PATRICK
(2) Under the law of New York, the father‘s residence and domicile, legitimation of a child born out of wedlock requires the marriage of the child‘s natural parents.
(3) By virtue of the Republic of Trinidad and Tobago Status of Children Act of 1981, enacted on March 1, 1983, all children born in оr out of wedlock (after the effective date of the Act) have equal status under the laws of that country. Matter of Archer, 10 I&N Dec. 92 (BIA 1962), modified.
(4) A child who comes within the scope of the Republic of Trinidаd and Tobago Status of Children Act is included within the definition of a legitimate or legitimated “child” as set forth in section 101(b)(1) of the Act if paternity is established and the person is under 21 yeаrs of age and the legitimation took place before the child reached the age of 18 years.
The lawful permanent resident petitioner applied fоr preference status for the beneficiary as his unmarried son pursuant to section 203(a)(1) of the Immigration and Nationality Act,
The petitioner is a 43-year-old native and citizen of Trinidаd and Tobago who became a lawful permanent resident of the United States on April 19, 1970. The beneficiary was born out of wedlock in Port-of-Spain, Trinidad, on April 15, 1969, to the petitioner and a women he never married. The instant visa petition was filed on January 3, 1985.
In support of the visa petition, the petitioner submitted the beneficiary‘s birth certifiсate, an affidavit from the petitioner‘s brother attesting to the beneficiary‘s birth, and the beneficiary‘s baptismal certificate. The birth and baptismal certificates reflect that the beneficiary was given his natural mother‘s surname, and these documents do not identify the beneficiary‘s natural father. The affidavit of the petitioner‘s brother аlleges that the beneficiary‘s natural father is the petitioner. This affidavit was sworn and executed in 1974, over 10 years before the visa petition was filed. In this case, the district director was satisfied that the petitioner had established his paternity of the beneficiary.
The district counsel for the Immigration and Naturalization Service has submitted a written briеf to accompany the certification of this case to the Board. Therein, the district counsel expresses his satisfaction that the petitioner is the beneficiary‘s natu
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit sought. Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). To оbtain preference status for the beneficiary as his son under section 203(a)(1) of the Act, the petitioner must establish that the beneficiary once qualified as his child as that term is defined by section 101(b)(1) of the Act. Matter of Coker, 14 I&N Dec. 521 (BIA 1974).
Section 101(b)(1) of the Act provides in pertinent part:
The term “child” means an unmarried person under twenty-one years of age 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 place before the child reaсhes 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.
In the present case, the bеneficiary was born out of wedlock. Accordingly, it must be established that he was either deemed legitimate or legitimated under the law of Trinidad or New York.
Under the law of New York, the legitimation of a child born out of wedlock requires the marriage of the child‘s natural parents. Matter of Bullen, 16 I&N Dec. 378 (BIA 1977); Matter of Archer, supra. Here, the beneficiary‘s natural parents never married.
In light of the district director‘s certification of this record to us for reviеw, we have examined the laws of Trinidad and Tobago in order to ascertain the current legal status of children born in or out of wedlock in that country and to determine how these laws may affect the visa petition under consideration in this case.
We note that on March 1, 1983, the Status of Children Act of 1981 was enacted in the Republic of Trinidad and Tobago. The expressed intention of this legislation is to remove the legal disabilities of children born out of wedlock. It is clear from studying the text of the Status of Children Act of 1981, section 3, that the draft
We have held that when the country where the bеneficiary was born eliminates all legal distinctions between legitimate and illegitimate children, all children are deemed to be the legitimate offspring of their natural father from the time that country‘s laws are changed. See Matter of Pavlovic, 17 I&N Dec. 407 (BIA 1980); Matter of Hernandez, 17 I&N Dec. 7 (BIA 1979). The test we have applied for immigration preference purposes is equality of filial rights when compared with those children born in wedlock. Compare Matter of Sanchez, 16 I&N Dec. 671 (BIA 1979) with Matter of Clahar, 18 I&N Dec. 1 (BIA 1981) and Matter of Reyes, 16 I&N Dec. 475 (BIA 1978). The dispositive factor was that the acts eliminating all legal distinctions between legitimate and illegitimate children had occurred before the beneficiary had reached the age of 18 years. See Matter of Obando, 16 I&N Dec. 278 (BIA 1977). In the present case, the beneficiary was under 18 years old when the Trinidad and Tobago Status of Children Act of 1981 wаs enacted. Accordingly, the beneficiary did qualify as the “child” of his natural father within the meaning of section 101(b)(1) of the Act. Therefore, inasmuch as the Service is satisfied that thе petitioner has adequately proven his paternity of the beneficiary, we conclude that the beneficiary qualifies for preference status as the pеtitioner‘s unmarried son under section 203(a)(1) of the Act in view of the apparent elimination of all legal distinctions between legitimate and illegitimate children in the Republiс of Trinidad and Tobago. The Board‘s decision in Matter of Archer, supra, is modified to the extent it is inconsistent with the decision herein. The decision of the district director denying the visa petition will be reversed and the visa petition approved.
ORDER: The decision of the district director is reversed, and the visa petition is approved.