VIZCAINO

Interim Decision #3061

MATTER OF VIZCAINO

In Visa Petition Proceedings

A-28824385

Decided by Board April 15, 1988

(1) In order to qualify as an illegitimate son or daughter under section 203(a) of the

Immigration. and Nationality Act, 8 U.S.C. § 1153(a) (1282), one must have once

' qualified as an illegitimate child under section 101(bX1XD) of the Act, 8 U.S.C.

§ 1101(bX1XD) (Supp. IV 1986).

(2) Section 101(bX1XD) of the Act, ,as amended by the Immigration Reform and Con-

trol Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359, is applicable to all visa peti-

tions filed after the effective date of the amendment, even if the son or daughter

was over 21 at the time the new law went into effect.

(9) Stwtion 101(b)(1)(D) of the Act, as amended, is applicable to all immediate relative

petitions filed and pending at the time the change in the statute went into effect.

(4) In all cases where immigration benefits are sought by virtue of the relationship

of an illegitimate son or daughter to his or her natural father, it must be shown

that a "bona fide parent-child relationship" was established when the son or

daughter was unmarried and under 21 years of age.

(5) Congress' expansion of section 101(bX1XD) to allow illegitimate children to re-

ceive or bestow immigration benefits through their natural fathers, provided a

"bona fide parent-child relationship" is shown, was clearly intended as a generous

provision, and it should be generously interpreted.

(6) In considering whether a "bona fide parent-child relationship" exists under sec-

tion 101(bX1)(D), the key is a genuine parent -child relationship in fact, not merely

a tie by blood.

(7) To establish a "bona fide parent-child relationship," there should be a showing

that the parties at some point actually lived together, or that the father held out

the child as his own, or that he provided for some or all of the child'a needs, or

that in general the father's behavior evidenced genuine concern for and interest

in the child.

ON BEHALF OF Ph ilHONER: ON BEHALF OF SERVICE:

Mark R. von Sternberg, Esquire Diane Reimer Bean

United States Catholic Conference Acting Appellate Counsel

902 Broadway

New York, New York 10010

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

644

Interim Decision #3061

This is an appeal from a decision of the Immigration and Natu-

ralization Service acting Regional Service Center ("RSC") director,

dated July 6, 1987, denying a visa petition filed by the petitioner on

behnlf of the beneficiary as his unmarried son under section

203(aXI) of the Immigration and Nationality Act, 8 U.S.C.

§ 1153(a)(1) (1982). Oral argument was beard before the Board on

November 5, 1987. The appeal will be sustained and the record will

be remanded to the RSC director.

The petitioner is a 63-year-old native of the Dominican Republic

and a citizen of the United States. He resides in New York. The

beneficiary is a 33-year-old native and citizen of the Dominican Re-

public. He is purported to be the son of the petitioner by a woman

the petitioner never married. The instant visa petition was filed on

the beneficiary's behalf on February 3, 1987.

In denying the visa petition, the acting RSC director noted that

to be classifiable as a son or daughter under section 203 of the Act,

a person must at some point have qualified as a child within the

meaning of section 101(bX1) of the Act, 8 U.S.C. § 1101(bX1) (1982). 1

Shetncoludahebficrynvqualedsthpi-

tioner's legitimate or legitimated child, because the petitioner

never married the beneficiary's mother, and both New York and

the Dominican Republic require parents to marry in order to legiti-

mate their child. See Matter of Bullen, 16 I&N Dec. 378 (3IA. 1977)

(New York); Matter of Reyes, 17 I&N Dec. 512 (BIA 1980) (Domini-

can Republic). She further found that the beneficiary could not

qualify as the petitioner's illegitimate child under the provisions of

section 101(b)(1)(D) of the Act, because the beneficiary was over 21

at the time the law changed to allow, under certain prescribed cir-

cumstances, petitions between illegitimate children and their fa-

thers.

