Interim Decision #1678 

Ma.) .1, t or VAR PAMLEN 

In Visa Petition Proceedings 

A-14913610 

Decided by Board December 21, 1966 

Since under the law of The Netherlands, petitioner, although acimorriedged by 

his natural parents following birth out of wedlock, has never been legitimated 

by the subsequent marriage of his parents, he is ineligible to file a visa petition 

to accord his half-sister preference status under section 203(a) (5) of the 

Immigration and Nationality Act, as amended, inasmuch as the common parent 

is the father. 

The case conies forward on appeal from the order of the Acting 

District Director, Frankfurt, Germany, dated September 15, 1966, 

denying the visa petition for the reasons that the relationship of 

brother and sister has not been established as defined in section 101(b) 

of the Immigration and Nationality Act; the visa petition does not 

satisfy the requirements of 8 CFR 204.2 (d) (4) ; and the petitioner is 

by definition not the son of the natural father since he was born out 

of wedlock. 

The petitioner, a native of Djakarta, Indonesia, born April 2, 

1936, male, is a naturalized citizen of the United States. He seeks 

preference quota status on behalf of the beneficiary as his sister, under 

section 203 (a) (5) of the Immigration and Nationality Act. The beneficiary was born on March 16, 1947 at Deventer, The Netherlands. 

The visa petition is supported by the birth certificate of the petitioner showing that he was born at Batavia, Indonesia on April 2, 

1936, the son of Jenny J. C. F. Van lieuven Van Staereling. Annotations on the birth certificate show that the birth was registered in 

the 1936 birth register of Batavia and was acknowledged by Wilhelmus Maurits Van Pamelen and his natural mother as their child. 

There is also enclosed an undated statement by the putative father of 

the petitioner explaining that due to several circumstances not to be 

disclosed a marriage between him and the natural mother of the petitioner never came into being, that eventually both parties separated 

from each other by mutual consent and since no marriage -was in11 

821-654-69-3 
Interim Decision #1678 

volved, divorce papers were not needed; as part of the agreement 

their child was recognized and given the father's surname. 

There has also been submitted a marriage certificate between the 

petitioner's father and Charlotte Florentinus at The Hague on August 26, 1953. Also the birth certificate of the beneficiary at Deventer, 

The Netherlands, on March 16, 1947 the daughter of Wilhelm Maurits 

Van Pamelen and Charlotte Florentinus. It is noted that the beneficiary's parents were married on August 26, 1953 and that the birth 

certificate contains the notation that By Order in Council dated June 9, 

1965 the beneficiary was granted permission to change her family 

name of Florentinus into Van Pamelen. 

The petitioner admits that the petition does not establish a brothersister relationship as defined in section 101 (b) (1) of the Act but complains that the criteria for such relationship is not set out in said 

section. Furthermore, he asserts he is legitimate by virtue of the 

acknowledgment. 

The regulations pertinent to visa petitions, 8 CFR 204.2(d) (4), 

provide that if a petition is submitted on behalf of a brother or sister, 

the birth certificate of the petitioner and the birth certificate of the 

beneficiary, showing a common mother, must accompany the petition. 

If the petition is on behalf of a brother or sister having a common 

father and different mothers, the marriage certificate of the petitioner's 

parents, and the beneficiary's parents, and proof of the legal termination of the parents' prior marriages, if any, must accompany the 

petition. 

The provision relating to brothers or sisters having a common 

mother set forth in the above regulation is predicated upon the fact 

that section 101(b) (1) (D) of the Immigration and Nationality Act, 

as amended, defines the term "child" to include an illegitimate child 

by virtue of its relationship to its natural mother. In addition, administratively we have held that illegitimate half brothers and sisters 

whose common parent is the mother qualify for preference quota 

status.1 

However, the regulation relating to brothers or sisters having a common father but different mothers requires the marriage certificate of 

the petitioner's parents and the beneficiary's parents as well as proof 

of the legal termination of the parents' prior marriages, if any. There 

is implicit in this requirement of a marriage certificate where the 

brother and/or sister have only a common father that the siblings be 

legitimate or legitimated children. 2 

While the term brother or sister in section 203 (a) (5) of the ImmiI Matter of C—, a L S. N. Dee. 755. 

' Matter of C—, 5 I. & N. Dee. 610. 

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Interim Decision #1678 

gration and Nationality Act is not defined, the provisions of the 

pertinent regulation, 8 CFR 204.2 (d) (4), together with the provisions 

of section 101(b) (1) (D) of the Immigration and Nationality Act, the 

administrative construction, and the fact that from an immigration 

standpoint an illegitimate child derives no benefit through its illegitimate father, the term brother and sister means only legitimate brothers 

and sisters of the full or half blood. It therefore becomes necessary 

to determine whether the petitioner, admittedly born out of wedlock, 

has been legitimated under the law of his residence or domicile or under 

the law of the father's residence or domicile (section 101(b) (1) (0) of 

the Immigration and Nationality Act). There is no claim advanced 

that the petitioner was legitimated under the law of the State of his 

residence in the United States. However, he claims to have been legitimated through acknowledgment by his father by, virtue of the execution of his birth certificate under the laws of The Netherlands. • 

The facts of the case were submitted to the Royal Netherlands Embassy at Washington, D.C. Information received from the Embassy 

indicates that by virtue of the father's and the mother's acknowledgment of the petitioner before the keeper of the civie'records, the child 

received a status, known in The Netherlands law as an "acknowledged 

child" which is best described as "partly legitimated." Examples are 

given of certain civil and legal benefits and responsibilities. However, 

the letter concludes that it does not appear that the child has been 

fully legitimated by a marriage after the acknowledgment of the abovementioned father and mother. It was farther ascertained that Article 

527 of the Civil Code of The Netherlands provides that a child born 

out of wedlock who has been acknowledged is automatically legitimated by the subsequent marriage of its natural parents. 

It is believed that the term "partly legitimated" used by the Embassy 

is an euphemism. The letter restates the general rule prevailing in 

countries, outside the Soviet or Communist sphere, that acknowledgment alone does not constitute legitimation. There must also be .the 

subsequent marriage of the natural parties or a royal or presidential 

decree.° 

It is therefore concluded that the illegitimate petitioner, who, although acknowledged, has never been legitimated by the subsequent 

marriage of his parents, is not eligible to file a visa petition for preference status under section 208(a) (5) of the Immigration and Nationality Act on behalf of his half sister, inasmuch as the common parent is 

3 Matter of J—, 7 I. & N. Dec. 338 (France) ; Matter of D—, 7 L & N. Dee. 438 

(Italy) ; Matter of F—, 7 1. & N. Dec. 448 (Portugal) ; Matter of TV—, 9 I. & 

Dec. 223 (Surinam) ; Matter of 0—, 9I. & N. Dec. 597 (Spain) ; Matter of The, 10 

I. & N. Dee, 744 (Indonesia). 

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Interim Decision #1678 

the father. We take note of the sympathetic factors set forth in the 

statement accompanying the appeal by the petitioner but we conclude 

that the present law does not permit favorable action.. There is no provision for any administrative discretionary action. 

However, we note that the nonpreference quota for The Netherlands 

is open. The petitioner, who is a captain in the United States Army, 

states that he desires the beneficiary to come into the United States to 

take care of his pregnant wife. 

ORDER: It is ordered that the appeal be and the same is hereby 

dismissed. 

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