MARTINEZ

                                                                     Interim Decision #3329




  In re Margarita MARTINEZ-Gonzalez, Beneficiary of visa
      petition filed by Julian Martinez Minier, Petitioner
                   File A73 599 459 - Vermont Service Center

                             Decided September 24, 1997

                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals

(1) A child legitimated under the laws of his or her residence or domicile may only be included
  within the definition of the term “child” provided in section 101(b)(1)(C) of the Immigration
  and Nationality Act, 

(b)(1)(C) (1994), if the legitimizing act occurred prior
  to the child’s 18th birthday.
(2) In order to qualify as a legitimated child under section 101(b)(1)(C) of the Act, a child
  residing or domiciled in the Dominican Republic must have been under the age of 18 at the
  time the new law regarding legitimation took effect and must have been acknowledged by
  his or her father prior to her 18th birthday, unless he or she was legitimated under the former
  laws of that country.

Pro se

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Thomas K. Ware, Service Center Counsel

BEFORE: Board Panel: HEILMAN, COLE, and MATHON, Board Members

HEILMAN, Board Member:

   In a decision dated July 16, 1996, the Regional Service Center (“RSC”)
director denied the visa petition filed by the petitioner to accord the beneficiary preference status as his legitimated daughter under section
203(a)(2)(B) of the Immigration and Nationality Act, 

(a)(2)(B) (1994). The petitioner has appealed from this decision. The
appeal will be dismissed.

                                  I. BACKGROUND
   A 73-year-old native and citizen of the Dominican Republic, the petitioner
became a lawful permanent resident of the United States on May 29, 1994.
On April 26, 1995, he filed a visa petition on behalf of his daughter, the beneficiary. The beneficiary was born on January 26, 1962, and is a citizen of the

                                             1035
Interim Decision #3329


Dominican Republic. The record indicates that the beneficiary currently
resides in Puerto Rico.
   In support of his petition, the petitioner submitted a copy of his alien registration receipt card, a certified and translated birth certificate and baptismal
certificate for the beneficiary, a letter from the school the beneficiary
attended between 1990 and 1991, a vaccine register pertaining to the beneficiary, an affidavit pertaining to the birth of the beneficiary, and a certified and
translated copy of his own birth certificate.1 After reviewing this evidence,
the RSC director determined that the petitioner had failed to demonstrate that
the beneficiary had at any time qualified as his “child” under section
101(b)(1) of the Act, 

(b)(1) (1994), and denied his visa petition on this basis. The petitioner has appealed from this decision and has submitted an affidavit in support of his appeal. The affidavit is signed by seven
individuals who know the petitioner personally and who attest to the fact that
he is the father of the beneficiary.

                                     II. ANALYSIS
   In visa petition proceedings, the burden is on the petitioner to establish the
claimed relationship. Matter of Brantigan, 

 (BIA 1966). The
petitioner must prove by a preponderance of evidence that the beneficiary is
fully qualified for the benefit sought. Matter of Patel, 

 (BIA
1988); Matter of Soo Hoo, 

 (BIA 1965).
   In the present case, the petitioner has filed a visa petition on behalf of the
beneficiary under section 203(a)(2)(B) of the Act. This section of the Act
allows a lawful permanent resident of the United States to obtain a visa for his
unmarried son or daughter if the son or daughter once qualified as the petitioner’s “child” under section 101(b) of the Act. See Matter of Vizcaino, 

 (BIA 1988); Matter of Coker, 

 (BIA 1974).
The relevant portion of section 101(b)(1) of the Act provides as follows:
   The term “child” means an unmarried person under twenty-one years of
age who is—
   (A) a child born in wedlock;
   (B) a stepchild, whether or not born out of wedlock, provided the child has not reached the
   age of eighteen years at the time the marriage creating the status of stepchild occurred;
   (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



  1 We note that it is difficult to determine whether the petitioner submitted this evidence with

his visa petition or in response to the RSC director’s February 29, 1996, request for additional
information. The RSC director’s request notified the petitioner that he had to establish that he
and the beneficiary had a bona fide parent-child relationship in order to meet his burden of
proof with respect to his visa petition. The request also described the type of evidence the
petitioner could provide to satisfy this requirement.

                                             1036
                                                                        Interim Decision #3329

   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;
   (D) a child born out of wedlock, 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 bona fide parent-child relationship with the person.
   The evidence of record contains no indication that the petitioner is or was
ever married to the mother of the beneficiary. The beneficiary therefore never
qualified as the petitioner’s child under sections 101(b)(1)(A) or (B) of the
Act, and the petitioner must instead demonstrate that she qualified as his
child under sections 101(b)(1)(C) or (D) of the Act at one time.

