Interim Decision #3061
MATTER OF VIZCAINO
In Visa Petition Proceedings
A-28824385
Decided by Board April 15, 1988
(1) In order to qualify as an illegitimate son or daughter under section 203(a) of the
Immigration. and Nationality Act, 8 U.S.C. § 1153(a) (1282), one must have once
' qualified as an illegitimate child under section 101(bX1XD) of the Act,
8 U.S.C.
§ 1101(bX1XD) (Supp. IV 1986).
(2) Section 101(bX1XD) of the Act, ,as amended by the Immigration Reform and Control Act of 1986,
Pub. L. No. 99-603, 100 Stat. 3359, is applicable to all visa petitions filed after the effective date of the amendment, even if the son or daughter
was over 21 at the time the new law went into effect.
(9) Stwtion 101(b)(1)(D) of the Act, as amended, is applicable to all immediate relative
petitions filed and pending at the time the change in the statute went into effect.
(4) In all cases where immigration benefits are sought by virtue of the relationship
of an illegitimate son or daughter to his or her natural father, it must be shown
that a "bona fide parent-child relationship" was established when the son or
daughter was unmarried and under 21 years of age.
(5) Congress' expansion of section 101(bX1XD) to allow illegitimate children to receive or bestow immigration benefits through their natural fathers, provided a
"bona fide parent-child relationship" is shown, was clearly intended as a generous
provision, and it should be generously interpreted.
(6) In considering whether a "bona fide parent-child relationship" exists under section 101(bX1)(D), the key is a genuine parent -child relationship in fact, not merely
a tie by blood.
(7) To establish a "bona fide parent-child relationship," there should be a showing
that the parties at some point actually lived together, or that the father held out
the child as his own, or that he provided for some or all of the child'a needs, or
that in general the father's behavior evidenced genuine concern for and interest
in the child.
ON BEHALF OF Ph ilHONER: ON BEHALF OF SERVICE:
Mark R. von Sternberg, Esquire Diane Reimer Bean
United States Catholic Conference Acting Appellate Counsel
902 Broadway
New York, New York 10010
BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members
644
Interim Decision #3061
This is an appeal from a decision of the Immigration and Naturalization Service acting Regional Service Center ("RSC") director,
dated July 6, 1987, denying a visa petition filed by the petitioner on
behnlf of the beneficiary as his unmarried son under section
203(aXI) of the Immigration and Nationality Act, 8 U.S.C.
§ 1153(a)(1) (1982). Oral argument was beard before the Board on
November 5, 1987. The appeal will be sustained and the record will
be remanded to the RSC director.
The petitioner is a 63-year-old native of the Dominican Republic
and a citizen of the United States. He resides in New York. The
beneficiary is a 33-year-old native and citizen of the Dominican Republic. He is purported to be the son of the petitioner by a woman
the petitioner never married. The instant visa petition was filed on
the beneficiary's behalf on February 3, 1987.
In denying the visa petition, the acting RSC director noted that
to be classifiable as a son or daughter under section 203 of the Act,
a person must at some point have qualified as a child within the
meaning of section 101(bX1) of the Act,
8 U.S.C. § 1101(bX1) (1982). 1
Shetncoludahebficrynvqualedsthpitioner's legitimate or legitimated child, because the petitioner
never married the beneficiary's mother, and both New York and
the Dominican Republic require parents to marry in order to legitimate their child. See Matter of Bullen, 16 I&N Dec. 378 (3IA. 1977)
(New York); Matter of Reyes,
17 I&N Dec. 512 (BIA 1980) (Dominican Republic). She further found that the beneficiary could not
qualify as the petitioner's illegitimate child under the provisions of
section 101(b)(1)(D) of the Act, because the beneficiary was over 21
at the time the law changed to allow, under certain prescribed circumstances, petitions between illegitimate children and their fathers.
