PINEDA

Interim Decision #3112

MATTER OF PINEDA

In Visa Petition Proceedings

A-28607660

Decided by Board June 19, 1989

(1) A visa petition filed by a father on behalf of his child who was born out of wedlock

was properly denied when the father failed to establish the existence of a bona tide

parent-child relationship and thereby failed to establish that the beneficiary was his

"child" within the meaning of section 101(b)(1)(D) of the Immigration and

Nationality Act, 8 U.S.C. § 1101(b)(1)(D) (Supp. N 1986).

(2) In order for an illegitimate child to qualify within the meaning of section

101(6)(1)(D) of the Act, a bona fide parent-child relationship need only exist at the

time the visa petition is filed or at some prior point during the life of the child,

provided the child is unmarried and less than 21 years of age when the relationship is

established.

(3) Congress has provided no guidance on the intended meaning of the phrase "hnna

fide parent-child relationship," but at minimum there should be some showing of

emotional and/or financial ties or an active concern by the father for the child's

support, instruction, and general welfare.

(4) Evidence relevant to establishing a bona fide parent-child relationship is varied and

widespread in nature and may include money order receipts or cancelled checks

showing the petitioner's financial support of the beneficiary; income tax returns;

medical or insurance records; school records for the beneficiary; correspondence

between the parties; and notarized affidavits of friends, neighbors, school officials, or

other knowledgeable associates.

(5)The most persuasive evidence for establishing a bona fide parent-child relationship is

documentary evidence which was contemporaneous with the events in question.

(6) Evidence showing that the parent-child relationship was established only after the

petitioning father gained lawful permanent resident status and, by extension, the legal

right to seek preference status for the beneficiary may be sufficient proof of a bona

fide relationship and cannot be presumed to be inherently self-serving or otherwise

invalid.

ON BEHALF OF PETITIONER: ON BEHALF OF SERVICE:

Robert E. Kahn, Esquire William Doug Craig

6906 Atwell, Suite 103 Assistant Regional

Houston, Texas 77081 Counsel

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members

This is an appeal from a June 22, 1988, decision of the Immigration

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and Naturalization Service Regional Service Center ("RSC") director

denying a visa petition filed by the petitioner on behalf of the

beneficiary as his unmarried daughter under section 203(a)(2) of the

Immigration and Nationality Act, 8 U.S.C. § 1153(a)(2) (1982). The

RSC director's decision was based on the determination that the

petitioner had not met his burden of proof in establishing that his

daughter was his child within the meaning of section 101(b)(1) of the

Act, 8 U.S.C. § 1101(b)(1) (1982), and, therefore, had not established

her eligibility for the benefit sought. The appeal will be dismissed.

The petitioner, a 42-year-old native and citizen of El Salvador,

entered the United States in or before 1981 and became a lawful

permanent resident on October 1I, 1983. The beneficiary is an 18-

year-old native and citizen of El Salvador. The Notice of Appeal

(Form 1-290A) indicates that the beneficiary entered the United States

without inspection in July 1982. On March 11, 1987, when the

beneficiary was 16 years of age, the petitioner filed a visa petition on

her behalf claiming preference status for her as his unmarried

daughter. A certified copy of the beneficiary's 1971 birth certificate

and a certified summary English translation of the birth certificate

dated March 9, 1987, were submitted with the visa petition. The

documents reflect that the beneficiary is the petitioner's natural

daughter but was bout out of wedlock.

Pursuant to section 101(b)(1)(C) of the Act, the beneficiary would

be considered the petitioner's child for immigration purposes and

would qualify for preference status only if she had been "legitimated

under the law of [her] residence or domicile, or under the law of [the

petitioner's) residence or domicile" prior to the age of 18. The RSC

director held that the facts, as presented in this case, revealed no

record of legitimation, and the petitioner does not appeal from the

RSC director's ruling in this regard. This appeal is the result of the

RSC director's determination that the beneficiary does not qualify as

the petitioner's child under section 101(b)(I)(D) of the Act. That

section defines a child as "an illegitimate child, by, through whom, or

on whose behalf a status, privilege, or benefit is sought by virtue of the

relationship of the child to its ... natural father if the father has or

had a bona fide parent-child relationship with the person."