Section 101(bXl)(D) of the Act, as amended by the Immigration

Reform. and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359,

provides as follows:

The terms "son" and "daughter" as used in section 203 are not defined in the

Act. However, since Congress, in amending section 101(bX1XD) of the Act, specifical-

ly required that a "parent-child relationship" with the father be shown (see discus-

sion infra), we find that in order to qualify under that section, it must be shown

that the son or daughter once qualified as a child under section 101(bXl). Such a

requirement is also consistent with long-settled law regarding stepchildren under

section 101(b)(1)03) of the Act, legitimated children under section 101(b)(1XC), and

adopted children under section 101(bXIXE). See, e.g., Kaho v. Ilchert, 765 F.2d 877

(9th Cir. 1985); De Los Santos v. INS, 690 F.2d 56 (2d Cir. 1982); Lau v. Kiley, 568

F.2d 543 (2d Cir_ 1977); Matter of Coker, 14 I&N Dec. 521 (BIA 1974); Matter of Fag-

nerre, 13 I&N Dec. 688 (BIA 1971)_

Interim Decision #3061

(1) The term "child" means an unmarried person under twenty-one years of age

who is—

(D) 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 mother or to its natural father if the father has or had a Iona fide

parent-child relationship with the person....

Until November 6, 1986, when the Immigration Reform and Con-

trol Act became law, illegitimate children could only receive or

bestow immigration benefits through their natural mothers, not

their natural fathers.

As indicated above, the acting RSC director found that the bene-

ficiary could not benefit from the change in the law because he was

over 21 at the time the change went into effect. On appeal, howev-

er, the Immigration and Naturalization Service, after lengthy in-

ternal debate, now agrees with the petitioner that section

101(bX1)(D), as amended, may be applied on behalf of persons who

turned 21 before the law went into effect, so long as paternity can

be established and there is a showing that a bona fide parent-child

relationship existed at the time the son or daughter was under 21

and unmarried. We agree that this is the correct application of the

,

law. The law as amended should apply to all petitions, such as the

present one, filed after the effective date of the statute, even where

the son or daughter was over 21 at the time the law went into

effect. Moreover, we find that the amended version of section

101(b)(1)(D) should apply to all immediate relative petitions filed

and pending at the time the law went into effect. 2 In all cases, it

must be shown that the parent-child relationship was established

when the son or daughter was unmarried and under 21 years of

age. Such a showing is necessary in order to satisfy the require-

ment that a son or daughter must once have met the definition of

"child," as discussed above.

This approach is not inconsistent with the line of cases holding

that where a country or a state eliminates all legal distinctions be-

tween legitimate and illegitimate children, persons born after the

effective date of the legislation are deemed legitimate children

under section 101(bX1)(A) of the Act, and persons born, and under

18 years of age, prior to the effective date are deemed to have been

legitimated by the change in law. Benefits for or through such per-

sons may be had under section 101(b)(1XC) of the Act regarding le-

gitimated children. See, e.g., Matter of Hernandez 19 I&N Dec. 14

2 Pursuant to Matter of Bardouale, 18 I&N Dec. 114 (BIA 1981), the nevi law will

not be applied to preference petitions which were filed before the effective date by

or on behalf of illegitimate children through their fathers. See also Matter of

Atembe, 19 I&11 Dec. 427 (BIA 1986); Matter of Drigo, 18 I&N Dec. 223 (BIA 1982).

646

Interim Decision #3061

(BIA 1983), and cases cited therein. In those cases, the state and

foreign law changes had to be applied and examined under the un-

changed provisions of the Immigration and Nationality Act. Be-

cause we have held that the change in the state or foreign law was

the act legitimating these persons, we have found them to be legiti-

mated, not legitimate, children. We have therefore held that the le-

gitimating act (the change in law) must have occurred prior to the

time the child reached the age of 18, as required by section

101(b)(1)(C). In the present situation, on the other hand, Congress

itself has changed the underlying statutory definition of an illegit-

imate child. Moreover, unlike section 101(bX1XC) of the Act, section

101(b)(1)(D), regarding illegitimate children, does not include an age

restriction. We therefore have no problem in applying the amended

law to any person, regardless of his or her age when the law went

into effect, who can establish that he or she once met the require-

ments for an illegitimate child.

Although the Service agrees that the new version of the law ap-

plies in this case, it is argued that the visa petition must still be

denied because the petitioner has not met his burden of establish-

ing either paternity or a "bona fide parent•child relationship" as

required under the statute. The petitioner asserts that, since the

acting RSC director did not mention these issues in her decision, it

must be assumed that she considered these showings to have been

made. Alternatively, the petitioner contends that the evidence

clearly establishes both paternity and a bona fide parent-child rela-

tionship and that, accordingly, the Board should simply grant the

petition.

