DELA ROSA
(2) In the absence of affirmative evidence that he had legal custody of the beneficiary at the time of legitimation, petitioner has failed to meet the burden of establishing that beneficiary, who was born out of wedlock in Panama in 1956 and legitimated under the law of Panama in 1957, is his “child” within the contemplation of section 101(b)(1)(C) of the Act, as amended. Accordingly, beneficiary is ineligible for immediate relative status under section 201(b) of the Act.
The United States citizen petitioner applied for immediate relative status for the beneficiary as his child under
The beneficiary was born in Panama on August 26, 1956 to the petitioner and a woman who was not his wife. The beneficiary‘s birth certifiсate states that the petitioner declared paternity before an official of the Civil Registry of Colon on March 14, 1967. Under the law of Panama, the petitioner‘s declaration established
However, in order to qualify as a “child” under
The petitioner has submitted an affidavit stating that he has supported the beneficiary since birth. He states in the Notice of Appeal that although a visa was issued to the beneficiary at the time the petitioner left Panama in 1965, she did not accоmpany the petitioner at that time because her mother did not wish her to leave. The record also contains a document signed by the beneficiary‘s mother, dated December 2, 1969, authorizing the petitioner to bring the beneficiary to the United States.
In visa petition proceedings, the petitioner has the burden of establishing eligibility for the benefit conferred by the immigration laws. Matter of Brantigan, 11 I. & N. Dec. 493 (BIA 1966). Nothing in the record before us indicates that the petitioner had legal custody of the beneficiary at the time of legitimation. In fact, the necessity of receiving the permission of the beneficiary‘s mother in order to bring her to this country indicates that the mother, rather than the petitioner, had legal custody of the beneficiary.
The petitioner has not established that the beneficiary is his “child” under
ORDER: The appeal is dismissed.
I respectfully dissent. In my estimation, the Board has placed an unduly restrictive construction on the phrase “legal custody of the legitimating parent” in
The term “legal custody” is not definеd in the Act. The majority opinion refers to the Board‘s unpublished opinion in Matter of Harris, A18 953 024 (BIA November 6, 1970). In my dissenting opinion in that case, I pointed out that, while the legislative history of the requirement was sparse, “it is fairly inferable that the purpose of the ‘legal custody’ requirement was to prevent abuse through ad hoc legitimation by a putative father who had had little or no contact with the child and who had obtained the legitimation solely for the purpose of circumventing the immigration laws.”
As I noted in Harris, Congress did not specify that a parent must have “actual custody” or “physical custody,” or even “custody.” It could be argued that the use of any of the preceding terms would have required the legitimating parent to have actual physical custody of the child at the time of legitimation. In my opinion, however, “legal custody” connotes the legal rights and responsibilities incident to parenthood. Such rights and responsibilities may exist either in conjunction with or independently from actual “physical custody.” See e.g., Burge v. City and County of San Francisco, 41 Cal. 2d 608, 262 P.2d 6, 12-13 (1953); Donnelly v. Blankenstein, 167 Cal. App. 2d 282, 334 P.2d 260, 262 (1959).
It has long been the view under the immigration laws that “legal custody” is separable from actual “physical custody.” The two-year “legal custody” requirement for adoption under
I havе no quarrel with the majority‘s statement that the mother of an illegitimate child generally has a primary right to its custody (although I question whether this is necessarily a universal rule). That situation, however, is quite distinct from the one in which a father has legitimated his child. In my view, the act of legitimation, if it is bona fide and creates a legal status identical to that of a child horn in wedlock, vests “legal custody” in the legitimating parent. See e.g., In re Navarro, 77 Cal. App. 2d 500, 175 P.2d 282 (1946); Donnelly, 334 P.2d 260, 263 (1959); 10 Am. Jur. 2d Bastards section 66; 10
It has been recognized that when, due to legitimation, a child‘s status in relation to his father becomes that of a child born in wedlоck, the right of the natural mother to exclusive legal custody is modified. See In re Navarro, supra; Donnelly v. Blankenstein, supra. I deem this to be especially true in the present case, since, according to the Library of Congress, the law of Panama does not permit any classification based on legitimacy, and all children whose parentage has been established are legitimate and have an identical legal status in relation to their parents. Articles 58 and 59 of the Panamanian Constitution of 1946; Law 60 of 1946 (Panama); see Matter of Sinclair, 13 I. & N. Dec. 613 (BIA 1970). The mother may retain physical custody, but she no longer has the right to exclusive legal custody unless a court so decrees.