As noted previously, the petitioner submitted a visa petition on the

beneficiary's behalf in March 1987 along with proof that he was her

natural father. Within the petition, he indicated that he and the

beneficiary shared the same Houston, Texas, address. He reported that

she had entered the United States without inspection but did not

indicate the date on which she arrived. By means of a Form 1 72 dated

-

May 29, 1987, the Immigration and Naturalization Service asked that

the petitioner provide a certified copy of his certificate of marriage to

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the beneficiary's mother. He responded on June 22, 1987, that he had

never married the beneficiary's mother and the beneficiary was

therefore illegitimate. By means of a Form 1-72 dated July 29, 1987,

the Service advised the petitioner of the requirements for establishing

legitimation under section 101(b)(I)(C) of the Act and of the need for

documentary evidence. The record indicates no response from the

petitioner. By means of a Form 1-72 dated September 10, 1987, the

Service advised the petitioner of the provisions of section 101 (b)(1)(D)

and of the need to establish a bona fide parent-child relationship

between himself and his daughter. Numerous examples of evidence he

might submit to establish this relationship were listed as part of the

typewritten material in the form and, in addition, a Service employee

added the following request in script: 'Please furnish documents back

to the earliest time of financial support." In response to this request

the petitioner provided the Service with copies of his federal income

tax returns for the years 1984 through 1986, which listed the

beneficiary as his dependent for tax purposes; a copy of the benefi-

ciary's report card, which had been issued by the Houston Indepen-

dent School District for the school term ending June 4, 1987, and

which the petitioner had signed as the beneficiary's parent; and a copy

of the beneficiary's immunization record, which indicated that she had

been immunized in Houston in October 1982 and July 1983. He also

provided an affidavit executed by the beneficiary on September 30,

1987. The beneficiary stated in the affidavit that she was currently

residing at the petitioner's address and that her father had always been

and continued to be responsible for her financial support and personal

welfare.

The RSC director determined that the petitioner's evidence was

insufficient to establish a bona fide parent-child relationship. He

characterized the beneficiary's affidavit as "self-serving" and noted

that it was not supported in any way by documentary proof of

financial support. While apparently acknowledging that the tax returns

for 1984 to 1986 did establish the petitioner's financial support of the

beneficiary during this time period, he characterized these records as

- self serving" since the support in question came about at a time when

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the petitioner and beneficiary would most benefit under the immigra-

tion laws. He indicated that documentary evidence of support between

1971, when the beneficiary was born, and 1983, when the petitioner

became a lawful permanent resident, should have been submitted and

that this evidence should have included medical bills at birth, school

records, insurance forms, money orders for the beneficiary's support,

or any other evidence of a bona fide parent-child relationship during

this period.

Section 101(b)(1)(D) states that a bona fide parent-child relation-

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ship need only exist at the time of filing of the visa petition or at some

prior point during the life of the child, provided the child is unmarried

and less than 21 years of age when the relationship is established. See

also Matter of Vizcaino, 19 I&N Dec. 644 (BIA 1988). There are no

other time requirements set forth in the Act. The petitioner maintains

that he. and the beneficiary enjoyed a parent-child relationship for

many years prior to her departure from El Salvador and have

continued the relationship subsequent to her entry into the United

States. A finding that the relationship existed either before or after she

entered the United States, however, would be sufficient to qualify her

as the petitioner's child for immigration purposes.

In visa petition proceedings, the burden is on the petitioner to

establish the beneficiary's eligibility for the benefit sought by a

preponderance of the evidence. Matter of Brantigan, 11 I&N Dec. 493

(BIA 1966); Matter of Soo Hoo, 11 I&N Dec. 151 (BIA 1965). As the

Board noted in Matter of Vizcaino, supra, Congress has provided no

guidance on the intended meaning of the phrase "bona fide parent-

child relationship" and the criteria for such a relationship is best

developed on a case-by-case basis. At minimum, however, some

showing of emotional and/or financial ties must be made. There

should be evidentiary proof that the parent and child live or lived

together, or that the father held the child out as his own, or that he

provided for some or all of the child's needs, financial and otherwise,

or that in general the father's behavior evidenced a genuine concern

for and interest in the child. Further guidance concerning the meaning

of "bona fide parent-child relationship" was provided in an interim

rule published for comment by the Service on March 17, 1989.

Pursuant to this interim rule, a bona fide parent child relationship

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"exists or has existed where the father evinces or has evinced an active

concern for the child's support, instruction, and general welfare." 54

Fed. Reg. 11,160 (1989) (to be codified at 8 § 204.2). The most

persuasive evidence for establishing the relationship is "documentary

evidence which was contemporaneous with the events in question,"

but secondary evidence may be acceptable. Matter of Vizcaino, supra,

at 648.

The report card and immunization record submitted by the

petitioner are of little, if any, evidentiary value in these proceedings.

The report card apparently was issued by school authorities and signed

by the petitioner as the beneficiary's parent in June 1987, i.e.,

approximately 3 months after the petition was filed. While the card

may serve as proof of a parent-child relationship between the

petitioner and beneficiary as of that date, it provides no proof of a

relationship before or at the time the visa petition was filed in March

1987. The immunization record, which was issued by the Houston

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Interim Decision #3112

Health Department, cites the beneficiary's name, sex, and date of birth

and specifies that she received immunizations in 1982 and 1983.