               A. Qualification as a Legitimated Child Under
                     Section 101(b)(1)(C) of the Act
   To have qualified as the petitioner’s child under section 101(b)(1)(C) of
the Act, the beneficiary must have satisfied three basic requirements: (1) she
must have been legitimated under the laws of her residence or domicile or
that of her father; (2) this legitimation must have taken place before she
reached the age of 18; and (3) she must have been in the legal custody of her
father at the time of the legitimation. In addition, as we ruled in Matter of
Bueno, 

 (BIA 1997), she must be the petitioner’s natural
child.
   In the present case, the petitioner has submitted ample proof to establish
that the beneficiary is his natural child. He has provided a certified and translated copy of the beneficiary’s birth certificate, which indicates that the birth
was registered in the same year that it occurred, and which identifies him as
the father of the beneficiary. He has also presented a baptismal certificate
identifying him as the beneficiary’s father and a letter from the beneficiary’s
school, which refers to him in the same manner. Finally, he has provided an
affidavit from seven individuals who know him personally and who attest to
the fact that the beneficiary is his daughter. In light of this convincing proof,
we must conclude that the petitioner has satisfied the paternity requirement
of section 101(b)(1)(C) of the Act.
   The key issues to be resolved, then, are whether the beneficiary was legitimated under the laws of her residence or domicile or that of her father,2


  2 We note that the petitioner and the beneficiary appear to be residents of Puerto Rico at the

present time, but no claim has been made that the beneficiary has been legitimated under Puerto
Rican law. In addition, there is no evidence of record to establish this fact. In particular, the
petitioner has presented no information to show that he was a Puerto Rican resident while the
beneficiary was under 18, a fact that must be established before the beneficiary may qualify as a
child legitimated under the laws of her father’s residence or domicile. See 

(d)(2)(ii) (1997). Given these facts, we will examine only whether the beneficiary has
been legitimated under the laws of the Dominican Republic and whether this legitimation has
met the requirements of our immigration laws.

                                              1037
Interim Decision #3329


whether this legitimation occurred before she reached the age of 18, and
whether she was in her father’s legal custody at the time of legitimation.
    In prior decisions, we have defined legitimation as the act of placing a
child born out of wedlock in the same legal position as a child born in wedlock. See Matter of Reyes, 

 (BIA 1980). We have also
held that, in the Dominican Republic, the act of acknowledging paternity in
accordance with Dominican law constitutes legitimation for immigration
purposes. See Matter of Cabrera, 

 (BIA 1996). This holding
was based on the enactment of Ley No. 14-19 que crea el Codigo para la
Proteccion de Ninos, Ninas y Adolescentes [Law No. 14-94, Code for the
Protection of Children and Adolescents] Gaceta Official, Apr. 25, 1994
(enacted Apr. 22, 1994)(hereinafter Code for the Protection of Children), in
the Dominican Republic on April 22, 1994. The Code for the Protection of
Children changed the Dominican law on parentage and filiation to eliminate
all legal distinctions between children born in wedlock and those born out of
wedlock. The law took effect on January 1, 1995, and was intended to apply
to all “‘present and future legal situations’ and to ‘legal situations that were
established and created before the promulgation of the . . . law and continue
in existence after such promulgation.’” Matter of Cabrera, supra, at 590
(quoting a Library of Congress legal opinion).
    When a country eliminates all legal distinctions between children born in
wedlock and those born out of wedlock, as the Dominican Republic has done
with the enactment of the Code for the Protection of Children, we have held
that all children born out of wedlock are deemed to be the legitimate or legitimated children of their natural fathers from the time that the country’s laws
are changed.3 See Matter of Hernandez, 

 (BIA 1983); Matter
of Clarke, 

 (BIA 1983). However, such children may only
be included within the definition of the term “child” provided in section
101(b)(1)(C) of the Act if the parent-child relationship is established by the
requisite degree of proof and the legitimizing act occurred prior to the child’s
18th birthday. See section 101(b)(1)(C) of the Act; Matter of Hernandez,
supra. The legitimizing act in the case of Dominican law could be either the
change in the law itself or the acknowledgment of paternity. See Matter of
Cabrera, supra. Both events are required to accomplish legitimation, and,
therefore, both events must have occurred prior to a child’s 18th birthday in

  3 We note that, in prior decisions, we have been careful to distinguish between children who

qualify as legitimate and those who qualify as legitimated due to a change in law. This
distinction is no longer relevant in this context, however, due to the change in the language of
section 101(b)(1) of the Act. Section 101(b)(1) no longer refers to legitimate children; it refers
only to children born in wedlock, children legitimated under the laws of their residence or
domicile or their father’s residence or domicile, and children born out of wedlock. Given this
change, all children born out of wedlock in countries with no legal distinctions between
legitimate and illegitimate children must be classified as legitimated children for immigration
purposes.

