Interim Decision #3294
Interim Decision #3294
In re Junior Jose CABRERA, Beneficiary
File A73 666 881 - Vermont Service Center
Decided September 13, 1996
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
A child born out of wedlock in the Dominican Republic is placed in the same legal position
as one born in wedlock once the child has been acknowledged by the father in accordance with
Dominican law and hence qualifies as a “legitimated” child under section 101(b)(1)(C) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(C) (1994). Matter of Reyes,
17 I&N
Dec. 512 (BIA 1980), overruled.
FOR PETITIONER: Pablo E. Polastri, Esquire, New York, New York
FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Thomas K. Ware, Service Center Counsel
BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA,
HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, ROSENBERG,
MATHON, and GUENDELSBERGER, Board Members.
VACCA, Board Member:
In a decision dated October 12, 1995, the district director denied the visa
petition filed by the petitioner to accord the beneficiary preference status as
his son pursuant to section 203(a)(2)(A) of the Immigration and Nationality
Act,
8 U.S.C. § 1153(a)(2)(A) (1994). The district director then certified this
decision to the Board for review, seeking clarification of our decision in Matter of Reyes,
17 I&N Dec. 512 (BIA 1980), in light of a change in the Dominican Republic law. 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 Oficial, Apr. 25, 1994 (enacted Apr. 22,
1994) (hereinafter Code for the Protection of Children). The district director’s decision will be reversed and the petitioner’s visa petition will be
approved.
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I. BACKGROUND
The petitioner is a 31-year-old native and citizen of the Dominican Republic who was admitted to the United States as a lawful permanent resident on
July 9, 1982. On November 2, 1990, he filed a visa petition on behalf of his
12-year-old son, who is also a native and citizen of the Dominican Republic.
This child was born out of wedlock to the petitioner and a woman he never
married.
In support of his visa petition, the petitioner submitted an extract of the
beneficiary’s birth certificate which indicates that he acknowledged the beneficiary as his son on August 28, 1989. The petitioner also submitted a legal
opinion from a foreign legal consultant in response to the district director’s
request for additional evidence. This opinion states that Dominican law on
parentage and filiation was changed in 1994 to eliminate all legal distinctions
between children born in wedlock and those born out of wedlock.
The change in Dominican law was also explained in a legal opinion which
the district director requested from the Library of Congress. This opinion
states that the Dominican Republic enacted the Code for the Protection of
Children in 1994. It further states that this law repealed all contradictory
laws, decrees, or dispositions and made the rights of children born in wedlock
identical to those of children born out of wedlock once parentage has been
established according to the legal procedures of the Dominican Republic.
The Library of Congress’ legal opinion goes on to explain that the law
took effect on January 1, 1995, and applies 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.” Based on this fact, the opinion concludes that the law applies to the
petitioner’s relationship with the beneficiary in the present case. The opinion
also finds that the petitioner established parentage under the laws of the
Dominican Republic when he acknowledged the beneficiary on August 28,
1989. The beneficiary therefore currently enjoys the same rights and privileges in the Dominican Republic as a child born in wedlock.
Despite the above information, the district director denied the petitioner’s
visa petition. He concluded that he was bound to follow our decision in Matter of Reyes, supra, in which we found that the legitimation of a child born
out of wedlock in the Dominican Republic required the marriage of the
child’s natural parents. Since the beneficiary’s parents had never married, the
district director found that he did not qualify as a child legitimated under the
laws of his residence or domicile, as required by section 101(b)(1)(C) of the
Act, 8 U.S.C. § 1101(b)(1)(C) (1994). The district director therefore ruled
that the beneficiary was not qualified for preference classification under section 203(a)(2)(A) of the Act, but he certified his decision to the Board for
review in light of the Dominican Republic’s recent change in law. Both the
Immigration and Naturalization Service and the petitioner have submitted
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briefs asking the Board to overrule the district director’s decision and to
revise our holding in Matter of Reyes, supra.
II. ANALYSIS
In visa petition proceedings, the burden of establishing the claimed relationship is on the petitioner. Matter of Brantigan, 11 I&N Dec. 493 (BIA
1966). The petitioner must prove by a preponderance of the evidence that the
beneficiary is fully qualified for the preference classification sought under
section 203(a) of the Act. Matter of Patel,
19 I&N Dec. 774 (BIA 1988);
Matter of Soo Hoo,
11 I&N Dec. 151 (BIA 1965).
In the present case, the petitioner has filed a visa petition on behalf of the
beneficiary under section 203(a)(2)(A) of the Act. He must therefore prove
that the beneficiary meets the definition of a “child” as set forth in section
101(b)(1) of the Act.
According to section 101(b)(1)(C), a person may qualify as a “child” for
immigration purposes if he or she is “an unmarried person under twenty-one
years of age who is . . . a child legitimated under the law of the child’s residence or domicile . . . 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.”
The extract of the beneficiary’s birth certificate clearly demonstrates that
he is under 21 years of age. This document also shows that the petitioner
acknowledged the beneficiary as his son on August 28, 1989. The sole issue,
then, is whether this acknowledgement constitutes legitimation “under the
laws of the child’s residence or domicile” for purposes of section
101(b)(1)(C) of the Act.
In prior precedent decisions, we have defined legitimation as the act of
putting a child born out of wedlock in the same legal position as a child born
in wedlock. See, e.g., Matter of Reyes, supra, at 514. “Where less than equality of status results, an act of legitimation is not deemed to have occurred.” Id.
More specifically, we have held that a child acknowledged under the laws of
the Dominican Republic does not qualify as a legitimated child for purposes
of section 101(b)(1)(C) of the Act because he does not enjoy the same legal
status as a child born in wedlock. Id. at 515. We now conclude that this holding is incorrect due to the enactment of the Code for the Protection of
Children in the Dominican Republic on April 22, 1994, and, accordingly, we
overrule Matter of Reyes. Under this law, a child born out of wedlock is
placed in the same legal position as one born in wedlock once parentage is
established according to the legal procedures of the Dominican Republic.
See Code for the Protection of Children, supra, arts. 14, 21.1 Thus, a child
1 Article 14 of the Code for the Protection of Children states that “[a]ll sons and daughters,
regardless of whether they are born within a consensual relationship, or a marriage or adopted,
will enjoy equal rights and privileges, including those relating to inheritance and succession.”
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residing or domiciled in the Dominican Republic may qualify as a legitimated child under section 101(b)(1)(C) as soon as his father acknowledges
paternity in accordance with Dominican law. Id.
Based on the foregoing, we conclude that the beneficiary in the present
case has been legitimated under the law of his residence or domicile prior to
reaching the age of 18, as required by section 101(b)(1)(C) of the Act. We
also find that he has met the legal custody requirement of section
101(b)(1)(C), as interpreted in Matter of Rivers, 17 I&N Dec. 419 (BIA
1980)(holding that a natural father is presumed to have legal custody of his
child at the time of legitimation in the absence of affirmative evidence indicating otherwise). In light of this finding we rule that the beneficiary qualifies
as a child under section 101(b)(1)(C) of the Act and that he is eligible for
preference classification under section 203(a)(2)(A) of the Act. The district
director’s decision will therefore be reversed and the petitioner’s visa petition will be approved.
ORDER: The decision of the district director is reversed and the
visa petition is approved.
See Code for the Protection of Children, supra, art. 14. Article 21 of the same law, which
relates to proof of filiation, states that "[s]ons and daughters born out of wedlock may be
acknowledged individually by their father either when the birth occurs, or by means of a will, or
by a public instrument." Id. art. 21.
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