
they are deemed legitimated children for immigration purposes under section
101(bX1XC) of the Immigration
ration and Nationality Act, § 1101(bX1XC) (1982).
ON BEHALF OF PETITIONER: ON BEHALF OF SERVICE:
Robert E. Slatus, Esquire Richard Soli, Acting
Suite 1101, 50 East 42nd Street Appellate, Trial Attorney
New York, New York 10017
BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members
The petitioner appeals from the March 24, 1983, decision of the
district director revoking the prior approvals of the visa petitions
for the beneficiaries as his unmarried sons under the provisions of
section 203(a)(2) of the Immigration and Nationality Act, 8 U.S.C.
§ 1153(a)(2) (1982). The appeal will be sustained.
The petitioner is a 68 year old native and citizen of Haiti who
- -
was admitted into the United States as a lawful permanent resident alien on April 2, 1977. The beneficiaries are natives and citizens of Haiti, ages 29 and 28. The evidence filed in support of the
petitions consisted of the birth certificates of the beneficiaries
which indicate that they were born out of wedlock to the petitioner
and Marie Therese Beauzil on April 10, 1954, and October 12, 1955,
respectively. This evidence also indicates the petitioner's acknowledgment of paternity of the beneficiaries before the Civil Registrar
in Haiti on November 2, 1955.
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Interim Decision #2956
In visa petition proceedings, the burden of establishing the
claimed relationship is upon the petitioner. See Matter of Brandgan, 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) (1982), and its pertinent
subsection (C), which provides:
The term "child" means an unmarried person under twenty-one years of age who
is—
(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. (Emphasis added.)
The district director found that under Haitian law, an act of acknowledgment must occur after the enactment of the Presidential
Decree of 1959 in order to effectuate legitimation of a person born
prior to the effective date of the decree and so revoked the petitions. On appeal, the petitioner asserts that the revocation is contrary to the decision of this Board in Matter of Levy, 17 I&N Dec.
539 031A 1980).
The granting of a visa petition in this case is dependent upon the
finding of the requisite familial relationship. The validity of the
district director's ruling that the petitioner did not legitimate the
beneficiaries must be determined under both New York and Haitian law pursuant to section 101(b)(1)(C) of the Act. The petitioner
resides in New York and the beneficiaries reside in Haiti. The state
of New York requires the marriage of the natural parents to effect
legitimation. See Matter of Reyes,
17 I&N Dec. 512 BIA 1980). Legitimation has not been effected under New York law as the petitioner states that he has never married the mother of the beneficiaries.
It must also be resolved whether the petitioner's acknowledgment of paternity in 1955 is sufficient to constitute legitimation
under current Haitian law. Prior to 1959, the sole method to effect
legitimation in Haiti was the marriage of the natural parents. See
Matter of Remy,
14 I&N Dec. 183 (13IA 1972). The Presidential
Decree of January 27, 1959, abolished all legal distinctions for Haitian children whether born in or out of wedlock except for the offspring of adulterous or incestuous relations. In Matter of Richard,
18 I&N Dec. 208 BIA 1982), this Board recognized the effect of the
decree and held that persons born out of wedlock in Haiti subsequent to January 27, 1959, and acknowledged by their natural fathers are deemed to be legitimate children under section
101(b)(1)(A) of the Act. This holding was expanded by the Board in
Matter of Mesias,
18 I&N Dec. 298 (BIA 1982), to apply to persons
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Interim Decision #2956
born out of wedlock prior to the 1959 Presidential Decree but who
were acknowledged after the date the decree took effect. That decision stated that because the act of acknowledgment occurred after
the 1959 decree, legitimation had been effected. It implied, based
on a prior opinion by the Library of Congress, that the acknowledgment must take place after the 1959 decree. This would support the
revocations in the instant cases by the district director since the
acknowledgment took place prior to the 1959 decree.
During the pendency of this appeal an opinion dated October 27,
1983, was received from the Hispanic Law Division of the Library
of Congress specifically addressing the effect of both birth and acknowledgment prior to the 1959 decree. The opinion states:
The children in this inquiry benefit from the provisions of the Decree of January
27, 1959, prospectively, as of the date this law took force in Haiti. Since they were
already acknowledged at the time (1955) of the registration of their births, no new
act of acknowledgment needed to be executed to grant them the benefits of the
law of 1959.
The Service concurs with this conclusion in a memorandum
dated November 8, 1983. It concludes that the beneficiaries were
timely legitimated and met the legal custody requirement as interpreted in Matter of Rivers, 17 I&N Dec. 419 (131A 1980).
Consequently, our review of the record indicates that the beneficiaries were legitimated by the petitioner under Haitian law while
under the age of 18 and qualify as his children under the provisions of section 101(bX1)(C) of the Act. 1 Accordingly, the visa petitions shall be approved.
ORDER: The appeal is sustained and the approval of the visa
petitions is reinstated.
This resolution makes consideration of the petitioner's contentions regarding
Mutter of Levy, supra, unnecessary_
9.r7