                                             1038
                                                                    Interim Decision #3329


order for the child to meet the requirements of section 101(b)(1)(C). See Matter of Hernandez, supra; 

(d)(2)(ii) (1997). Children who
were acknowledged after their 18th birthday or who turned 18 prior to January 1, 1995, the effective date of the Code for the Protection of Children, and
who were not legitimated under the former Dominican law, cannot meet
these requirements.
   In the present case, the petitioner turned 18 on January 26, 1980. She had
not been legitimated under the former law of the Dominican Republic, and
she turned 18 prior to the enactment of the new law. Given this fact, she was
not legitimated under the laws of the Dominican Republic prior to her 18th
birthday and she cannot qualify as a legitimated child under section
101(b)(1)(C). As such, she is ineligible for preference status as the petitioner’s legitimated daughter under section 203(a)(2)(B) of the Act, and we
need not address whether she has satisfied the other requirements of section
101(b)(1)(C).

  B. Qualification as a Child Born Out of Wedlock Under Section
                            101(b)(1)(D)
   Having concluded that the beneficiary cannot qualify for preference status
as the petitioner’s legitimated daughter, we must now consider whether the
petitioner has presented enough proof to establish that she, at one time, qualified as his daughter born out of wedlock under section 101(b)(1)(D) of the
Act. To meet the requirements of this section, the beneficiary must be the natural daughter of the petitioner and must have established a bona fide parent-child relationship with the petitioner when she was unmarried and under
the age of 21. Matter of Vizcaino, 

 (BIA 1988).
   According to the regulations, “[e]vidence of a parent/child relationship
should establish more than merely a biological relationship.” 

(d)(2)(iii). “Emotional and/or financial ties or a genuine concern and
interest by the father for the child’s support, instruction, and general welfare
must be shown.” Id.; see also Matter of Pineda, 

 (BIA 1989).
The regulations also state the following:
   The most persuasive evidence for establishing a bona fide parent/child relationship and
   financial responsibility by the father is documentary evidence which was contemporaneous
   with the events in question. Such evidence may include, but is not limited to: money order
   receipts or cancelled checks showing the father’s financial support of the beneficiary; the
   father’s income tax returns; the father’s medical or insurance records which include the beneficiary as a dependent; school records for the beneficiary; correspondence between the parties; or notarized affidavits of friends, neighbors, school officials, or other associates
   knowledgeable about the relationship.

(d)(2)(iii).
   As we noted above, the petitioner has presented ample proof to establish
that the beneficiary is his natural daughter. Nevertheless, we find that he has
failed to present enough evidence to demonstrate that he and the beneficiary

                                            1039
Interim Decision #3329


had a bona fide parent-child relationship prior to her 21st birthday. See, e.g.,
Matter of Pineda, supra; Matter of Vizcaino, supra. The petitioner has presented birth and baptismal certificates and an affidavit regarding the beneficiary’s birth, but these documents do not show that the petitioner took a
genuine interest in the beneficiary’s “support, instruction, and general welfare” while she was under the age of 21. 

(d)(2)(iii). The affidavit from the seven individuals who know the petitioner personally also
fails to speak to the nature of the relationship between the parties. The letter
from the beneficiary’s school does indicate that the petitioner took an interest
in the beneficiary’s education, but it refers to a time period after the beneficiary’s 21st birthday. Given these facts, we cannot find that the petitioner has
met his burden of showing that he and the beneficiary shared a bona fide parent-child relationship, and we cannot grant the beneficiary preference status
as his daughter under section 101(b)(1)(D) of the Act.

                            III. CONCLUSION
   In light of the foregoing, we will dismiss the petitioner’s appeal. We note,
however, that the petitioner may file a new visa petition on behalf of the beneficiary should he hereafter be able to produce additional, probative evidence
showing that a bona fide parent-child relationship existed between the parties
prior to the beneficiary’s 21st birthday.
   ORDER:            The appeal is dismissed.




                                     1040