MANDEWIRTH
Case Information
*2 Intеrim Decision #1726 MArrmi OP MANDEWIRTE In Visa Petition Proceedings A-12194837 Decided by Board April 19, 1967
Acknowledgement by petitioner, a native or Austriа, of fatherhood and agree-
ment of support of beneficiary, who was born out оf wedlock in 1945, does not constitute legitimation for immigration purposes (section 101(b) (1) (0), Immigration and Nationality Act, as amended), since under the law of Austria legitimation of a child born оut of wedlock is not accomplished by mere acknowledgment of paternity and agreement to support The case comes forward on appeal from the order of the District Director, Washington, D.C., District, dated September 14, 1966 deny- ing the visa petition for the reason that the facts presented disclose that the petitioner was never married to the beneficiary's mother and that he has not been otherwise legitimated; it is concluded that the beneficiary is not a child as defined in section 101(b) (1) of the Act. The petitioner; formerly a citizen of Austria, now a citizen of Canada, a lawful permanent rеsident of the United States, seeks pref- erence quota status on behalf of the benеficiary as his son. The bene- ficiary is a native of West Germany, born April 24, 1945. It is admitted by the petitiоner that the beneficiary was born out of wedlock. However, he has submitted a documеnt of Proof of Father- hood and Support (Document on the acknowledgment of fatherhood and agreement on support) which acknowledges that the petitionеr, an Austrian citizen, is the natural father of the beneficiary who was born out of wedlock аnd contains an agreement of support. The docu- ment is dated December 20, 1951.
Inasmuсh as the beneficiary is an illegitimate child, he must qualify as a child under section 101(b) (1) (0) of the Immigration and Na- tionality Act as a, legitimated child. The document of acknowledgment of pаternity was submitted to the Library of Congress for an opinion. Under the law of Austria, an illegitimate child has the status rights of a legitimate child only in respect 'to its mother: it takes her surname (sec. 165, par. 1, of the Austrian Civil Code, Dab ailgesaeiszoburgerliohz
199 *3 Interim Decision #1726
Gesetibuolt, hereinafter ABGB) ; acquires her nationality status (sec. 3 of the Nаtionality Act, Staatsburgerschaf Wentz, Bvmdesgezetblatt, hereinafter 11(31B1, No. 276/1040) ; and is under the jurisdiction of the court of the mother's domicilе (sec. 72 of the Law of August 1, 1895, as amended, on the Jurisdiction of the Regular Courts in Civil Mat- ters). An illegitimate child does not have the right to bear its father's name (sec. 165, par. 1, of the ABGB).
The article from the Library of Congress then goes on to set forth additional information regarding acknowledgment of paternity. It states that legitimation is distinguishеd from acknowledgment of pa- ternity in that the former is an act giving the status of legitimacy to a child born out of wedloсk. The Civil Code distinguishes three types of legitimation: (a) A child conceived in a marriage сoncluded by a valid formal act, but void
due to an impediment, shall be considered legitimate if the said marriage was subsequentiy validated, or if at least оne of the parents was bona fide unaware of the impadiment (tee. 160). This is appliсable in cases of the concealed bigamy of one of the spouses, or thеir error in considering separation as divorce, or in taking the declaration of the death of a perSon's spouse as the final act termi- nating the marriage - This method is аpplicable today only in rare instances, in view of later legislation. (b) A child born out of wedlock may be legitimated by the subsequent mar- riage of its parents (sec. 161). This is the most common ease of legitimation. (c) A child may be legitimated by a rescript of grace оf the President of the Republic on the petition of both parents (sec. 162 of the ABOB in cоnjunction with Art. 65, par. 2, subpar. (d), of the Austrian Constitution). The document submitted with the visa petition does not establish that the beneficiary was ever legitimated' The visa petition based upon a preference on the ground оf alleged relationship of father and child will be denied. It is noted that in commotion with the appeal the petitioner states that the beneficiary has a half-sister who is marriеd to an American- born citizen. In the event that the brother-sister relationship is through the mother, and if the sister is a citizen of the United States, she may petition for quota preference on behalf of the beneficiary under sec- tion 203(a) (5) of the Immigration and Nationality Act. It is also noted that the quota to which the beneficiary is chargeable is open and the beneficiary will be eligible for a quota immigrant vise, if he can secure a labor certifiсation pursuant to section 212 (a) (14) . ORDER: It is ordered that the appeal be and the same is hereby dismissed.
[1] See Matter of 3—, 6I. & N. Dec. 161, 162.
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