MOURILLON

Interim Decision #2882

MATTER OF MOURILLON

In Visa Petition Proceedings

A-19731000

Decided by Board September 22, 1981

(1) Under the law of Curacao, Netherlands Antilles, legitimation of a child born out of

wedlock is effected by the subsequent marriage of the natural parents together with

their prior or contemporaneous acknowledgment of the child.

(2) An act of acknowledgment of paternity in Curacao without the marriage of the natural

parents does not place the acknowledged child in the same status as a legitimated child

and, therefore, the petitioner did not qualify as his father's "child" under section 101(b)(1)(C)

of the Immigration and Nationality Act, 8 U.S.C. 1101(b)(1)(C).

(3) In order to qualify as stepsiblings, either (1) the marriage which created the step-

relationships must continue to exist, or (2) where the parties to that marriage have

legally separated or the marriage has been terminated by death or divorce, a family

relationship must continue to exist as a matter of fact between the "stepsiblings."

(4) Since the petitioner and beneficiary once qualified as "children" of their stepmother/

mother and continue to maintain their family relationship, the beneficiary qualifies as

the petitioner's "sister" under section 203(a)(5) of the Act, 8 U.S.C. 1153(a)(5), even

though the record does not show whether the petitioner's father and the beneficiary's

mother are still alive and remain married.

ON BEHALF OF PETITIONER: Mary L. Sfasciotti, Esquire

815 — 57th Street

Kenosha, Wisconsin 53140

By: • Milhollan, Chairman; Maniatis, Maguire, Morris, and Vacca, Board Members

This matter is before the Board on appeal from the District Director's

decision of April 9, 1980, denying the petition to classify the beneficiary

as the sister of a United States citizen under section 203(a)(5) of the

Immigration and Nationality Act, 8 U.S.C. 1153(a)(5). The appeal will

be sustained.

The petitioner is a 52-year-old citizen of the United States who was

born out of wedlock in the British West Indies on December 16, 1928.

His parents never married, and only a few months after his birth his

mother left the household, never to return. The petitioner and his father

subsequently immigrated to Curacao, Netherlands Antilles (Dutch West

Incline). There, on July 22, 1942, his father married, and they all lived

together as a family unit until the petitioner came to the United States

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Interim Decision #2882

in late 1954. In September 1953, the beneficiary was born in Curacao to

the petitioner's father and stepmother. The petitioner and beneficiary

have apparently continued to maintain their family ties, with the record

reflecting that the beneficiary came to the United States in 1971 as a

nonimmigrant student and was residing with the petitioner at the time

the instant petition was filed on October 30, 1974.

The District Director correctly noted that in order to establish the

existence of a sibling relationship the petitioner must show that he and

the beneficiary are, or once were, "children" of a common "parent"

within the meaning of section 101(b)(1) and (2) of the Act, 8 U.S.C.

1101(b)(1) and (2). Matter of Huang, 15 I&N Dec. 145 (BIA 1974). The

District Director then examined the relationship_ of the petitioner and

beneficiary through their father, and concluded that they did not qualify

as siblings under the Act because the petitioner was illegitimate and had

not been legitimated by his father. Therefore, he denied the petition.

On appeal, the petitioner asserts that he was legitimated by his father

according to the law of Curacao, Netherlands Antilles. He also argues

that he and the beneficiary are qualified siblings by virtue of their

relationship through their other common parent, their stepmother/

mother.

The petitioner has now submitted for the record certain provisions of

Title XII, Book I of the Civil Code of Curacao ("the Code") which

pertain to paternity and filiation in Curacao, Netherlands Antilles.' The

petitioner contends that under either the legitimation provisions of Title

XII, section 2, or the acknowledgment provisions of section 3 of that

title, he qualifies as a legitimated child under section 101(b)(1)(C) of the

Act.2 A careful examination of these provisions reveals that this argu-

ment is without merit.

These materials were prepared by Dr. Karel Weamink, Legal Analyst in the European

Law Division, Law Library of the Library of Congress, and come from an 1875 translation,

J.H.R. Beaujon, grans., Civil Code for the Colony of Curacao (1875). Dr. Wenninh

indicates in his cover letter that, "The latest Dutch text available in the Library of

Congress and at the Embassy of the Netherlands in Washington, D.C., is dated 1950, and

a comparison of it with the translation shows that the appended text was still in effect in

1929 and 1936."

2 "The term 'child' means an unmarried person under twenty-one years of age who is—

(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 vorr.nts at the thus of such

legitimation."

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Under section 2 of the Code, legitimation of a child born out of wed-

lock occurs only by the subsequent marriage of the natural parents

together with a prior or contemporaneous acknowledgment of the child. 3

Upon legitimation, the child acquires the same rights as if he were

legitimate at birth 4 Thus, it is clear that because the petitioner's natu-

ral parents never married he has not been legitimated under the law of

Curacao, Netherlands Antilles.

As for the petitioner's acknowledgment claim, we note preliminarily

that the general rule outside of communist-bloc countries is that acknowl-

edgment alone does not constitute legitimation; there must also be a

subsequent marriage of the natural parents.' Matter of Van Pamlen,

12 I&N Dec. 11, 13 (BIA 1966). See, e.g., Matter of Reyes, 16 I&B Dec.

475 (BIA 1978); Matter of Quispe, 16 I&N Dee. 174 (BIA 1977); Matter

of Mandewirth, 12 I&N Dec_ 199 (BIA 1967); Matter of The, 10 I&N

Dec. 744 (BIA 1964). 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 (10th Cir. 1930), cert. denied, 283 U. S. 896

(1931). Only where acknowledgment places the child In the same status

as a legitimated child will acknowledgment be deemed the equivalent of

legitimation. See Matter uf Reyes, 171&N Dec. 512 (BIA 1980). Such is

not the case here. Acknowledgment under section 3 of the Code merely

creates "civil rights" between the acknowledged child and his parents."

