VIZCAINO

19 I. & N. Dec. 644

• Court: Board of Immigration Appeals
• Decided: July 1, 1988
• Docket: ID 3061
• Status: Published

Opinion

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.