Case Information
MATTER OF CLAHAR In Visa Petition Proceedings A-221609'70 Decided by Board March 24, 1981
(1) To qualify for visa preference status as a brother or sister under section 203(a)(5) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(5), both the petitioner and the beneficiary must once have qualified the "child" of a common "parent" within the meaning of sections 101(b)(1) and (2) of the Act. (2) A child within the scope of the Jamaican Status of Children Act of 1976 is included within the definition of a legitimate or legitimated "child" as set forth in section 101(bX1) of the Immigration and Nationality Act, 8 u.S.c. 1so1(b)1), sir lung as the requisite family ties are established and the status arose within the time requirements of section 101(b)(1). Matter of Clahar, 16 I&N Dee. 484 (BIA 1978), modified. (3) To meet the definitional requirements of a "child" as set forth in section 101(b)(1) of the Act, the person must be under as years of age and any legitimation must hive taken place before the child reached the age of 18 years. (4) A brother-sister visa petition involving a petitioner and beneficiary who were both illegitimate at birth in Jamaica was properly denied for failure to satisfy the defini- tional requirements of section 101(b)(1) where the petitioner was 33 years old and the beneficiary 19 years old when the Jamaican Status of Children Act was enacted. ' QN BEHALF OF PETITIONER: Pro se
BY: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members In Matter of Clahar, I&N Dee.. 484 (BIA 19'78), the Board dis- missed an appeal from a decision of the District Director denying a visa petition submitted by the United States citizen petitioner on behalf of the beneficiary as his sister. The Immigration and Naturalization Ser- vice moves us to reconsider this decision. The motion to reconsider will be granted and our previous decision will be modified. The petitioner's appeal from the denial of the visa petition, however, 4761 again be dismissed. The petitioner was born out of wedlock in Jamaica in 1943. The benefi- ciary was born out of wedlock in Jamaica in 1956. They were born .of different mothers, but it is submitted that they are the children of the same father," Neither child was legitimated under the provisions of
As this case was preiriously resolved on other grounds, the question of the adequacy of the "Legitimation Act of Jamaica". 2 The petitioner, however, submit- ted that the distinction between legitimate and illegitimate children in Jamaica had in effect been eliminated by the Jamaican Status of Chil- dren Act of 1976 and that the visa petition should accordingly be granted. In our 1978 decision, we rejected the contention that the Jamaican Status of Children Act had sufficiently eliminated the distinctions in rights and status between children born in and out of wedlock to support a finding that children born out of wedlock could be deemed "legitimate" or "legitimated" within the meaning of section 101(b)(1) of the Immigra- tion and Nationality Act, 8 U.S.C. 1101(b)(1). The petitioner's appeal was dismissed for that reason. Subsequent to our decision, the Jamaican Minister of Justice provided a memorandum to the United States Consul General in Jamaica regard- ing the relationship between the Jamaican. Status of Children Act and that country's Legitimation Act. It was stated that under the Status of Children Act all children are now accorded equal treatment under the laws ofJamaica subject only to specific and limited provisions which are either transitional in nature or which ensure that children born out of wedlock "are not prejudiced by the difficulty in identifying their natural fathers. . . ."3 The memorandum further indicates that the minor statu- tory distinctions that exist result from a legislative attempt to mini- mize the problems associated with determining rights and status in an area where difficulties may arise in identifying the natural father of a child rather than from any intent to treat children born out of wedlock less favorably than those born in wedlock. The memorandum prepared by the Jamaican Justice Ministry was ultimately submitted to the Immigration and Naturalization Service. The Service requested comments on the memorandum from the Ameri- can-British Law Division of the Library of Congress. On receipt of a response from the Library of Congress, the Service filed the present motion in which the Service's Deputy General Counsel concurs in the :Jamaican Minister's assessment that under the Jamaican Status of Chil- dren Act "the legal duties and obligations of a father towards a child born out of wedlock are in all significant respects the same as those of a child born in wedlock." The Service urges the Board to reconsider our decision and to find that children born out of wedlock, who are covered by the Status of Children Act, may qualify as legitimate or proof that the parties had a common natural father was not addressed. The present record. however, is insufficient to adequately establish this familial relationship. the 1961 Jamaica Laws, No. 18. child is born out of wedlock in order to provide the child a "measure of certainty." The tie to the mother ensures that the child will have a readily identifiable domicile and citizenship. For example, domicile and citizenship rights are tied to the child's: mother, where the [2] See Legitimation Act ofJamaica, IlJamaica Laws, c. 217 (rev. ed. 1953). as amended by
legitimated children under section 101(b)(1) of the Immigration and
Nationality Act.
In view of the detailed assessment of the effect of the Jamaican Status
of Children Act of 1976 provided by the Justice Minister of Jamaica and
the Service's support of his conclusions, we will modify our 1978 decision
in this case. We now hold that a child within the scope of the Jamaican
Status of Children Act may be included within the definition of a legi-
timate or legitimated "child" set forth in section 101(b)(1) of the Immi-
gration and Nationality Act so long as the familial tie or ties are estab-
lished by the requisite degree of proof and the status arose within the
time requirements set forth in section 101(b)(1).
. The present case involves a brother-sister petition. In order to estab-
lish visa preference eligibility it must be demonstrated that both parties
once qualified as the "child" of a common "parent" with the meaning of
sections 101(b)(1) and (2) of the Act.
See Matter of Kong,
17 I&N Dec.
151 (BIA 1979);
Matter of Garner,
15 I&N Dec. 215 (BIA 1975); Matter
of Kim, 14 I&N Dec.
561 (BIA 1970_
See also Kazarian° v. Attorney
General,
512. F.2d 936 (D.C. Cir. 1975),
cert. denied,