While this term is apparently not defined, the acknowledgment provi-

sion, unlike the preceeding legitimation provision, does not declare that

an acknowledged child enjoys the same rights as if he were born

legitimate. Therefore, it must be said that because the law of the Neth-

erlands Antilles does not place an acknowledged child in the same sta-

tus as a legitimated child, it does not make acknowledgment the equiva-

lent of legitimation. This conclusion also finds support in the fact that

because the law of the Netherlands Antilles specifically differentiates

between acknowledgment and legitimation in the two statutory provis-

ions it is reasonable to presume, absent an affirmative showing to the

contrary, that the law does not create-a distinction without a difference.

See Zeigler Coal. Co. v. Kleppe, 536 F.2d 398, 406 (D.C. Cir. 1976) —

("[A] statute should not be construed in such a way as to render certain

provisions superfluous or insignificant."); EA D. Sands, Satkerland

Statutory Construction, section 46.06 (Rev. 3d ed. 1973).

' Title XII, § 2, art. 321. In the event that the parents neglected to acknowledge their

natural child at or before the time of their marriage, or where one of the parents dies

before their intended marriage, legitimation can occur by a "letter of legitimation" issued

by theGovernor, after consultation with the "high court of justice." Title XII, § 2, arts.

323 and 324.

Title XIL 4 2. art. 326.

5 Or, in some instances, a royal or presidential decree of legitimation will suffice.

6 Title XII, § 3, art. 329.

Interim Decision #2882

land Statutory Construction, section 46.06 (Rev. 3d ed. 1973).

In view of the foregoing, we find that the petitioner does not qualify

as a legitimated child under section 101(b)(1)(C) of the Act. Therefore,

he and the beneficiary do not qualify through their father as "brother"

and "sister" under section 203(a)(5) of the Act.

Turning next to the issue of the petitioner's relationship to the benefi-

ciary through their stepmother/mother, it is clear that the beneficiary

once qualified as the legitimate "child" of her mother under section

101(b)(1)(A) of the Act. As for the petitioner, section 101(b)(1)(B) defines

the term "child" as an unmarried person under the age of 21 years who

is a "stepchild, whether or not born out of wedlock, provided the child

had not reached the age of eighteen years at the time the marriage

creating the status of stepchild occurred." Here, the petitioner's natural

father married when the petitioner was 13 years of age, thus giving rise

to a valid stepmother/stepchild relationship under the Act. Matter of

McMillan, 17 I&D Dec. 605 (BIA 1981). Therefore, pursuant to Matter

of Hem', supra, at the time of the beneficiary's birth she and the

petitioner were qualified siblings as the "children" of a common "parent."

See Matter of Ferreira, 16 I&N Dec. 494 (BIA 1978); cf. Matter of

Bourne, 16 I&N Dec. 367 (BIA 1977).

One further issue remains. Unlike consanguineous relationships, step-

relationships can be terminated by the death 'or divorce of the parties

whose marriage created the step-relationship.' Thus, in the case of

stepsiblingss it is appropriate to determine not only whether the peti-

tioner and beneficiary were once the "children" of a common "parent,"

but also whether the marriage which created the step-relationships still

exists at the time the visa petition to accord the stepsibling classification

is being considered. Where that marriage does still exist, the stepsibling

'relationship likewise continues to exist. Difficulties arise, however, where

this is not the case.

In the context of stepparent and stepchild, we recently held that

where the parties to the marriage which created that step-relationship

have legally separated or where the marriage has been terminated by

divorce or death, the appropriate inquiry is whether a family relation-

ship has continued to exist as a matter of fact between the stepparent

and stepchild. Matter of Mowrer, 17 I&N Dee_ 612 (BIA 1981); accord,

7 See, e.g., Brotherhood of Locomotive F. & S. v. Hogan, 5 F. Supp. 598, 605 (D. Minn.

1934): "The relationship of stepchild and stepparent is predicated on marriage, as are all

other relationships of affinity. . . . The entire structure of relationship by affinity is based

on a subsisting marriage, not a dissolved one."

" While the petitioner and the beneficiary are indeed also half siblings by virtue of their

common father, they cannot qualify as brother and sister through him. See pp. 3 5, supra.

-

Therefore, they can only seek to qualify as stepsiblings through the petitioner's stepmother.

the beneficiary's mother.

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Brotherhood of Locomotive F. & E. v. Hogan, supra; see also Matter of

Pagnerre, 13 I&N Dec. 088 (BIA 1971). A similar inquiry is no less

appropriate in the case of stepsiblings. Accordingly, we hold that in

order to qualify as stepsiblings either (1) the marriage which created

the step-relationships must continue to exist, or (2) where the parties

to that marriage have legally separated or the marriage has been termi-

natea by death or divorce, a family relationship must continue to exist

as a matter of fact between the "stepsiblings." Whether the stepsiblings

continue to maintain a family relationship is a question of fact which

must be determined under the particular circumstances of each case.

Here, the record does not clearly show whether the petitioner's father

and the.beneficiary's mother are still alive and remain married. Never-

theless, as noted earlier, the record reflects that the petitioner and the

beneficiary do continue to maintain their family relationship, including

the fact that the beneficiary has lived with the petitioner during her

stay in the United States as a nonimmigrant student. Therefore, it has

been established that they were "children" of a common "parent" and

that their relationship as stepbrother and stepsister continues to exist.

Accordingly, the beneficiary qualifies as the petitioner's sister under

section 203(a)(5) of the Act.

ORDER The appeal is sustained and the petition is approved.

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