JULIANUS

Interim Decision #2227

MATTER OF JULIANUS

In Visa Petition Proceedings

A-11753637

Decided by Board September 14, 1973

Under the law of Guadeloupe, French West Indies, legitimation of a child born

out of wedlock is accomplished by the subsequent marriage of his father and

mother.

. ON BEHALF OF PETITIONER: Ben Carter, Esquire

138 E. Court Street

Room 327 Temple Bar Bldg.

Cincinnati, Ohio 45202

The permanent resident petitioner applied for preference status

for the beneficiary as his unmarried son under section 203(aX2) of

the Immigration and Nationality Act. The District Director denied

the application in an order dated May 1, 1972. The petitioner

appeals from that decision. The appeal will be dismissed.

The beneficiary is a native of Guadeloupe, French West Indies

and a citizen of France. The record indicates that the petitioner

was never ceremonially married to the beneficiary's Mother. The

petitioner's residence and domicile are in Ohio.

The issue presented in this appeal is whether the beneficiary

qualified as a "child" for purposes of the immigration laws when

he was under the age of 21, for he must have been a "child" then

in order to qualify as an unmarried son now. See Matter of R—, 5 L

& N. Dee. 435, 439 (BIA, 1953).

The term "child" is defined in section 101(b)(1) to include any

unmarried person under 21 years of age who is—

(A) a legitimate child: or

(B) a stepchild ...; 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; or

(D) an illegitimate child ... on whose behalf a status, privilege, or benefit is

sought by virtue of the relationship of the child to its natural mother; or

(E) a child adopted ...

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Interim Decision #2227

Subparagraphs (B), (D), and (E) dearly are inapplicable to the

present case. The petitioner claims that the beneficiary is a

legitimated child, although he presented no evidence to show

legitimate birth or legitimation under the law of either the

beneficiary's or the petitioner's residence or domicile.

With respect to the laws of Guadeloupe, the residence and

domicile of the beneficiary, the beneficiary does not qualify as a

legitimated child. Clearly, the beneficiary was not a legitimate

child at birth, since his parents were not married to each other,

and children born out of wedlock are legitimated only by the

subsequent marriage of their father and mother, Article 221,

French Civil Code. 1 This provision was in force in Guadeloupe at

all relevant times including when this application was made, and

until January 3, 1972. On that date the wording of this provision

was changed slightly because of the enactment of a law on

filiation, but not in such a way as would affect the outcome of this

case. 2

The petitioner claims that the beneficiary was legitimated ac-

cording to the laws of Ohio, alleging that because Ohio recognizes

common law marriages, the beneficiary was somehow legitimated.

However, he presents no evidence regarding either common law

marriage or legitimation under Ohio law. The petitioner states in

his petition that he never lived with the beneficiary's mother in

the United States. His own residence in Ohio is not sufficient basis

to claim the existence of a common law marriage under that

state's law. Therefore, it appears that the beneficiary has not been

legitimated in accordance with Ohio law.

It is well settled that an illegitimate child gains no benefits

under the immigration laws on the basis of its relationship to its

father, Matter of C-, 5 I. & N. Dec. 610 (BIA, 1954). Since a parent-

child relationship, as defined by the immigration laws, was never

formed, the beneficiary does not qualify as an unmarried son for

purposes of section 203(a)(2) of the Act.

Counsel claims in his brief that in 1969 a government official led

the petitioner to believe that all he needed to do to accord the

1 Article 331 of the French Civil Code (Law of April 25, 1924): "Children born

outside of marriage, other than those born of adulterous intercourse, shall be

legitimated by the subsequent marriage of their father and mother when the

latter have acknowledged them before their marriage or when they acknowledge

them at the time of its celebration ...."

2 Article 331 of the French Civil Code (Law of January 3, 1973): "All children

born outside of marriage shall be legitimated by operation of law by the

subsequent marriage of their father and mother.

"If their filiation was not already established, these children shall be the

object of the acknowledgment at the time of celebration of marriage ...."

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Interim Decision #2227

beneficiary legal status as his son for immigration purposes was to

wait until the boy was 18 years old. He alleges that the petitioner

was not informed that he would have to legitimate his son before

the boy reached the age of 18. He contends that, because the

petitioner relied to his detriment on the official's statement, the

Government should be estopped from barring the youth's admis-

sion now. However, there is no evidence in the record to substanti-

ate these assertions, and the burden to establish eligibility for

benefits sought under the immigration laws falls upon the peti-

tioner in visa petition proceedings, Matter of Brantigan, 11 I. & N.

Dec. 493, 495 (BIA, 1966); Matter of Yee, 11 I. & N. Dec. 27,

30 (BIA, 1964).

Accordingly, we agree with the District Director that the peti-

tioner has failed to establish the beneficiary's eligibility for the

preference he seeks, and therefore we shall dismiss the appeal.

ORDER: The appeal is dismissed.

437