C

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                               M.A1TER OF C—
                   In VISA PETITION Proceedings
                                    A-11695615
                      Decided by Board May 17 , 1961
Legitimation—Michigan—Acknowledgment by natural father.
 (1) Child burn out or weaiock In Italy is not legitimated either under Italian
   or Michigan law by natural father's "Act of Acknowledgment" executed before Italian Vice Consul In Detroit, Michigan, and recorded in a public
   office in Italy.
 (2) Under N.11thlgau law, the rather may legitimate nis cmici at any time IV
   acknowledging paternity in a written instrument executed in the same manner as provided for deeds of real estate (before two witnesses) and by
   recording the instrument in the probate office of the county where the
  father has his legal residence.

                           BEFORE THE BOARD
   DISCUSSION: This appeal comes forward from decision of the
District Director, Detroit, Michigan, on March 23, 1961, denying
a visa petition on the ground that the beneficiary, born out of wedlock in Italy on June 30, 1946, has not been legitimated by the
petitioner and is ineligible for nonquota status pursuant to section
101(a) (27) (A) of the Immigration and Nationality Act. In other
words, since the beneficiary has not been legitimated, the petitioner
cannot meet the requirements of section 101(b) (1) (C) of the Immigration and Nationality Act, that is, he cannot establish the required
relationship of "parent" and "child" within the section of law last
mentioned.'
  1 Section 101(b) (1) (C) and section 101(b) (2) of the Immigration and Na-

tionality Act read:
   (b) As used in titles I and II—
   (1) The term "child" means au unmarried person under twenty-one years
of age who is--
     •          •                                                        •
   (C) a child legitimated under the law of the chil d's residence or domicile,
or under the law or the rattlers residence or domicile, whether in or outside
the -United States, 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.
                                               •          •           •
   (2) The terms "parent", "father", or "mother" mean a parent, father, or
mother only where the relationship exists by reason of any of the circumstances set forth In (1) above.
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   Petitioner, in his exceptions (Form I 290A), states that the mother
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of the beneficiary died November 26, 1960; that he acknowledged
paternity of the beneficiary on June 30, 1952; and that he has
supported said child since his birth on June 30, 1946, and desires
to bring him to the United States for permanent residence.
   The brief record submitted contains very little evidence. It is
composed of the petition filed March 3, 1961, and three principal
docuinents. We do not know when petitioner came to the United
States or whether he was in Italy in 1945, or subsequent thereto.
He, a native of Italy, naturalized citizen of the United States (certificate No. 7653568, June 5, 1956), sets forth that the beneficiary
was born in Italy on June 30, 1946, out of wedlock, and is presently
residing in Italy. The translated documents attached to the petition are : an Act of Acknowledgment of natural son by petitioner
on June 30, 1952, before the. Vice Consul of Italy in Detroit, Michigan; an amended birth certificate of the beneficiary from the Register
of Civil Status at Zoppola, Udine, Italy, where the Act of Acknowledgment was recorded August 22, 1952; also, certificate showing the
death of Z-0—, single, on November 26, 1960, at Zoppola, Italy.
   It appears that the original birth certificate of this beneficiary
was recorded in the Office of Civil Status at Zoppola, Province of
Udine, Italy, under the name Z—G--M—; mother, Z-0—; and
fatehr, unknown. The Act of Acknowledgment shows that on June
30, 1952, the petitioner appeared before the Vice Consul of Italy at
Detroit, Michigan, the place of his domicile, accompanied by his
spouse, and declared and acknowledged pursuant to all the effects
of law that G—M— born to 0—, mother, and unknown father, is his
natural son. The petitioner's spouse consented to the acknowledgment. The document was signed by the petitioner and his
spouse, and it appears that the petitioner and his spouse may have
acknowledged their signatures in the presence of the notary public
in the office of the Vice Consul.
  It appears that thereafter, on August 22, 1952, the petitioner
caused the document to be recorded at Zoppola, Province of Udine,
Italy, in the Office of Civil Status, with the name of the beneficiary changed from Z—G—M— to C—G—M—, and the record was
noted to show that he had acknowledged the child as the natural son of
A C  —    (petitioner), domiciled in Detroit, Michigan. On February 16, 1961, a copy of birth certificate of C—G—M—, as amended,
was issued from the Civil Status Register for use of migration and
work.
  The issue to be resolved is whether the beneficiary herein, who
was age 6 years at the time the petitioner executed the Act of Acknowledgment in Detroit, Michigan, on June 30, 1952, and is now
age 14 years, was legitimated under the law of the child's residence