While it may serve as evidence that the beneficiary was residing

somewhere in the Houston area in 1982 and 1983, it does not show her

specific address, it makes no reference to her parentage, and it does not

otherwise link the beneficiary to the petitioner.

Sworn affidavits clearly are an acceptable means of establishing

eligibility for a benefit, and the beneficiary's affidavit, in our opinion,

is credible evidence of the petitioner's financial support and personal

concern for the beneficiary throughout her life. We also find that the

tax returns provide some evidence of the petitioner's financial support

of the beneficiary during the period from 1984 to 1986. In this regard

we note that inherent in the RSC director's decision to dismiss the tax

returns as "self-serving" evidence is the implication that the petitioner

embarked on his financial support of the beneficiary only in order to

obtain preference status for her pursuant to section 203(a)(2) and not

out of a desire to establish a true parent-child relationship. Our review

of the record discloses no evidence to support this implication. Indeed,

the beneficiary appears to qualify as the petitioner's child for

immigration purposes only under section 101(bX1)(D) of the Act, a

provision of the law which was not enacted until November 1986. The

petitioner's support, on the other hand, began long before that date, in

1984.

Because the financial support evidenced by the tax returns began

after the petitioner gained his lawful permanent residence and, by

extension, the legal right to seek preference status for the beneficiary

under section 203(a)(2) of the Act, it appears that the RSC director

has, in effect, presumed the support to be invalid evidence of a bona

fide relationship and has determined that evidence of an earlier

parent-child relationship must be forthcoming in order for the

petitioner to overcome the presumption. We find no legal basis for

such a presumption and reject the RSC director's determination that

evidence of parental support prior to the petitioner's acquisition of

lawful permanent resident status in 1983 is essential to a fording of a

bona fide parent-child relationship in this case.

While we reject the RSC director's characterization of both the

affidavit and tax returns as "self-serving," we believe this evidence is

scant and of limited evidentiary value. It is insufficient to establish the

active parental concern for the child's support and general welfare that

we believe must be present in any bona fide parent-child relationship.

The petitioner maintains that no other evidence of the relationship

is available, citing as his reason the fact that the beneficiary fled El

Salvador during a civil war and entered the United States without

inspection. These circumstances, according to the petitioner, made it

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impossible or unfeasible for the beneficiary to bring to the United

States those documents necessary to establish the parent-child rela-

tionship. We recognize that some documents pertinent to the issue at

hand may not be available for the reason given by the petitioner and

note that difficulties which the petitioner may face in obtaining

evidentiary material should be taken into account in reviewing the

record. Matter of Vizcaino, supra. Nonetheless, we find the petitioner's

argument in this regard to be unpersuasive. The evidence relevant to

establishing a parent-child relationship is varied and widespread in

nature and is not confined to documents the beneficiary may have had

in her possession during her residence in El Salvador. It may include

money order receipts or cancelled checks showing the petitioner's

financial support of the beneficiary at any point in her life, including

the time subsequent to her entry into the United States; medical or

insurance records; school records on the beneficiary, including those

compiled during her schooling in the United States; correspondence

between the parties, including correspondence that the petitioner may

have received from the beneficiary while she was still in El Salvador;

and notarized affidavits of friends, neighbors, school officials, or other

knowledgeable associates attesting to the existence of the parent-child

relationship.

We note in conclusion that the petitioner claims the RSC director's

decision to be in error in his case because the RSC director neglected

to consider the fact that the beneficiary resided with him and,

moreover, made no investigation to verify where she did reside. He

further states that a common residence in conjunction with the

financial support evidenced by the tax returns are sufficient to show a

bona fide parent child relationship. This may indeed be the case_

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However, as noted, the Board held in Matter of Brantigan, supra, that

the burden of establishing eligibility for a benefit sought lies with the

petitioner. The RSC director is under no obligation to make his case

for him. The petitioner submitted no evidence concerning the

beneficiary's residence at the time he filed the petition. On three

occasions subsequent to filing the petition he was contacted by the

Service and asked to provide evidence establishing that the beneficiary

in some way , qualified as his child for immigration purposes. On

September 10, 1987, the last of these occasions, he was specifically

advised of the provisions of section 101(b)(1)(D) and of his need to

establish a bona fide parent-child relationship by submitting evidence

of financial support of the child or of "any other documented actions

which reflect on the existence of such a relationship." Although he was

put on notice of the evidentiary requirements of his case and was given

a reasonable opportunity to respond with evidence of the beneficiary's

residence, he failed to do so.

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The petitioner has not satisfied his burden of establishing that the

beneficiary is entitled to recognition as his daughter under section

101(b)(1)(D) of the Act. We note, however, that the petitioner may file

a new visa petition on behalf of the beneficiary should he hereafter be

able to produce additional, probative evidence of a bona fide parent-

child relationship between the parties. Accordingly, the appeal will be

dismissed.

ORDER: The appeal is dismissed.

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