ROWE

Cite as 

 (BIA 2006)                                Interim Decision #3536




                    In re Lawrence ROWE, Respondent
                           File A41 064 398 - Napanoch
                               Decided June 29, 2006
                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals

(1) Under the laws of Guyana, the sole means of legitimation of a child born out of wedlock
  is the marriage of the child’s natural parents. Matter of Goorahoo, 

 (BIA
  1994), overruled.

(2) Where the respondent was born out of wedlock in Guyana and his natural parents were
  never married, his paternity has not been established by legitimation, so he is not
  ineligible to obtain derivative citizenship under former section 321(a)(3) of the
  Immigration and Nationality Act, 

(a)(3) (1994).
FOR RESPONDENT: Thomas J. Mills, Esquire, New York, New York
BEFORE: Board Panel: COLE, FILPPU, and PAULEY, Board Members.
COLE, Board Member:

  The respondent has appealed the Immigration Judge’s May 31, 2005,
decision denying his motion to terminate removal proceedings based on his
claim of derivative citizenship under former section 321(a) of the Immigration
and Nationality Act, 

(a) (1994). The appeal will be sustained,
and the proceedings will be terminated.1
              I. FACTUAL AND PROCEDURAL HISTORY
  The respondent is a 30-year-old native and citizen of Guyana who was born
out of wedlock on September 19, 1975. The names of the respondent’s
mother and father appear on his birth certificate, but his parents never married.
The respondent was admitted to the United States as a lawful permanent
resident on August 16, 1986.
  On April 20, 1998, the respondent was convicted of the offense of attempted
criminal sale of a controlled substance in the third degree in New York. In
1
  We acknowledge receipt of the respondent’s motion to expedite and have done so to the
extent possible consistent with the regulation applicable to the issuance of precedent
decisions by the Board. 

(g) (2006).


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February 2005, removal proceedings were initiated, during which the
respondent claimed that he derived United States citizenship under former
section 321(a) of the Act. The Immigration Judge determined that because the
respondent was legitimated under the laws of Guyana, he could not meet the
requirements of former section 321(a) of the Act. The Immigration Judge
therefore concluded that the respondent failed to sustain his burden of
establishing his derivative citizenship.
  On appeal, the respondent argues that this case is governed by the reasoning
in Gorsira v. Loy, 

 (D. Conn. 2005), reconsidered
on other grounds sub nom. Gorsira v. Chertoff, 

 (D.
Conn. 2005). He therefore asserts that he was not legitimated under the laws
of Guyana and that he qualifies as a derivative citizen of the United States.
The Department of Homeland Security (“DHS”) did not file a brief on appeal.
                                       II. ISSUE
  The issue in this case is whether the respondent is entitled to derivative
citizenship because his paternity has not been established by legitimation
under Guyanese law, as required by former section 321(a)(3) of the Act.
                                   III. ANALYSIS
  The starting point of our analysis is former section 321(a) of the Act,2 which
provided in pertinent part as follows:
        A child born outside of the United States of alien parents . . . becomes a citizen of
      the United States upon fulfillment of the following conditions:
          (1) The naturalization of both parents; or
          (2) The naturalization of the surviving parent if one of the parents is deceased; or
          (3) The naturalization of the parent having legal custody of the child when there
        has been a legal separation of the parents or the naturalization of the mother if the
        child was born out of wedlock and the paternity of the child has not been
        established by legitimation; and if

2
   Section 321 of the Act was repealed by the Child Citizenship Act of 2000, 

(a), 

, 1632 (“CCA”). It appears that if the CCA applied
retroactively, the respondent would have attained citizenship under section 320 of the Act,

 (2000), which was also amended by the CCA. CCA § 101(a), 114 Stat. at
1631. But that section grants automatic citizenship only to those children who were under
the age of 18, and who met the other requisite criteria, on February 27, 2001, the effective
date of the CCA. See CCA § 104, 114 Stat. at 1633; see also Drakes v. Ashcroft, 

 (2d Cir. 2003); Matter of Rodriquez-Tejedor, 

 (BIA 2001).
Because the respondent was over the age of 18 on February 27, 2001, section 320 has no
application here, and he must rely on the now-repealed section 321.


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         (4) Such naturalization takes place while such child is under the age of eighteen
       years; and
         (5) Such child is residing in the United States pursuant to a lawful admission for
       permanent residence at the time of the naturalization of the parent last naturalized
       under clause (1) of this subsection, or the parent naturalized under clause (2) or (3)
       of this subsection, or thereafter begins to reside permanently in the United States
       while under the age of eighteen years.

