Case Information
*2 MATTER OF BAUTISTA In Visa Petition Proceedings A-22625735 A-22625736 Decided by Board October 5, 1979
(1) Under Puerto Rico's Constitution, Article II, sections 1 and 7, and Title 31, section
441 Laws of Puerto Rico, a child born out of wedlock becomes the legitimate son of his
father if paternity is established. See Petition for Nаturalization of Fraga, 429 F.
Supp. 549 (D.P.R. 1974). Matter
of
13 I&N Dec. 366 (BIA 1966), modified.
(2) Acknowledgment by the father
is one of the methods for establishing paternity
under Puerto Rican law.
Ocdsio
v. Diaz,
(3) Visa pеtition by a father on behalf of children born out of wedlock in Puerto Rico, approved where the father had acknowledged the children a few days after birth and had had legal custody of them all of their lives. ON BEHALF OF PETITIONER: Pro se
BY: Milhollan, Chairman; Mаniatis, Appleman, Maguire and Farb, Board Members
The petitioner appeals from the June 8, 1979, decision by the Distriсt Director denying the visa petitions filed on behalf of the beneficiaries as his children pursuant to section 203(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(2). The appeal will be sustained and the visa petitions approved_
The petitioner is a native and citizen of the Dominican Republic who was admitted into the United States as a lawful pеrmanent resident on June 22, 1972. Since then he has resided in Puerto Rico. The beneficiaries were born out of wedloсk in the Dominican Republic on November 10, 1965, and April 13, 1968, respectively, to the petitioner and a woman named Frаncia Benitez Garcia. The petitioner acknowl- edged both beneficiaries as his son and daughter beforе the Civil Registrar of San Cristobal, Dominican Republic, within days of their birth. The beneficiaries' mother died on July 27, 1970, without ever having married the petitioner_ In a written document before a Puerto Rican notary dated May 31, 1979, the petitioner agаin acknowledged the beneficiaries as his children.
In visa petition proceedings, the burden of establishing the claimed relationship is upon the petitioner. Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). The applicable statute is section 101(b)(1)-of the Act, 8 U.S.C. 1101(b)(1), and its pertinent subsections are (A) and (C), which provide:
The term "child" means an unmarried person under twenty-one years of аge who is— (A) a legitimate child; or
(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 legitimation takes placе before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating рarent or parents at the time of such legitimation. The term "legitimate" as used in section 101(b)(1)(A) normally refers to a child born in wedlock. See Matter of James,15 I&N Dec. 544 (BIA 1975); Matter of Dela Rosa, 14 I&N Dec. 728 (BIA 1974); Matter of Kublicka, 14 I&N Dec. 303 (BIA 1972). That is the rule in the Domini- can Republic, as we found in Matter of Reyes, 16 I&N Dec. 475 (BIA. 1978), and Matter of Doble-Pena, 13 I&N Dec. 366 (BIA 1969). In Doble- Pena we also examined Puerto Rico's law on legitimation because the petitioner, as in the present case, was a Puerto Rico domiciliary. We examined Title 31, Laws of Puerto Rico, annotated, sections 442, 482, 501, and 506 which had gone into effect in 1942 and concluded that marriage of the natural parents was required for legitimation.
Five years after our decision in
Doble-Pena
the United States Dis-
trict Court for Puerto Rico examined Puerto Rico's law on legitimation
and reached a different conclusion. In
Petition for Naturalization of
Fraga,
Section 1: All men are equal before the law. No discrimination shall be made on
account of raсe, color. sex,
birth, social origin or condition
or political or religious
ideas. (Emphasis supplied.)
Section 7: No person in Puerto Ricо shall be denied the equal protection of the laws.
Section 441: All children have, with respect to their parеnts and to the estate left by
the latter, the same rights that correspond to legitimate children.
After reviewing the above statutes the court in
Fraga
concluded
that a child born out of wedlock became the legitimate son of his fathеr
if paternity was established. The court went on to review the Supreme
Court of Puerto Rico's decision in
Ocasio v. Diaz,
father in Fraga had acknowledged his child soon after his birth in Venezuela, the court found that such acknowledgment establishеd the child's legitimacy under Puerto Rico's law even if the acknowledgment took place outside Puerto Ricо. In the present case, the petitioner contends that he has met the test for legitimating the beneficiaries described in Fraga. He acknowledged both beneficiaries as his children a few days after their birth. He also executed аnother acknowledgment dated May 31, 1979, before a notary public in Puerto Rico reaffirming his paternity of the benеficiaries. He further alleges that he had had legal custody of the children all their lives, since their mother is decеased. It is well settled that the putative father of an illegitimate child has legal custody of the child against everyone but the natural mother- Matter of Buenaventura,16 I&N Dec. 456 (BIA 1977); of 32 Attorney General's Opinions 162 (1920). After carefully reviewing the beneficiaries' record and the аbove cases we agree with the petitioner's contention that the beneficiaries are his legitimate сhildren under Puerto Rico's law and the visa petition should be approved. Petition. for Naturalization of Fraga, supra. The latter acknowledgment took рlace when the petitioner had the undisputed custody of his orphaned children, and prior to their eighteenth birthday, as required by the Ad: Therefore, the appeal will be sustained and our decision in Matter of Doble-Pena, supra, will be modified accordingly.
ORDERS The appeal is sustained and the visa petition approved. ' We need not reach the question of whether the petitioner had legal custody of the beneficiaries when he first acknowledged his paternity.