REYES
(2) A “legitimated” child is one placed “in all respects upon the same footing as if begotten and born in wedlock....” Pfeifer v. Wright, 41 F.2d 464, 466 (10 Cir. 1930), cert. denied, 283 U.S. 896 (1931).
(3) Excepting Matter of Lee, 16 I&N Dec. 305 (BIA 1977), the Board has never recognized processes (legal or otherwise) that did not place an illegitimate child on an equal footing with a legitimate child as satisfying the “legitimated” proviso of
(4) Where the beneficiary was born out of wedlock in the Dominican Republic, was not legitimated under the means prescribed by the laws of that country, and did not attain all of the rights and status of a legitimate or legitimated child when he was acknowledged by the petitioner in 1976, the Board cannot conclude that the beneficiary was “legitimated” within the meaning of
(5) The Board withdraws from its decision in Matter of Lee, 16 I&N Dec. 305 (BIA 1977).
In a decision dated March 20, 1978, this Board dismissed the petitioner‘s appeal from a District Director‘s denial of a visa petition that he had submitted on behalf of the beneficiary as his unmarried son. The beneficiary had been born out of wedlock in the Dominican Republic and subsequently “acknowledged” by the petitioner under the laws of that country. We concluded that an “acknowledged” child in the Dominican Republic could not be equated with a “legitimated” child within the meaning of
The record indicates that the beneficiary was born out of wedlock in 1962 in the Dominican Republic, a country in which legal distinctions still exist between children born in and out of wedlock. Under the laws of the Dominican Republic, for a child to be legitimated, there must be an “acknowledgment of the natural offspring followed by the marriage of the parties.” See Matter of Doble-Pena, 13 I&N Dec. 366, 367 (BIA 1969). The beneficiary‘s natural parents did not marry. The petitioner, however, acknowledged the beneficiary as his son in 1976, when the boy was 14 years old. This “acknowledgment” did not place the beneficiary in the same status as a legitimate or legitimated child, but did produce “the same effects of legitimate filiation with the exception of the distinctions made in matters concerning succession.” See Matter of Reyes, supra at 477.
In 1977, the petitioner sought preference status for the beneficiary as his “unmarried son” under the provisions of
Section 101(b)(1) provides in relevant part that:
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 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.2
The term “legitimate” as used in
The term “legitimated” in
Legitimation laws have commonly required the subsequent marriage of a child‘s natural parents to effect legitimation, but other methods of conferring the full status of a legitimate child are recognized in different jurisdictions. See, for example, Matter of Chambers, Interim Decision 2730 (BIA 1979) (Maryland; legitimation by acknowledgment); Matter of Duncan, Interim Decision 2373 (BIA 1975) (Liberia; legitimation by judicial decree); Matter of Ramirez, 13 I&N Dec. 666 (BIA 1971) (Louisiana; legitimation by acknowledgment); Matter of C—, 9 I&N Dec. 268 (BIA 1961) (Michigan; legitimation by
Excepting Matter of Lee, supra, the Board has never recognized processes (legal or otherwise) that did not place an illegitimate child on an equal footing with a legitimate child as satisfying the “legitimated” proviso of
Applying these principles to the present case, where the beneficiary was illegitimate at birth, was not “legitimated” by the means prescribed under the laws of the Dominican Republic, and did not attain all of the rights and status of a legitimate or legitimated child when acknowledged by the petitioner, we cannot conclude that the beneficiary was “legitimated” within the meaning of
Regarding the question of whether the differences in status between a legitimated child and an acknowledged child in the Dominican Republic are such that they can be rationally related to the purposes of the Immigration Act so as to warrant including the former, but not the latter, within the scope of
With respect to each of these legislative policy distinctions, it could be argued that the line should have been drawn at a different point and that the statutory definitions deny preferential status to parents and children who share strong family ties. But it is clear from our cases, ... that these are policy questions entrusted exclusively to the
political branches of our Government, and we have no judicial authority to substitute our political judgment for that of the Congress. Fiallo at 798 (citations omitted).
Where Congress has specified those father-child relationships which should be recognized for immigration purposes using terms of commonly understood legal meaning, the Board cannot “redefine” those terms based on its own views as to how the purposes underlying the immigration laws might be better achieved. In interpreting the language of
The requirement that legitimation occur before a father-child relationship will be recognized, however, may have in part resulted from a Congressional desire to adopt a rule of clear application, which operated to discourage incidents of fraud and to recognize such relationships only where a father had already demonstrated for all non-immigration purposes that he wished the child to have equal status under the law with his legitimate children. See Fiallo v. Bell, supra at 795 n. 6. Cf. Peignand v. INS, supra (regarding the Nationality Act of 1940).
The fact that distinctions arise in “matters concerning succession” in the Dominican Republic between legitimated and acknowledged children may well be relevant to such legislative purposes. First, any test dependent on a case-by-case assessment as to which distinctions in law between legitimated and acknowledged children are meaningful for immigration purposes would be far from a “bright-line test.” Peignand v. INS, id. Moreover, as to the goal of minimizing the incidents of fraud, it could be concluded that fewer male fide applications (i.e., involving individuals attempting to bestow or derive benefits from other than natural children) would result where the individual was forced to give a child an essentially irrevocable equal status under the eyes of the law with his own legitimate child in order to accomplish the fraud. In this regard, we note that perhaps the most significant legal distinctions between legitimate and illegitimate children (and certainly the most sensitive distinction giving rise to the majority of litigation in this area) have been differences involving inheritance rights. In any event, it is not the Board‘s role to probe and test the justification for the legislative decision.
We recognize that the Board‘s decision in Matter of Lee, supra, cannot be reconciled with the decision herein. Nor can the decision in Matter of Lee be meaningfully distinguished from over twenty years of Board precedent decisions, which were not referenced in that case. The decision in Lee resulted in major part from a desire to reunite a
ORDER: The visa petition is denied.