Former section 321(a) of the Act (emphasis added).
  The respondent does not dispute that he was born in Guyana, and that he
must therefore adduce evidence to prove that he is a United States citizen. It
is undisputed that the respondent was born out of wedlock and that both his
admission to the United States as a lawful permanent resident and his mother’s
naturalization occurred prior to his 18th birthday, so he meets the conditions
set forth in sections 321(a)(4) and (5) of the Act. He therefore qualifies as a
citizen if he meets the requirements of either clause (1), (2), or (3).
  Clause (1) does not apply here because the record only indicates that the
respondent’s mother has been naturalized. The respondent does not contend
that clause (2) has any application to his case. He does, however, assert that
he acquired derivative citizenship under section 321(a)(3) of the Act because
he was born out of wedlock and his paternity was not established by
legitimation. Therefore, the dispositive question on appeal is whether the
respondent has proved that his paternity has not been established by
legitimation under the law of Guyana.
  In Matter of Gouveia, 

 (BIA 1970), a case involving a visa
petition proceeding, we considered whether acknowledgment of paternity
constituted legitimation under Guyanese law. The petitioner, who was
seeking immediate relative status for his son, contended that he had
legitimated his child for purposes of section 101(b)(1)(C) of the Act, 

(b)(1)(C) (1970), because his son was born in Guyana, he
acknowledged paternity of the child, and he was named on the beneficiary’s
birth certificate as the father. In our decision, we examined the laws of
Guyana, including the Legitimacy Ordinance of British Guiana and the
Registration of Births and Deaths Ordinance of October 1, 1968.3
  The Legitimacy Ordinance provided that
     where the parents of an illegitimate person marry or have married one another,
     whether before or after the commencement of this Ordinance, the marriage did or
     shall, if the father of the illegitimate person was or is at the date of the marriage


3
  We note that Guyana became an independent country in 1966 and that the Legitimacy
Ordinance under the laws of British Guiana subsequently became known as the Legitimacy
Act under the laws of Guyana. See Gorsira v. 

 at 494 app. (Law Library of
Congress memorandum).

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     domiciled in British Guiana, render that person, if he is or was living, legitimate from
     the date of marriage.

Legitimacy Ordinance, Laws of British Guiana, vol. IV, ch. 165, § 3(1)
(1932), quoted in Matter of Gouveia, supra, at 605. The Registration of
Births and Deaths Ordinance permitted entry of the father’s name on the birth
certificate if he acknowledged himself to be the father and the parents made
a joint request for such inclusion. We held that acknowledgment of a child
born out of wedlock did not, however, confer legitimate status on the child
because, under the laws of Guyana, the legitimation of a child required the
marriage of the father and mother.
  In Matter of Goorahoo, 

 (BIA 1994), we were asked to
clarify our decision in Matter of Gouveia, supra, in light of the Guyana
Children Born Out of Wedlock (Removal of Discrimination) Act 1983
(effective May 18, 1983) (“Removal of Discrimination Act”). In reaching our
decision, we relied on a memorandum opinion from a senior legal specialist
at the Law Library of Congress, which explained that the Removal of
Discrimination Act amended five preexisting laws in the following ways: it
replaced the terms “bastard” in the Evidence Act and “illegitimate person” in
the Legitimacy Act with the phrase “child born out of wedlock”; it broadened
the Maintenance Act to benefit a child born to unmarried parents; it amended
the Civil Law Act to allow a child born out of wedlock to inherit from the
father’s intestate estate; and it amended the Infants Act so that courts may
award custody of a child born out of wedlock to the father. Matter of
Goorahoo, supra, at 783.
  According to the memorandum, the purpose of the Removal of
Discrimination Act was to eliminate discrimination against children born out
of wedlock. Id. The memorandum therefore concluded that children born out
of wedlock in Guyana have rights equal to those of children born in wedlock.
Id. at 784. Based on the memorandum, we held that pursuant to the Removal
of Discrimination Act, Guyana eliminated all legal distinctions between
legitimate and illegitimate children. We also determined that all children born
out of wedlock after May 18, 1983, are considered legitimate and that those
under the age of 18 prior to that date are deemed to be the legitimated
offspring of their natural parents. Id. at 785.
  Deeming a child legitimate or legitimated generally benefits the child for
purposes of preference classification. However, a determination that accords
a benefit in visa petition proceedings may become a detriment under former
section 321(a)(3) of the Act because it requires an individual to show that his
paternity was not established by legitimation. Thus, where we have found that
all legal distinctions between children born in and out of wedlock have been
eliminated and that all children are accorded equal treatment under the laws,

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a child is deemed legitimate or legitimated for all purposes and must therefore
accept the concomitant benefits and detriments of the application of the law.
See Matter of Clahar, 

 (BIA 1981). For this reason, the
respondent must be deemed to be to have been legitimated under our holding
in Matter of Goorahoo, supra, unless we find that our decision was in error.
  The respondent contends that this case is not governed by Matter of
Goorahoo, supra, and that the issue before us has been thoroughly addressed
by the United States District Court for the District of Connecticut in Gorsira
v. 

