C

                              Marrkn or C-

                  ID. VISA PETITION Proceedings
                                A-11760526
                    Decided by Board April 21, 1961
Illegitimate child—Portugal—Mere acknowledgment by natural father insufficient to constitute legitimation or adoption.
(1) Under Portuguese law "pertilhacao" or acknowledgment of a child born
  out of wedlock unaccompanied by the marriage of the natural parents does
  not result in 'legitimation (Matter of F— , 7 118). Nor does it constitute
   the equivalent of legal adoption which is no longer authorized in Portugal
   (cf. Matter of P— , 8-527).
(2) Massachusetts adoption decree obtained by petitioner (natural father)
   for 17-year-old illegitimate son fails to qualify latter as ''child" within
  meaning of section 101(b) (1) (E) of 1952 Act in view of requirement that
  adoption must take place while child is under the age of 14.

                          BEFORE THE BOARD

   DISCUSSION: The petitioner, a native of Portugal, a naturalized
citizen of the United States, 66 years old, male, has filed a petition to classify the status of the beneficiary for issuance of a nonquota or preference quota visa. The beneficiary, a native and citizen
of Portugal, 16 years old, male, is alleged to be the adopted son
of the petitioner. The visa petition was denied by the District
Director, Boston District, by order dated April 1, 1960, for the
reason that the petitioner adopted his son on January 8, 1960,
when he was 17 years of age; that since he was not adopted while
under the age of 14 years, he did not qualify as a "child" under
section 101(b) (1) (E) of the Immigration and Nationality Act;
that since he has not been legitimated, the beneficiary does not
qualify as a "child" under section 101(b) (1) (C) of the Act. We
originally considered this appeal from the order of denial on May 26,
1960, and in view of certain contentions raised by counsel, the case
was remanded for the introduction into e, Menne of              a purported
1955 Portuguese adoption decree; for the record to reflect whether
the beneficiary thereafter resided with the adoptive father; and that
consideration should be given to the question of whether there was
such an adoption as to qualify the beneficiary as an adopted child;
alternatively, it was directed that consideration should be given
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to the question of whether the petitioner's Maccaehusetts adoption
of the beneficiary resulted in the latter's legitimation under the
laws of that jurisdiction or rendered it possible for him to be
legitimated thereunder prior to attaining the age of 18 years on
July 4, 1960.
   The case is before us from the order of the District Director,
Boston District, entered January 3, 1961, in which the petition was
again denied for the reason that it lies not been established that
the beneficiary can qualify as a child of the petitioner under any
of the provisions of section 101(b) (1) of the Immigration and Nationality Act and is, therefore, not entitled to nonquota status under
the provisions of section 101(a) (27) (A) of the same Act. The
denial is accompanied by a comprehensive memorandum of decision
reflecting consideration and application of the law of Portugal and
of the law of Massachusetts in determining the beneficiary's status.
We deem it appropriate to summarize the facts and restate the rea
sons for denial of the visa petition.
  The record establishes that the beneficiary is the natural on of
 the petitioner and was born out of wedlock in Portugal on July 4,
 1942. The petitioner and the mother of the beneficiary never subsequently intermarried. The birth certificate of the beneficiary
 contains a notation thereon that the petitioner recognized the beneficiary as his son on August 4, 1955, in accordance with a procedure
 known as perfilhaea-o, and the testimony of the petitioner is confirmatory. The only other legal step taken by the petitioner with regard to the beneficiary was the adoption of the beneficiary by the
 petitioner by decree of the Probate Court, Bristol County, New
Bedford, Massachusetts, on January 8, 1960, when the beneficiary
was over 17 years of age.
   The memorandum decision of the District Director contains extracts of the provisions of the Civil Code of Portugal as well as
extracts from legal authorities in Portugal relating to legitimation, adoption end perfilhaecto (acknowledgment or recognition).
Under Article 119 of the Portuguese Civil Code, a child born out of
wedlock may be legitimated by the intermarriage of the parents
 (1) if said children are acknowledged (perfulhado) by the parents
in the marriage record; or a record of acknowledgment is made in the
birth certificate of the child, or in a will Or public (notarial) document, either prior or subsequent to the marriage; or (2) if the
children can prove their filiation through a judicial action and
judgment. The effects of legitimation commence, in any case, from
the date of the marriage. Since there has been no intermarriage of
the natural parents of the beneficiary, it follows that mere acknowledgment without such marriage does not result in the legitimation
of the beneficiary (Matter of P' , 7 118).

