Interim Decision #2297 

MATTER OF DELA ROSA 

In Visa Petition Proceedings 

A-19372117 

Decided by Board June 18, 1971 

(1) The legal custody requirement of section 101(b)(1XC) of the Immigration and 

Nationality Act, as amended, is mandatory. In order to qualify as a "child" 

under section 101(bXI)(C), the legitimated child must have been in the legal 

custody of the legitimating parent at the time of legitimation. 

(2) In the absence of affirmative evidence that he had legal custody of the 

beneficiary at the time of legitimation, petitioner has failed to meet the 

burden of establishing that beneficiary, who was born out of wedlock in 

Panama in 1956 and legitimated under the law of Panama in 1957, is his 

"child" within the contemplation of section 101(b)(1XC) of the Act, as amended. 

Accordingly, beneficiary is ineligible for immediate relative status under 

section 201(b) of the Act. 

The United States citizen petitioner applied for immediate 

relative status for the beneficiary as his child under section 201(b) 

of the Immigration and Nationality Act. In a decision dated 

October 5, 1973, the District Director denied the petition on the 

ground that the petitioner had never married the beneficiary's 

mother and therfore had not established the required relationship 

to the beneficiary. The petitioner has appealed from that denial. 

The appeal will be dismissed. 

Section 101(b)(1XC) defines the term "child" as including 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 age of 18 years and the child is in the legal custody of the 

legitimating parent or parents at the time of such legitimation. 

The beneficiary was born in Panama on August 26, 1956 to the 

petitioner and a woman who was not his wife. The beneficiary's 

birth certificate states that the petitioner declared paternity 

before an official of the Civil Registry of Colon on March 14, 1967. 

Under the law of Panama, the petitioner's declaration established 

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the beneficiary's legal status as the petitioner's legitimated child. 

Matter of Sinclair, 13 I. & N. Dec. 613 (BIA 1970).' 

However, in order to qualify as a "child" under section 

101(bXl)(C), the beneficiary must have been in the legal custody of 

the legitimating parent at the time of legitimation. The legal 

custody requirement of section 101(bX1XC) was considered by the 

Board in an unpublished decision, Matter of Harris, A18 953 024 

(BIA November 6, 1970). In that case we noted that the statutory 

langugage was mandatory? We stated that "legal custody" may 

vest by virtue of either a natural right or a court decree. We 

further stated that the mother of an illegitimate child generally 

has the primary right to its custody, 3and in the absence of 

affirmative evidence that the father has obtained custody, we will 

not presume that the mother has been deprived of custody. 

The petitioner has submitted an affidavit stating that he has 

supported the beneficiary since birth. He states in the Notice of 

Appeal that although a visa was issued to the beneficiary at the 

time the petitioner left Panama in 1965, she did not accompany the 

petitioner at that time because her mother did not wish her to 

leave. The record also contains a document signed by the beneficiary's mother, dated December 2, 1969, authorizing the petitioner 

to bring the beneficiary to the United States. 

In visa petition proceedings, the petitioner has the burden of 

establishing eligibility for the benefit conferred by the immigration laws. Matter of Brarttigan, 11 I. & N. Dec. 493 (BIA 1966). 

Nothing in the record before us indicates that the petitioner had 

legal custody of the beneficiary at the time of legitimation. In fact, 

the necessity of receiving the permission of the beneficiary's 

mother in order to bring her to this country indicates that the 

mother, rather than the petitioner, had legal custody of the 

beneficiary. 

The petitioner has not established that the beneficiary is his 

"child" under section 101(bX1)(C) of the Act. Consequently, the 

appeal will be dismissed. If the petitioner is able to obtain legal 

custody and legitimate the beneficiary under the law of his 

present residence before she reaches the age of 18, he can submit a 

new petition in her behalf. 

ORDER: The appeal is dismissed. 

1 In Matter of Kubieka, Interim Decision No. 2189 (BIA, 1972), we held that the 

term "legitimate" refers solely to a child born in wedlock. A child born out of 

wedlock who attains status as a legitimate child by some affirmative act on the 

part of his parent or parents is considered to be "legitimated." Therefore, the 

beneficiary is a "legitimated" child and the provisions of section 101(bX1XC) of the 

Act are applicable. 

2See also S. Rep. No. 1515, 81st Cong., 2d Sess. 468 (1950). 

See 10 Am. Jur. 2d Bastards sections 60 and 62; 10 C.J.S. Bastards section 17b 

and 17c; Annot., 37 A.L.R. 2d 882 (1954); Annot., 51 A.L.R. 1507 (1927). 

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Interim Decision #2297 

Maurice A. Roberts, Chairman, Dissenting: 

I respectfully dissent. In my estimation, the Board has placed an 

unduly restrictive construction on the phrase "legal custody of the 

legitimating parent" in section 101(b)(1)(C). Such a narrow construction detracts from the ameliorative intent of Congress in 

enacting this remedial provision. 

