ALEO

11 I. & N. Dec. 455

• Court: Board of Immigration Appeals
• Decided: July 1, 1965
• Docket: 1542
• Status: Published

Opinion

• Interim Decision #1542

Minima of ALE° In Visa Petition Proceedings A-13912092 Decided by Board December 1, 1985 Petition by a II. S. citizen to accord pc/agnate status as a stepchild to the alleged illegitimate mad or her haaband by another woman to whom be was never married, and who has not otherwise been legitimated, is denied since, other than the statement of petitioner's husband that he is the father of the child, there is no evidence to support such eligm; and the evidence fails to establish the existence of a family unit, the beneficiary, following the death of her mother, having been cared for by her maternal grandmother. Cf. Matter of rho, Int. Dee. 'No. 1641.

The case comes forward on appeal from the order of the District Director, New York District, dated September 2, 1965 denying the visa petition for the reason £hat the petitioner's husband was never married to the henefioiailoo mother and she has not otherwise been legitimated; therefore, the beneficiary cannot derive a benefit through the petitioner and it is concluded that the beneficiary is not a child- as defined. in section 101(b) of the Act. The petitioner, a native-born citizen, of the United -StateS, seeks nonquota status on behalf of the beneficiary as hqr stepdaughter. ,

The beneficiary is-a native and citizen of Italy, born December PI, 1950. The petitioner was married. on October 1, 1955 to Angelo Reins and the beneficiary is alleged - to be his natural daughter. In a. supporting affidavit the petitioner's husband states that he became acquainted and intimate with Elena Vainly, in 1948; that the rela- tionship continued until early in 1950; that Elena Want was mar- ried and her husband had abandoned her; that in May 1950 he left Castelvetrano and at that time Elena Vaiana told him that she was pregnant and he knew that she was to have his child; that he learned that she gave birth to a baby girl *ht.= she named Carmel% after his mother. There have been submitted a birth certificate relating to the b6ne- ficiary showing her birth as Decend;ix 'T, 1950 at Castelvetrano, 455 Interim Decision #1542 Trapani, Italy, the daughter of Filippo and Elena Vaiana. There has also been submitted a certificate of the death of the beneficiary's natural mother, Elena Vaiana, the daughter of Lorenzo and Fran- - cases Guarino, on June 9, 1952 at Castelvetrano, Thera has also been submitted a Confession or Declaration of Accountability by Notarial Act executed by Francesca Guarino stating that from 1952, after the death of the -mother, Carmela Aleo, 14 years old, has been provided sufficiently and under her firm control, under her normal income without 'benefit of any additional funds because Car- • mela Aleo is her grandchild. The petitioner, by virtue of her marriage to her husband on Octo- ber 1, 1955, claims thereby to have become the stepmother of the beneficiary, his alleged illegitimate child. However, other than the affidavit of the husband, there is.no evidence to support this claim. The birth certificate of the beneficiary clisoloses•.that her father is Filippo Aleo and her mother is Elena Vaiana. No reference is made in this birth certificate to the petitioner's husband, Angelo Reina. The "Declaration of Accountability" shows that the maternal grand- mother, Francesca Guarino, has had the care of the beneficiary since 1952 after the death of her mother, under normal income without benefit of any additional funds because the beneficiary is her grand- child. . Even. if the statement by the petitioner's husband that he was the father of the child were accepted, despite the very strong presumption of legitimacy attaching to a birth • occurring during :wedlock, it would appear that the child, under Italian law, would be an adulterine-child according to Article 252 of th6 Italian Civil Code of 1942? The petitioner's counsel has cited "the case of Nation v. &Tardy, 239 F. Supp. 531 (S.D. N.Y., March 1965), as supporting his posi- tion. One of the most persuasive factors in the Nation case was -the existence of a family unit. The facts in the' nstant case clearly do not bring it within the scope of the holding in the Nation case. The petition will be denied for the reason that the evidence fails to estab- lish a. stepmother-stepchild relationship between the petitioner and the beneficiary. The appeal will be dismissed. ORDER: It is ordered that the appeal be and the shine is hereby dismissed. 'Article 252 provides that adulterine children, to wit, those, who are pro- duced .by an unlawful connection between two persons, who at the time the child was begotten were either of them or both married to another person, may be acknowledged at any time by the parent who was not married when the child was begotten and by the other parent only after his marriage is dissolved by the death of the other spouse. There is no documentary evi- deuce of acknowledgment of paternigv_by the putative father for support.