Section 101(bXl)(D) of the Act, as amended by the Immigration
Reform. and Control Act of 1986,
Pub. L. No. 99-603, 100 Stat. 3359,
provides as follows:
The terms "son" and "daughter" as used in section 203 are not defined in the
Act. However, since Congress, in amending section 101(bX1XD) of the Act, specifically required that a "parent-child relationship" with the father be shown (see discussion infra), we find that in order to qualify under that section, it must be shown
that the son or daughter once qualified as a child under section 101(bXl). Such a
requirement is also consistent with long-settled law regarding stepchildren under
section 101(b)(1)03) of the Act, legitimated children under section 101(b)(1XC), and
adopted children under section 101(bXIXE). See, e.g., Kaho v. Ilchert, 765 F.2d 877
(9th Cir. 1985); De Los Santos v. INS,
690 F.2d 56 (2d Cir. 1982); Lau v. Kiley,
568
F.2d 543 (2d Cir_ 1977); Matter of Coker,
14 I&N Dec. 521 (BIA 1974); Matter of Fagnerre,
13 I&N Dec. 688 (BIA 1971)_
Interim Decision #3061
(1) The term "child" means an unmarried person under twenty-one years of age
who is—
(D) an illegitimate child, by, through whom, or on whose behalf a status,
privilege, or benefit is sought by virtue of the relationship of the child to its
natural mother or to its natural father if the father has or had a Iona fide
parent-child relationship with the person....
Until November 6, 1986, when the Immigration Reform and Control Act became law, illegitimate children could only receive or
bestow immigration benefits through their natural mothers, not
their natural fathers.
As indicated above, the acting RSC director found that the beneficiary could not benefit from the change in the law because he was
over 21 at the time the change went into effect. On appeal, however, the Immigration and Naturalization Service, after lengthy internal debate, now agrees with the petitioner that section
101(bX1)(D), as amended, may be applied on behalf of persons who
turned 21 before the law went into effect, so long as paternity can
be established and there is a showing that a bona fide parent-child
relationship existed at the time the son or daughter was under 21
and unmarried. We agree that this is the correct application of the
,
law. The law as amended should apply to all petitions, such as the
present one, filed after the effective date of the statute, even where
the son or daughter was over 21 at the time the law went into
effect. Moreover, we find that the amended version of section
101(b)(1)(D) should apply to all immediate relative petitions filed
and pending at the time the law went into effect. 2 In all cases, it
must be shown that the parent-child relationship was established
when the son or daughter was unmarried and under 21 years of
age. Such a showing is necessary in order to satisfy the requirement that a son or daughter must once have met the definition of
"child," as discussed above.
This approach is not inconsistent with the line of cases holding
that where a country or a state eliminates all legal distinctions between legitimate and illegitimate children, persons born after the
effective date of the legislation are deemed legitimate children
under section 101(bX1)(A) of the Act, and persons born, and under
18 years of age, prior to the effective date are deemed to have been
legitimated by the change in law. Benefits for or through such persons may be had under section 101(b)(1XC) of the Act regarding legitimated children. See, e.g., Matter of Hernandez 19 I&N Dec. 14
2 Pursuant to Matter of Bardouale,
18 I&N Dec. 114 (BIA 1981), the nevi law will
not be applied to preference petitions which were filed before the effective date by
or on behalf of illegitimate children through their fathers. See also Matter of
Atembe, 19 I&11 Dec. 427 (BIA 1986); Matter of Drigo,
18 I&N Dec. 223 (BIA 1982).
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Interim Decision #3061
(BIA 1983), and cases cited therein. In those cases, the state and
foreign law changes had to be applied and examined under the unchanged provisions of the Immigration and Nationality Act. Because we have held that the change in the state or foreign law was
the act legitimating these persons, we have found them to be legitimated, not legitimate, children. We have therefore held that the legitimating act (the change in law) must have occurred prior to the
time the child reached the age of 18, as required by section
101(b)(1)(C). In the present situation, on the other hand, Congress
itself has changed the underlying statutory definition of an illegitimate child. Moreover, unlike section 101(bX1XC) of the Act, section
101(b)(1)(D), regarding illegitimate children, does not include an age
restriction. We therefore have no problem in applying the amended
law to any person, regardless of his or her age when the law went
into effect, who can establish that he or she once met the requirements for an illegitimate child.