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    The memorandum of decision sets forth information supplied by
 the Foreign Law Section of the Libra ry of Congress regardine. Ole
 effect of perfilhacao or acknowledgment. Our order in Hatler
 F—, supra, sets forth the pertinent provisions of the Portuguese Civil
 Code regarding legitimation and filiation. Article 122 covers the
 details of acknowledgment and, in summary, provides that e-, en adolterine offspring may under certain circumstances be acknowledged in
 either a "secret" record in the Civil Register or openly with permission of the wife who is not the mother, and this gives the child
 testamentary rights and some status. Even legitimation may he possible if the marriage with the other party is dissolved and intermarriage of the parents takes place. Only incestuous children are
denied the benefits of acknowledgment. Perfilhaotro, often erroneously translated by the layman as "adoption", is defined as signifying voluntary acknowledgment of a child, that is, an express declaration made by a man or woman to the effect that a certain
individual is his or her child. Judicial perfilhacao is filiation decreed by court judgment. The process of perfilhacao, unaccompanied
by a marriage entered into by the parents after the birth, carries
certain rights for the child, but is not equal to legitimation rights.
   It, therefore, appears that the perffihaeao or acknowledgment of
a child in Portugal on August 4, 1955, without' the intermarriage of
the natural parents, did not constitute a legitimation of the beneficiary but merely gave him a status of a recognized child which
carried with it certain rights of inheritance and support. Nor does
perfilhacao or acknowledgment constitute adoption under Portuguese
law. The memorandum of law supplied by the Library of Congress
indicates that at present there is no adoption procedure available in
Portugal.' The status of filiation through acknowledgment or perfilhacao can no longer be equated with adoption. 2
   Evidence has been submitted that the beneficiary was adopted by
the petitioner by decree of the Probate Court, Bristol County, New
Bedford, Massachusetts, on January 8, 1960. The beneficiary was
then 17 years of age and this adoption fails to meet the requirement of section 101(b) (1) (E) that for immigration purposes a child
must be adopted while under the age of 14 years. Chapter 190,
section 7, of the Massachusetts General Laws provides that an illegitimate child whose parents have intermarried and whose father has
acknowledged him as his child shall be deemed legitimate to the
SMITMA extent, as if horn in lawful wedlnek_ This provision of Massa-



  1 Reference is made in the memorandum to a work by Dr. Goncalves, Direitos de familia e direitos das sucessoes, Lisbon, 1955, p. 296, which mentions
that the'Civil Code entirely abolished adoption and that its practice, through
mere sentiment, does not produce legal effects inherent to filiation.
  'Matter of P—, 8-537.
chusetis law is similar to the pro -, sim of Portuguese law In that in
each case intermarriage of the natural parents is required!!
   The conclusion is, th:arefore, reached that the beneficiary, the illegitimate child of the 'petitioner, has never been legitimated under
Poriu:zuese nor Massachusetts law; that he has never been adopted
under Fortugnase law; and that he does not qualify as a child
because when he was adopted in Massachusetts he was over the age
of 14 years. lie, therefore, does not qualify as a child for immigration purposes and is not eligible for either nonquota or preference
quota status. The appeal will be dismissed.
   ORDER: It is ordered that the appeal be and the same is hereby
dismi ssed.

   3 I n the case of Lopc,z; v. Downey,  884 Mans. 161, 181 N.E.2d - 181 (1050),
In which the claimants set forth that through their affiliation or acknowledgment r perfilhacao) by their father in Portugal they acquired inheritance
rights In Massachusetts as legitimate children of the deceased, the court stated
cult              a great difference between a etatute which enabled a natirral
child, when recognized by his parents, to inherit as a recognized' natural child
and a statute which legitimizes such a child; that the former is limited to
controlling the inheritance of property in that country and has no extraterritorial effect upon the devolution of property located in Massachusetts.




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