We reject the petitioner's contention that the acting RSC direc-

tor's silence on these issues shows that she considered the matters

resolved, and in the petitioner's favor. Rather, it appears clear

that, finding a legal basis for denying the petition, the acting RSC

director simply did not reach the factual issues. Having reviewed

the record, we find a remand is necessary so that the RSC director

may fully consider all the evidence on this issue. On remand, the

petitioner will have the burden of establishing both that he is in

fact the beneficiary's biological father, and that he and the benefi-

ciary had a bona fide parent-child relationship prior to the time

the beneficiary reached the age of 21.

The term "bona fide parent-child relationship" is new in the Act,

is not defined, and the legislative history is silent as to congression-

al intent regarding its meaning. The Service suggests that, as a

starting point in defining the term, we use the "active parental in-

terest test" set forth in Matter of Moreira, 17 I&N Dec. 41 (MA

1979). In Matter of Moreira, we attempted to state what showing

Interim Decision #3061

was necessary to establish a steprelationship under section

101(b)(1)(B) of the Act. We held that where a child has not lived

with a stepparent, it must be shown that the stepparent had dem-

onstrated "an active parental interest in the child's support, in-

struction, and general welfare." Id. at 47; see also Matter of Mor-

eira, 17 I&N Dec. 370 (BIA 1980). Subsequently, we retreated from

the Moreira decisions in steprelationship cases and adopted the

holding of the court in Palmer v. Reddy, 622 F.2d 468 (9th Cir.

1980), that because of the "unqualified language" of the stepchild

provision, no qualifications beyond a valid marriage creating the

steprelationship should be imposed. See Matter of McMillan, 17

I&N Dec. 605 (BIA 1981); Matter of Bonnet - te, 17 I&N Dec. 587 (BIA

1980).

Unlike the stepchild provision, section 101(b)(1)(D) of the Act, as

amended, does carry specific qualifying language. Since Congress

qualified the language, we must give some meaningful effect to it.

As noted, Congress has provided no guidance as to the intended

meaning of the phrase "bona fide parent child relationship," and

-

we shall not attempt a specific definition here. We emphasize, how-

ever, that the expansion of section 101(b)(1)(D) to include the illegit-

imate children of their fathers clearly was intended as a generous

provision, and it should therefore be generously interpreted. At the

same time, Congress did not intend to place fathers on an equal

basis with mothers, or it would not have required a "bona fide

parent-child relationship" only with regard to fathers.

It is obvious that Congress intended that more than mere pater-

nity be required under the amendment. In_ keeping with the immi-

gration_ laws' historical and ongoing concern with true family re-

unification, the key is the existence of a parent-child relationship

in fact, not merely a tie by blood. In assessing a relationship, some

evidence of emotional and/or financial ties should be shown. The

factfinders should look for proof that the parties at some point ac-

tually lived together, or that the father held out the child as his

own, or that he provided for some or all of the child's needs, or

that in_ general the father's behavior evidenced a genuine concern

for the child. The most persuasive evidence would be some sort of

documentary evidence which was contemporaneous with the events

in question, as opposed to, for example, affidavits or letters written

just before or after the visa petition was filed We recognize, how-

ever, that once parties are separated, barriers of distance, national

boundaries, immigration restrictions, and, sometimes, difficulties

with communications must be taken into account. Nevertheless,

there should be evidence of some attempt to help support the child

and/or some showing of communication with or about the child,

648

Interim Decision dt 3061

which evinces a genuine interest in the child. To require less would

be to ignore Congress' clear language. Beyond this very general

guidance, we believe the meaning of the term "bona fide parent-

child relationship" is best left to be developed on a case-by-case

basis. We see no need to specifically adopt the "active parental in-

terest" standard set forth in the decisions in Matter of Moreira,

supra.

For the reasons discussed above, the appeal will be sustained and

the record will be remanded to the RSC director for further pro-

ceedings consistent with the foregoing decision.

ORDER: The appeal is sustained.

FURTHER ORDER: The record is remanded to the Regional

Service Center director for further proceedings consistent with the

foregoing opinion.