Although the Service agrees that the new version of the law applies in this case, it is argued that the visa petition must still be
denied because the petitioner has not met his burden of establishing either paternity or a "bona fide parent•child relationship" as
required under the statute. The petitioner asserts that, since the
acting RSC director did not mention these issues in her decision, it
must be assumed that she considered these showings to have been
made. Alternatively, the petitioner contends that the evidence
clearly establishes both paternity and a bona fide parent-child relationship and that, accordingly, the Board should simply grant the
petition.
We reject the petitioner's contention that the acting RSC director's silence on these issues shows that she considered the matters
resolved, and in the petitioner's favor. Rather, it appears clear
that, finding a legal basis for denying the petition, the acting RSC
director simply did not reach the factual issues. Having reviewed
the record, we find a remand is necessary so that the RSC director
may fully consider all the evidence on this issue. On remand, the
petitioner will have the burden of establishing both that he is in
fact the beneficiary's biological father, and that he and the beneficiary had a bona fide parent-child relationship prior to the time
the beneficiary reached the age of 21.
The term "bona fide parent-child relationship" is new in the Act,
is not defined, and the legislative history is silent as to congressional intent regarding its meaning. The Service suggests that, as a
starting point in defining the term, we use the "active parental interest test" set forth in Matter of Moreira, 17 I&N Dec. 41 (MA
1979). In Matter of Moreira, we attempted to state what showing
Interim Decision #3061
was necessary to establish a steprelationship under section
101(b)(1)(B) of the Act. We held that where a child has not lived
with a stepparent, it must be shown that the stepparent had demonstrated "an active parental interest in the child's support, instruction, and general welfare."
Id. at 47; see also Matter of Moreira,
17 I&N Dec. 370 (BIA 1980). Subsequently, we retreated from
the Moreira decisions in steprelationship cases and adopted the
holding of the court in Palmer v. Reddy,
622 F.2d 468 (9th Cir.
1980), that because of the "unqualified language" of the stepchild
provision, no qualifications beyond a valid marriage creating the
steprelationship should be imposed. See Matter of McMillan,
17
I&N Dec. 605 (BIA 1981); Matter of Bonnet - te,
17 I&N Dec. 587 (BIA
1980).
Unlike the stepchild provision, section 101(b)(1)(D) of the Act, as
amended, does carry specific qualifying language. Since Congress
qualified the language, we must give some meaningful effect to it.
As noted, Congress has provided no guidance as to the intended
meaning of the phrase "bona fide parent child relationship," and
-
we shall not attempt a specific definition here. We emphasize, however, that the expansion of section 101(b)(1)(D) to include the illegitimate children of their fathers clearly was intended as a generous
provision, and it should therefore be generously interpreted. At the
same time, Congress did not intend to place fathers on an equal
basis with mothers, or it would not have required a "bona fide
parent-child relationship" only with regard to fathers.
It is obvious that Congress intended that more than mere paternity be required under the amendment. In_ keeping with the immigration_ laws' historical and ongoing concern with true family reunification, the key is the existence of a parent-child relationship
in fact, not merely a tie by blood. In assessing a relationship, some
evidence of emotional and/or financial ties should be shown. The
factfinders should look for proof that the parties at some point actually lived together, or that the father held out the child as his
own, or that he provided for some or all of the child's needs, or
that in_ general the father's behavior evidenced a genuine concern
for the child. The most persuasive evidence would be some sort of
documentary evidence which was contemporaneous with the events
in question, as opposed to, for example, affidavits or letters written
just before or after the visa petition was filed We recognize, however, that once parties are separated, barriers of distance, national
boundaries, immigration restrictions, and, sometimes, difficulties
with communications must be taken into account. Nevertheless,
there should be evidence of some attempt to help support the child
and/or some showing of communication with or about the child,
648
Interim Decision dt 3061
which evinces a genuine interest in the child. To require less would
be to ignore Congress' clear language. Beyond this very general
guidance, we believe the meaning of the term "bona fide parent-child relationship" is best left to be developed on a case-by-case
basis. We see no need to specifically adopt the "active parental interest" standard set forth in the decisions in Matter of Moreira,
supra.
For the reasons discussed above, the appeal will be sustained and
the record will be remanded to the RSC director for further proceedings consistent with the foregoing decision.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Regional
Service Center director for further proceedings consistent with the
foregoing opinion.
