CHAMBERS
Under section 1-208 of the Estates and Trusts Article of the Maryland Code , an illegitimate child is considered to be the child of his father if the father (1) has been judicially determined to be the father in paternity proceedings; (2) has acknowledged himself, in writing, to be the father; (3) has openly or notoriously recognized the child to be his child; or (4) has subsequently married the mother and has acknowledged himself, orally or in writing, to be the father.Section 1-208 of the Estates and Trusts Article of the Maryland Code , although contained in an inheritance statute section of the Maryland Code, is a legitimation statute, under which legitimation may be accomplished by any one of four enumerated methods for the purpose of obtaining immigration benefits.- Where, prior to the beneficiary‘s 18th birthday, the petitioner signed an affidavit acknowledging that he is the beneficiary‘s father, openly recognized the beneficiary as his daughter from her childhood, and continues to provide a home and support for her, the beneficiary has been legitimated in accordance with the law of Maryland.
- Where the beneficiary‘s mother formally relinquished custody of the beneficiary by giving her written consent to have the beneficiary live in the United States with the petitioner and the beneficiary resided with the petitioner in the United States for five years, during which the petitioner openly recognized the beneficiary as his daughter and legitimated her, the petitioner had legal custody of the beneficiary, and the legitimation will be recognized under
section 101(b)(1)(C) of the Immigration and Nationality Act .
ON BEHALF OF PETITIONER: Hal Walls, Jr., Esquire
4604 Georgia Avenue, N.W.
Washington, D.C. 20011
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire and Farb, Board Members
The petitioner appeals from a decision of the District Director dated February 26, 1979, in which the visa petition filed on behalf of the beneficiary as his daughter was denied on the ground that she was illegitimate and could not qualify as his child within the meaning of
The District Director‘s denial of the visa petition was based upon his finding that the beneficiary was illegitimate at birth and that there was no evidence of her legitimation in accordance with the law of either the petitioner‘s or the beneficiary‘s residence. It was the District Director‘s conclusion that legitimation could only be accomplished under the law of Jamaica by marriage of the child‘s natural parents, and under the law of Maryland by marriage of the parents, formal adoption of the child by the parents, or legal proceedings to obtain a judicial declaration of legitimacy.
In an affidavit dated November 9, 1978, the petitioner acknowledged that he is the beneficiary‘s father and stated that he has never been married to her mother. Although the beneficiary‘s birth certificate does not include the name of her natural father, the petitioner has submitted a second affidavit, dated August 2, 1979, explaining that he was not in Jamaica at the time of the beneficiary‘s birth, so under Jamaican law his name could not be placed on her birth certificate. In a signed affidavit, dated January 11, 1979, the beneficiary‘s mother confirmed the petitioner‘s claim that he is the beneficiary‘s natural father and stated her desire to have the beneficiary live with her father in the United States. In addition, the petitioner has submitted the affidavit of a lifelong friend which avers that the petitioner has always provided support for the beneficiary and has openly recognized her as his child both in Jamaica and Maryland, a fact which he claims is well known in both communities.
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). Thus, in order to accord the beneficiary immigration benefits, the petitioner must prove that she qualifies as his child within the meaning of the Act. The applicable statute is
(1) The term “child” means an unmarried person under twenty-one years of age who is—
(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 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....
Therefore, the petitioner must prove that the beneficiary has been legitimated in accordance with the law of either Jamaica or Maryland prior to her 18th birthday and that the petitioner had legal custody of the beneficiary at the time of legitimation.
On appeal, counsel for the petitioner argues that the District Director erred in concluding that judicial proceedings or marriage of the parents is required in order to accomplish legitimation of an illegitimate child under the law of Maryland. He contends that the Maryland law now in effect permits a father to legitimate his child by acknowledging himself to be the father in writing or by openly and notoriously recognizing the child as his.
In light of the petitioner‘s representations made on appeal we have examined the law of Maryland to determine the legal requirement for legitimation in that state.
Illegitimate child.
(a) Child of his mother.—A child born to parents who have not participated in a marriage ceremony with each other shall be considered to be the child of his mother.
(b) Child of his father.—A child born to parents who have not participated in a marriage ceremony with each other shall be considered to be the child of his father only if the father
(1) Has been judicially determined to be the father in an action brought under the statutes relating to paternity proceedings; or
(2) Has acknowledged himself, in writing, to be the father; or
(3) Has openly and notoriously recognized the child to be his child; or
(4) Has subsequently married the mother and has acknowledged himself, orally or in writing, to be the father.
Recent Maryland cases have established that this statute, although contained in an inheritance statute section of the Maryland Code, is not limited in its scope and application to matters of inheritance only. See State v. Rawlings, 38 Md. App. 479, 381 A.2d 708 (Md. 1978); Williams v. Williams, 18 Md. App. 353, 306 A.2d 564 (Ct. Spec. App. 1973); Thomas v. Solis, 263 Md. 536, 283 A.2d 777 (Md. 1971); Dawson v. Eversberg, 257 Md. 308, 262 A.2d 729 (Md. 1970); see also, Holloway v. Safe Deposit and Trust Co., 134 A. 497 (Md. 1926). In these cases, the statute has been held applicable to accomplish the legitimation of a
The United States District Court for the District of Maryland has also ruled that
As support for the conclusion that
(a) Jurisdiction of court of equity.—A court of equity has jurisdiction over the custody, guardianship, legitimation, maintenance, visitation and support of a child. In exercising its jurisdiction, the court may
...
(2) Determine the legitimacy of a child, pursuant to section 1-208 of the Estates and Trusts Article of this Code.
In addition, The Second Report of the Governor‘s Commission to Review and Revise the Testamentary Law of Maryland (1968) compared the new statute to the previous legitimation statute, Md. Ann. Code Art. 46, section 6 (1957), noting that:
The only change in substance made in this Section is the inclusion of a provision permitting an illegitimate child to inherit from a father who has been adjudicated as the father in a proceeding brought for that purpose or who has been judicially ordered to support the child. This Section also spells out more fully the procedure for legitimation by acknowledgment without a subsequent marriage as ... [was formerly] required by the Maryland law. It reflects the modern policy in the direction of mitigating the impact of illegitimacy.
Having considered these interpretations of
On November 9, 1978, prior to the beneficiary‘s 18th birthday, the petitioner signed an affidavit acknowledging that he is the benefici
The only remaining issue is whether the beneficiary was in the petitioner‘s legal custody at the time legitimation took place.
The beneficiary has resided in the United States with the petitioner for five years, during which time the petitioner has continuously recognized her as his daughter. On January 11, 1979, the beneficiary‘s mother formally relinquished custody of the beneficiary in a signed affidavit, giving her consent to have the beneficiary live in the United States with the petitioner. Since the putative father of an illegitimate child has a right to custody of the child superior to all but the mother, the petitioner obtained legal custody of the beneficiary as of that date. See Matter of Buenaventura, 16 I&N Dec. 456 (BIA 1977); cf., Matter of Dela Rosa, 14 I&N Dec. 728 (BIA 1974). The petitioner‘s open recognition of the beneficiary as his child thereafter constitutes an act of legitimation under Maryland law. Since that act occurred subsequent to the time when the beneficiary was in his custody, we conclude that the petitioner has met the requirement of the statute that the beneficiary be in his legal custody at the time of legitimation.
We find that the beneficiary qualifies as the petitioner‘s child within the meaning of the Immigration and Nationality Act and is, therefore, eligible to receive immigration benefits by virtue of that relationship. Accordingly, the appeal will be sustained.
ORDER: The appeal is sustained and the visa petition is approved.