The term "legal custody" is not defined in the Act. The majority 

opinion refers to the Board's unpublished opinion in Matter of 

Harris, A18 953 024 (BIA November 6, 1970). In my dissenting 

opinion in that case, I pointed out that, while the legislative 

history of the requirement was sparse, "it is fairly inferable that 

the purpose of the 'legal custody' requirement was to prevent 

abuse through ad hoc legitimation by a putative father who had 

had little or no contact with the child and who had obtained the 

legitimation solely for the purpose of circumventing the immigration laws." 

As I noted in Harris, Congress did not specify that a parent 

must have "actual custody" or "physical custody," or even "custody." It could be argued that the use of any of the preceding 

terms would have required the legitimating parent to have actual 

physical custody of the child at the time of legitimation. In my 

opinion, however, "legal custody" connotes the legal rights and 

responsibilities incident to parenthood. Such rights and responsibilities may exist either in conjunction with or independently from 

actual "physical custody." See e.g., Burge v. City and County of 

San Francisco, 41 Cal. 2d 608, 262 P2d 6, 12-13 (1953); Donnelly v. 

Blankenstein, 167 Cal. App. 2d 282, 334 P2d 260, 262 (1959). 

It has long been the view under the immigration laws that 

"legal custody" is separable from actual "physical custody." The 

two-year "legal custody" requirement for adoption under section 

101(bX1XE) of the Act may be fulfilled even though the adoptive 

parents and their child have resided apart, in different countries 

separated by thousands of miles, during that period. Matter of M—, 

8 L & N. Dec. 118 (BM 1958; AG 1959). 

I have no quarrel with the majority's statement that the mother 

of an illegitimate child generally has a primary right to its custody 

(although I question whether this is necessarily a universal rule). 

That situation, however, is quite distinct from the one in which a 

father has legitimated his child. In my view, the act of legitimation, if it is bona fide and creates a legal status identical to that of 

a child horn in wedlock, vests "legal custody" in the legitimating 

parent. See e.g., In re Navarro, 77 Cal. App. 2d 500, 175 P2d 282, 

334 P2d 260, 263 (1959); 10 Am. Jur. 2d Bastards section 66; 10 

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C.J.S. Bastards sections 14 and 17c; a In re Sutton, 132 W. Va. 875, 

53 S.E. 2d 839 (1949); Allison v. Bryan, 21 Okla. 557, 97.P. 282 (1908). 

It has been recognized that when, due to legitimation, a child's 

status in relation to his father becomes that of a child born in 

wedlock, the right of the natural mother to exclusive legal custody 

is modified. See In re Navarro, supra: Donnaily v. Blankenstein, 

supra. I deem this to be especially true in the present case, since, 

according to the Library of Congress, the law of Panama does not 

permit any classification based on legitimacy, and all children 

whose parentage has been established are legitimate and have an 

identical legal status in relation to their parents. Articles 58 and 

59 of the Panamanian Constitution of 1946; Law 60 of 1946 

(Panama); see Matter of Sinclair, 13 I.& N. Dec. 613 (BIA 1970). 

The mother may retain physical custody, but she no longer has the 

right to exclusive legal custody unless a court so decrees. 

What the majority has done is to establish a very strong 

presumption that no father can be said to have "legal custody" of 

his legitimated child if the child's natural mother is still alive. 

Evidently, the majority would allow a father who has legitimated 

his child to rebut this presumption against. legal custody at the 

time of legitimation only by showing that he obtained a court 

decree awarding "legal custody," or that "legal custody" vested in 

him by virtue of some "natural right," whateyer the latter term 

may encompass. This view appears to ignore the legal effect of 

legitimation under the applicable domestic law, and tends to 

equate "legal custody" with "physical custody." 

It is my opinion that "legal custody" vested in the petitioner at 

the time he legitimated the beneficiary in accordance with the law 

of Panama. The question remains whether the vesting of legal 

custody by the act of legitimation satisfied the requirement that 

the beneficiary be in the legal custody of the petitioner "at the time 

of such legitimation." I conclude that it did. 

In making "legal custody" a requisite for legitimation under 

section 101(bX1)(C), Congress must have contemplated the existence of some procedure by which a father who is acting in good 

faith could readily satisfy such a requirement. It seems to me that 

the primary way in which a putative father may go about 

regularizing his status and obtaining "legal custody" of his child is 

through the process of legitimation. To say that the vesting of 

legal custody at the time of legitimation is insufficient, and that 

the father must have established legal custody by another method 

prior to legitimation, would be inconsistent with the ameliorative 

intent of Congress in enacting section 101(bX1XC). 