What the majority has done is to establish a very strong presumption that no father can be said to have “legal custody” of his legitimated child if the child‘s natural mother is still alive. Evidently, the majority would аllow a father who has legitimated his child to rebut this presumption against legal custody at the time of legitimation only by showing that he obtained a court decree awarding “legal custody,” or that “legal custody” vested in him by virtue of some “natural right,” whatever the latter term may encompass. This view appears to ignore the legal effect of legitimation under the applicable domestic law, and tends to equate “legal custody” with “physical custody.”
It is my opinion that “legal custody” vested in the petitioner at the time he legitimated the beneficiary in accordance with the law of Panama. The question remains whether the vesting of legal custody by the act of legitimation satisfied the requirement that the beneficiary be in the legal custody of the petitioner “at the time of such legitimation.” I сonclude that it did.
In making “legal custody” a requisite for legitimation under
The beneficiary was allegedly born as the result of a non-marital relationship between the petitioner and the beneficiary‘s mother. Shortly after the beneficiary‘s birth, the petitioner took all necessary steps to legitimate her under the law of Panama. The petitioner was personally present in Panama at the time of the beneficiary‘s birth, at the time of thе legitimation, and for some years thereafter. Since the legitimation took place well in advance of the petitioner‘s entry into the United States for permanent residence, his action hardly appears to have been undertaken to obtain immigration benefits. According to the petitioner, he has supported the child since birth. I do not take the petitioner‘s submission to the wish of the beneficiary‘s mother not to have her leave Panama with the petitioner in 1965 as establishing that the mother had exclusive legal custody of the beneficiary at that date or at the time of legitimation.
In short, the petitioner took all necessary steps to establish the beneficiary‘s status as his legitimated daughter under the applicable domestic law, years in advance of seeking immigratiоn benefits. He has apparently always treated her as his daughter. We are not faced with a situation where an individual secures ad hoc legitimation of a child he has seldom or never seen, at a late date, in order to circumvent the immigration laws. Yet, in spite of the fact that the petitioner has done all that could reasonably be expected of him, immigration benefits are being denied because of the restrictive construction placed on the “legal custody” requirement of
I note that the “legal custody” requirement has been a part of
Moreover, in some of these cases it is doubtful whether the fathers would have been able to meet the requirement laid down by the majority.
For example, in Matter of K—, supra, the beneficiary was born out of wedlock to the petitioner‘s fiancée in Poland in 1939. The petitioner left Poland for good whеn the beneficiary was three months old without having married the beneficiary‘s mother. He acknowledged the beneficiary in 1948 by sending a document to the Polish authorities while he was in England and the beneficiary was apparently still in Poland. The Board concluded that the requirements of the immigration law had been met and granted the petition. I submit that it is impossible to reconcile this result with the narrow view of “legal custody” which the Board is presently adopting.
In Matter of Jancar, supra, the petitioner acknowledged the beneficiary in Yugoslavia when the child was five months old. He then left Yugoslavia never to return. The Board held that the child became legitimated under Yugoslavian law when she was five months old. The issue of legal custody at the time of legitimation was never raised by the Board, despite the fact that the District Director had mentioned the legal custody requirement in his denial of the visa petition. Once again, it appears that the result is in conflict with the majority opinion.
I have merely cited several obvious examples in which the construction adopted by the majority conflicts with past dеcisions. The majority position seemingly would require the reversal of the results in such cases, where legitimated child status has heretofore been granted, if similar situations arise after today‘s decision.
It is my view that the petitioner has legitimated the beneficiary in accordance with the requirements of
Louisa Wilson, Member Dissenting:
I concur in the dissenting opinion of the Chairman, and would sustain the appeal and grant the petition.