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or domicile (Italy) ; or under the law of the father's residence or
domicile (the State of Michigan). The burden is upon the petitioner. The District Director has considered the residence or domicile of the beneficiary only, and has made a negative finding.
   We will consider the domicile or residence of the child first. We
find that the act of the petitioner in recognizing or acknowledging
the beneficiary as his child does not constitute legitimation of the
child under Italian law (Article 277, Italian Civil Code of 1942,
and procedure), in all respects. The question has been adjudicated
previously. We have held that recognition or acknowledgment of
a child born out of wedlock in Italy, under Italian law and procedure, does not confer on the child the attributes of "legitimation"
as that term is used in section 101(b) (1) (C) of the Immigration
and Nationality Act (Matter of D—, 7-438 (B.I.A., 1957) ). Under
Article 280, Italian Civil Code of 1948, a child born out of wedlock
in Italy may be legitimated by the marriage of the natural parents
to each other, or by royal or presidential decree (Matter of D—M—,
7--441 (B.I.A., 1957)). There is no evidence before us of intermarriage of the parents or of royal or presidential decree.
   This petitioner may have intended to legitimate his son in the
jurisdiction of his residence or domicile. The District Director has
made no finding in this regard. The statutory procedure in Michigan is set forth in section 27.3178(153), Vol. 23, Michigan Statutes
Annotated (Public Acts 1941, No. 347, as amended by Public Acts
of 1951, No. 7, 1959 Cumulative Supplement), as follows:
    LEGITIMATION BY ACKNOWLEDGMENT.                 When after the birth of an
 illegitimate child, his parents shall intermarry, or without such marriage, if
the father and mother shall, by writing under their hands, acknowledge such
child as the child of the man, such child shall be considered legitimate for all
intents and purposes: Provided, That it shall not be necessary for the mother
of such child to join in such acknowledgment in case she is disqualified to
act by reason of insanity, mental incapacity, death, or If for any other reason satisfactory to the probate judge of such county, it is not practical for
her to join in such acknowledgment. The failure of the mother of such child
to join in any acknowledgment filed in accordance with the provisions of this
section shall not invalidate or otherwise affect the same: Provided further,
That such acknowledgment shall be executed and acknowledged in the same
manner as may he by law provided for the execution and acknowledgment of
deeds of real estate, and be recorded In the office of the judge of probate of
the county in which such father or mother of such child is at the time
resident: Provided further, That if such acknowledgment is erroneously filed
in any other public office, the filing of a certified copy of such acknowledgment
In accordance with the provisions of this section, at any time, shall be deemed
a compliance with the requirements hereof.

 Apparently the statute just quoted does not specify an age limit
within which a father may acknowledge the paternity of (or legitimate) his child. The statute does provide that when paternity of

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an illegitimate child has been acknowledged by written instrument,
the statute becomes operative only upon performance of two conditions precedent, (1) execution of acknowledgment of instrument in
the same manner as provided for deeds of real estate (before two
witnesses), and (2) recording. It has been held that where the
signature of a decedent father was not witnessed by two persons, by
their signatures, in the form required for deeds for real estate,
the statute was inoperative to give right of inheritance, and for
other purposes (Chasson v. Estate of Stewart, 

; 

 (1947) (Supreme Court, Michigan)). The statute above
quoted, when fully complied with, has been construed so that, in
effect, an acknowledgment makes the county which is the legal residence of the father (petitioner) the legal residence of the legitimized child, and quell acknowledgment and its effect, with respect
to legal residence, relates back to date of birth of such child
 (Op. Atty. Gen., 1941-1942, p. 456, No. 22165 (Mich.)). In other
words, it is a legitimation statute for all intents and purposes.
   The petitioner, unfortunately, has not complied fully with the
statutory law and procedure of Michigan, the place of his domicile,
in acknowledging the paternity of his son. Consequently, the statute
is inoperative to effect legitimation of the child. The omissions
in the copy of translated acknowledgment before us fail to show
that the signature thereon was witnessed by two persons and acknowledged the same as a deed for real estate. Nor does the copy
show that it was recorded in Wayne County, Michigan, although it
has been recorded in a public office in Italy. If the instrument were   ,


properly executed it could be recorded "at any time" in Michigan.
The natural mother did not join the petitioner, apparently because
it was impracticable to do so. She is now deceased.
   It is conceded that petitioner is a United States citizen and that
he is domiciled in Micbiga.n_ The beneficiary is only 14 years of
age and his mother is deceased. We believe the petitioner, with
 assistance from the Service, should support his petition with an
acknowledgment of paternity duly executed and properly recorded
under the procedure and law of Michigan, forthwith; and that he
should furnish evidence showing support and custody of the beneficiary. Undoubtedly, there should be some facts submitted by the
 Service or the petitioner to show that he was in Italy at the time
 of, or immediately prior to, the birth of the beneficiary. On the
present record, the appeal will be dismissed without prejudice to
reconsideration, should the petitioner submit evidence to support
his petition.
   ORDER: It is ordered that the appeal in this case be dismissed
without prejudice to reconsideration should the visa petition be
supported by substantial evidence as indicated in the foregoing.

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