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In similar situations involving adoptions under section 

101(bX1)(E) of the Act, both the Attorney General and this Board 

have stated that remedial legislation should be given a liberal 

interpretation so as to carry out the congressional intent. See 

Matter of Y—K—W—, 9 L & N. Dec. 176 (AG 1961); Matter of M—, 

supra. The construction adopted by the majority, if consistently 

observed in all cases, would severely restrict the application of the 

remedial provisions of section 101(bX1)(C). 

The beneficiary was allegedly born as the result of a non-marital 

relationship between the petitioner and the beneficiary's mother. 

Shortly after the beneficiary's birth, the petitioner took all necessary steps to legitimate her under the law of Panama. The 

petitioner was personally present in Panama at the time of the 

beneficiary's birth, at the time of the legitimation, and for some 

years thereafter. Since the legitimation took place well in advance 

of the petitioner's entry into the United States for permanent 

residence, his action hardly appears to have been undertaken to 

obtain immigration benefits. According to the petitioner, he has 

supported the child since birth. I do not take the petitioner's 

submission to the wish of the beneficiary's mother not to have her 

leave Panama with the petitioner in 1965 as establishing that the 

mother had exclusive legal custody of the beneficiary at that date 

or at the time of legitimation. 

In short, the petitioner took all necessary steps to establish the 

beneficary's status as his legitimated daughter under the applicable domestic law, years in advance of seeking immigration benefits. He has apparently alWays treated her as his daughter. We are 

not faced with a situation where an individual secures ad hoc 

legitimation of a child he has seldom or never seen, at a late date, 

in order to circumvent the immigration, laws. Yet, in spite of the 

fact that the petitioner has done all that could reasonably be 

expected of him, immigration benefits are being denied because of 

the restrictive construction placed on the "legal custody" requirement of section 101(bX1XC). I do not believe that this is what 

Congress had in mind when it enacted that section. 

I note that the "legal custody" requirement has been a part of 

section 101(b)(1XC) since the inception of the Act in 1952. Despite 

that fact, there is to my knowledge no published case in which the 

Board has denied status under section 101(b)(1XC) solely because 

of a failure to comply with the "legal custody" requirement. On the 

other hand, in several cases status has been granted to children 

legitimated under the applicable domestic law without apparent 

regard to "legal custody" as defined by the majority. See e.g., 

Matter of K—, 8 I. & N. Dec. 73 (BIA 1958); Matter of 9 I. & N. 

Dec. 518 (BIA 1961); Matter of Chojnowski, 11 I. & N. Dec. 287 (BIA 

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1965); Matter of Jancar, 11 L & N. Dec. 365 (BIA 1965); Matter of 

DeF—, 6 I & N. Dec. 325 (B IA 1954); Matter of Palacio, 11 I. & N. 

Dec. 183 (B IA 1965); Matter of Pableo, 12 L & N. Dec. 503 (DD 1967); 

Matter of Garcia, 12 I. & N. Dec. 628 (BIA 1968); Matter of B —, 5 I. 

& N. Dec. 698 (BIA 1954); Matter ofD—M--, 7 I. & N. Dec. 441 (BIA 

1957). 

Moreover, in some of these cases it is doubtful whether the 

fathers would have been able to meet the requirement laid down 

by the majority. 

For example, in Matter of K—, supra, the beneficiary was born 

out of wedlock to the petitioner's fiancée in Poland in 1939. The 

petitioner left Poland for good when the beneficiary was three 

months old without having married the beneficiary's mother. He 

acknowledged the beneficiary in 1948 by sending a document to 

the Polish authorities while he was in England and the beneficiary 

was apparently still in Poland. The Board concluded that the 

requirements of the immigration law had been met and granted 

the petition. I submit that it is impossible to reconcile this result 

with the narrow view of "legal custody" which the Board is 

presently adopting. 

In Matter of Jancar, supra, the petitioner acknowledged the 

beneficiary in Yogoslavia when the child was five months old. He 

then left Yugoslavia never to return. The Board held that the 

child became legitimated under Yugoslavian law when she was 

five months old. The issue of legal custody at the time of legitimation was never raised by the Board, despite the fact that the 

District Director had mentioned the legal custody requirement in 

his denial of the visa petition. Once again, it appears that the 

result is in conflict with the majority opinion. 

I have merely cited several obvious examples in which the 

construction adopted by the majority conflicts with past decisions. 

The majority position seemingly would require the reversal of the 

results in such cases, where legitimated child status has heretofore been granted, if similar situations arise after today's decision. 

It is my view that the petitioner has legitimated the beneficiary 

in accordance with the requirements of section 101(bX1XC) of the 

Act. Therefore, I would sustain the appeal and grant the petition. 

Louisa Wilson, Member Dissenting: 

I concur in the dissenting opinion of the Chairman, and would 

sustain the appeal and grant the petition. 

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