Matter of Atembe (Board decision, December 29, 1988)

Plain-English summary

A lawful permanent resident from Cameroon petitioned for preference status for his unmarried son, who was born outside marriage. The Board found that the petitioner had not shown that the child was legitimate at birth or had been legitimated under Cameroonian or New York law when the visa petition was filed. It explained that a later statutory amendment could recognize a qualifying natural-father relationship, but the existing petition could not be used because approval would give the beneficiary a priority date unavailable when the petition was filed. The Board dismissed the appeal and noted that the petitioner could file a new petition with proof of paternity and a bona fide parent-child relationship.

Decision snapshot

• Cited authorities: 8 U.S.C. §§ 1153(a), 1101(b)(1), and 1101(b)(1)(D)
• Outcome: The appeal was dismissed, and the denial of the visa petition remained in place.
• Key point: A later statutory change cannot give an earlier visa petition a priority date the beneficiary did not qualify for when it was filed.

Full text (BIA official public release)

Interim Decision #3023

MA1 ihR OF ATEMBE

In Visa Petition Proceedings

A-28369181

Decided by Board December 29, 1988

Notwithstanding the fact that an illegitimate child may qualify for immigration purposes as the "child" of his or her natural father following the amendment on November 6, 1986, of section 101(b)(1)(D) of the Immigration and Nationality Act, 8 U.S.C. 111.11(b)(1X.0) (19S2), provided paternity is established and the father "has or had a bona fide parent-child relationship" with the child, a visa petition filed prior to the effective date of the amend- ment may not be used to obtain preference status for the benefici- ary under section 203(a) of the Act, 8 U.S.O. § 1153(a) (1982), be- cause approval of the visa petition would give the beneficiary a pri- ority date to which he or she was not entitled at the time the visa petition was filed. Matter of Drigo, 18 I&N Dec. 228 (BIA 1982); and Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), followed.
ON BEHALF OF PETITIONER: ON BEHALF OF SERVICE:
Emiliano T. Deguzaaan, Esquire
Steven R. Abrams
299 Broadway, Suite 1215
District Counsel
New York, New York 10007

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

In a decision dated August 22, 1986, the Immigration and Natu- ralization Service Regional Adjudications Center ("RAC") director denied the visa petition filed by the petitioner to accord the benefi- ciary preference status as his unmarried son pursuant to section 208(a)(2) of the Immigration and Nationality Act, 8 U.S.C.
§ 1153(a)(2) (1982). The petitioner has appealed from that decision. The appeal will be dismissed. The petitioner is a native of Cameroon and lawful permanent resident of the United States. The record reflects that the benefici- it9.7
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ary was born in Cameroon of a relationship between the petitioner and a woman who was not then, and never became, his wife. To qualify as a "son" under the provisions of section 203(a)(2) of the Act, the beneficiary must qualify, or once have qualified, as the petitioner's "child" as that term is defined by section 101(b)(1) of the Act, 8 U.S.C. § 1101(b)(1) (1982). Section 101(b)(1) provides in part: 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.
The term "legitimate" applies only to children born in wedlock or to children born out of wedlock within jurisdictions that have eliminated all distinctions between legitimacy and illegitimacy. ,See generally Matter of Reyes, 17 I&N Dec. 512 (BIA 1980), and the cases cited therein. The term "legitimated" refers to the act of put- ting, by legal means, an illegitimate child in the position or state of a legitimate child in the eyes of the law. Where less than equality of status results, an act of legitimation is not deemed to have oc- curred. Id. The RAC director found that the petitioner had failed to estab- lish that the beneficiary was legitimate at birth or that he had been legitimated under the law of Cameroon or the law of New York, the petitioner's and beneficiary's present place of residence. We agree with the RAC director's findings. The petitioner does not claim that the beneficiary qualifies as his "legitimate" son and there has been no showing that compliance with the provision of Cameroon law relied upon by the petitioner accords a child born out of wedlock the full legal status of a legiti- mate child so that the child may be considered to have been "legiti- mated" for purposes of the immigration laws. Under the law of New York, legitimation can only be effected by the marriage of the child's natural parents. See Matter of Hernandez, 19 I&N Dec_ 14 (BIA 1983). On November 6, 1986, subsequent to the RAC director's decision in the instant case, the lumnigi ation Reform and Control Act of

I Part V, Chapter 1, Article 44 of the Official Gazette of the United Republic of Cameroon.

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1986, Pub. L. No. 99-603, 100 Stat. 3359, was signed into law. That legislation amended section 101(b)(1)(D) of the Act to recognize for immigration purposes the relationship of an illegitimate child to his or her natural father, as well as to his or her mother, 2 provided paternity is established and the father "has or had a bona fide parent-child relationship" with the child. Although the beneficiary may presently be entitled to classifica- tion as the child of the petitioner by reason of section 101(b)(1)(D) of the Act, as amended, the petitioner may not use the visa petition presently under consideration to obtain a benefit under the new provision. This Board has held that in order to be eligible for pref- erence status under section 203(a) of the Act, the beneficiary must be fully qualified for such classification at the time the visa peti- tion is filed to avoid giving the beneficiary a priority date to which he or she was not entitled at the time of filing. See Matter of Drigo, 18 I&N Dec. 223 (BIA 1982); Matter of Bardouille, 18 I&N Dec. 114 (BIA 1081). The petitioner may, of course, file a new visa petition on the beneficiary's behalf accompanied by proof of paternity and the existence of a "bona fide parent-child relationship." The appeal will be dismissed. ORDER: The appeal is dismissed.

2 Prior to its amendment, section 101(bX1XD) of the Act included within the defi- nition of the term "child" 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.