 In Gorsira, the district court conducted a comprehensive
examination of Guyana’s Removal of Discrimination Act, the Infancy Act,
and the Legitimacy Act, as well as the Law Library of Congress memorandum
that we had relied on in Goorahoo.4 The court held that “the Legitimacy Act
continued to provide that marriage of the child’s parents was the sole means
of legitimation under Guyanese law” and that the Removal of Discrimination
Act did not “equate recognition of paternity with legitimation.” Gorsira v.

.
  The court first examined our holding in Matter of Goorahoo, supra, that
Guyana has eliminated all legal distinctions between legitimate and
illegitimate children and concluded that it was overly broad and unnecessary
to our decision. Gorsira v. 

. In reaching this conclusion,
the court observed that the Removal of Discrimination Act eliminated many
existing legal distinctions between legitimate and illegitimate children by
replacing the term “illegitimate” with “born out of wedlock” in several
statutes, and it amended particular acts to remove discriminatory provisions.
The court held, however, that the Removal of Discrimination Act did not
include “any broad provisions eliminating all distinctions between illegitimate
and legitimate children (or between children born in wedlock and out of
wedlock)” and noted that “the Law Library of Congress memorandum
concluded that the Act ‘does not attempt to generally abolish the legal
distinction between legitimate and illegitimate children.’” 

 (quoting Law
Library of Congress memorandum). Emphasizing that one significant
distinction remained after the enactment of the Removal of Discrimination
Act, i.e., that “a child born out of wedlock could only be legitimated through
the subsequent marriage of his parents,” the court concluded that the
Legitimacy Act was not amended to provide an alternative means of
legitimation. 

.
  Upon review of the laws of Guyana and the Law Library of Congress legal
memorandum attached to Gorsira v. Loy, we concur with the district court’s

4
  The Law Library of Congress memorandum was originally prepared in 1990 and was
updated in 2005. The 2005 updated memorandum is attached to the opinion in Gorsira v.

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reasoning that legitimation occurs under Guyanese law only when the natural
parents marry. The Removal of Discrimination Act did not expressly override
or amend the Legitimacy Act, which provides that the marriage of a child’s
parents is the sole means of legitimation under Guyanese law. Moreover, the
Law Library of Congress memorandum does not support the conclusion that
all children, whether or not legitimate, are to be accorded equal treatment for
all purposes. Therefore, we agree with the district court that under Guyanese
law, a child born out of wedlock may only be legitimated through the
subsequent marriage of his parents.
  We note that the court distinguished Matter of Goorahoo, supra, in that our
decision did not consider the effect of the Removal of Discrimination Act on
claims involving former section 321(a)(3) of the Act. As the court explained,
Matter of Goorahoo involved visa petition proceedings, which determine
whether a person qualifies as a “child” under section 101(b)(1) of the Act,

(b)(1) (2000), in furtherance of the goal of family
reunification. Gorsira v. 

. By contrast, Gorsira
involved the derivative citizenship statute at former section 321(a)(3) of the
Act, which reflects a different goal: the protection of parental rights.
  The use of the term “legitimation” in former section 321(a)(3) may not
technically be the same as that in section 101(b)(1), which we addressed in
Matter of Goorahoo, supra, when we considered the definition of a “child.”
However, we do not find it appropriate to distinguish its meaning in this case
from that in Goorahoo simply because it is used in different provisions of the
Act. Cf. Clark v. Martinez, 

 (2005). Therefore, we find that
Matter of Goorahoo, supra, must be overruled.
  We hold that the Legitimacy Act continues to provide that the marriage of
the parents of a child born out of wedlock is the sole means of legitimation
under Guyanese law. Because the respondent’s parents never married, we
agree that his paternity was not established through legitimation.
Consequently, we hold that the respondent derived United States citizenship
under former section 321(a)(3) upon the naturalization of his mother.
Accordingly, the respondent’s appeal will be sustained and the proceedings
against him will be terminated.
  ORDER: The appeal is sustained and the removal proceedings are
terminated.




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