Interim Decision #2730 

MATTER OF CHAMBERS 

In Visa Petition Proceedings 

A-22193564 

Decided by Board September 28, 1979 

(1) Under section 1-208 of the Estates and Trusts Article of the Maryland Code, an 

illegitimate child is considered to be the child of his father if the father (1) has been 

judicially determined to he the father in paternity proceedings; (2) has acknowledged 

himself, in writing, to be the father; (3) has openly or notoriously recognized the child 

to be his child; or (4) has subsequently married the mother and has acknowledged 

himself, orally or in writing, to be the father. 

(2) Section 1-208 of the Estates and Trusts Article of the Maryland Code, although 

contained in an inheritance statute section of the Maryland Code, is a legitimation 

statute, under which legitimation may be accomplished by any one of four enumerated methods for the purpose of obtaining immigration benefits. 

(3) Where, prior to the beneficiary's 18th birthday, the petitioner signed an affidavit 

acknowledging that he is the beneficiary's father, openly recognized the beneficiary as 

his daughter from her childhood, and continues to provide a home and support for her, 

the beneficiary has been legitimated in accordance with the law of Maryland. 

(4) Where the beneficiary's mother formally relinquished custody of the beneficiary by 

giving her written consent to have the beneficiary live in the United States with the 

petitioner and the beneficiary resided with the petitioner in the United States for five 

years, during which the petitioner openly recognized the beneficiary as his daughter 

and legitimated her, the petitioner had legal custody of the beneficiary, and the 

legitimation will be recognized under section 101(b)(1)(C) of the Immigration and 

Nationality Act. 

ON BEHALF OF PETITIONER: Hal Walls, Jr., Esquire 

4604 Georgia Avenue, N.W. 

Washington, D.C. 20011 

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire and Farb, Board Members 

The petitioner appeals from a decision of the District Director dated 

February 26, 1979, in which the visa petition filed on behalf of the 

beneficiary as his daughter was denied on the ground that she was 

illegitimate and could not qualify as his child within the meaning of 

section 101(b)(1) of the Immigration and Nationality Act, 8 U.S.C. 

1101(b)(1). The appeal will be sustained. 

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The record reflects that the petitioner is a 40-year-old native of 

Jamaica' who currently resides in Maryland. The beneficiary is a 

native and citizen of Jamaica who was born out of wedlock on April 17, 

1961. The record reflects that the beneficiary has resided in the United 

States with the petitioner during the past five years. 

The District Director's denial of the visa petition was based upon his 

finding that the beneficiary was illegitimate at birth and that there 

was no evidence of her legitimation in accordance with the law of 

either the petitioner's or the beneficiary's residence. It was the District 

Director's conclusion that legitimation could only be accomplished 

under the law of Jamaica by marriage of the child's natural parents, 

and under the law of Maryland by marriage of the parents, formal 

adoption of the child by the parents, or legal proceedings to obtain a 

judicial declaration of legitimacy. 

In an affidavit dated November 9, 1978, the petitioner acknowledged 

that he is the beneficiary's father and stated that he has never been 

married to her mother. Although the beneficiary's birth certificate 

does not include the name of her natural father, the petitioner has 

submitted a second affidavit, dated August 2, 1979, explaining that he 

was not in Jamaica at the time of the beneficiary's birth, so under 

Jamaican law his name could not be placed on her birth certificate. In a 

signed affidavit, dated January 11, 1979, the beneficiary's mother confirmed the petitioner's claim that he is the beneficiary's natural father 

and stated her desire to have the beneficiary live with her father in the 

United States. In addition, the petitioner has submitted the affidavit of 

a lifelong friend which avers that the petitioner has always provided 

support for the beneficiary and has openly recognized her as his child 

both in Jamaica and Maryland, a fact which he claims is well known in 

both communities. 

In visa petition proceedings, the burden of establishing the claimed 

relationship is on the petitioner. Matter of Brantigan, 11 I&N Dec. 493 

(BIA 1966). Thus, in order to accord the beneficiary immigration 

benefits, the petitioner must prove that she qualifies as his child within 

the meaning of the Act. The applicable statute is section 101(b)(1) 

I We are unable to determine the petitioner's citizenship from the record. The Form 

I-130E, Petition To Classify The Status Of An Alien Relative For The Issuance Of An 

Immigrant Visa, submitted by the petitioner, provides only for a United States citizen to 

indicate the means by which his citizenship was acquired. It does not affirmatively 

indicate whether the petitioner is a lawful permanent resident of the United States or 

what his citizenship is if he is not a United States citizen. Thus, it does not permit us to 

accurately ascertain whether the visa petition was filed to accord the beneficiary immediate relative status under section 201(b) of the Act, 8 U.S.C. 1151(b), or preference 

status under section 203(a)(2), 8 U.S.C. 1153(a)(2). We believe, therefore, that this form 

does not adequately apprise the Board of information which, in many circumstances, is 

essential to a proper determination of the case on appeal. 

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which provides in pertinent part: 

(1) The term "child" means an unmarried person under twenty-one years of age who 

is— 

(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.... 

Therefore, the petitioner must prove that the beneficiary has been 

legitimated in accordance with the law of either Jamaica or Maryland 

prior to her 18th birthday and that the petitioner had legal custody of 

the beneficiary at the time of legitimation. 

On appeal, counsel for the petitioner argues that the District 

Director erred in concluding that judicial proceedings or marriage of 

the parents is required in order to accomplish legitimation of an 

illegitimate child under the law of Maryland. He contends that the 

Maryland law now in effect permits a father to legitimate his child by 

acknowledging himself to he the father in writing or by openly and 

notoriously recognizing the child as his. 

In light of the petitioner's representations made on appeal we have 

examined the law of Maryland to determine the legal requirement for 

legitimation in that state. Section 1-208 of the Estates and Trusts 

Article of the Maryland Code provides: 

Illegitimate child. 

(a) Child of his mother.—A child born to parents who have not participated in a 

marriage ceremony with each other shall be considered to be the child of his mother. 

(b) Child of his father.—A. child born to parents who have not participated in a marriage ceremony with each other shall be considered to be the child of his 

father only if the father 

(1) Has been judicially determined to be the father in an action brought under the 

statutes relating to paternity proceedings; or 

(2) Has acknowledged himself, in writing, to be the father; or 

(3) Has openly and notoriously recognized the child to be his child; or 

(4) Has subsequently married the mother and has acknowledged himself, orally or 

in writing, to be the father. 

Md. Est. & Trusts Code Ann. sectien. 1-208 (1974). 

Recent Maryland cases have established that this statute, although 

contained in an inheritance statute section of the Maryland Code, is 

not limited in its scope and application to matters of inheritance only. 

See State v. Rawlings, 38 Md. App. 479, 381 A.2d 708 (Md. 1978); 

Williams v. Williams, 18 Md. App. 353, 306 A.2d 564 (Ct. Spec. App. 

1972); Thomas v. Solis. 263 Md. 536, 283 A.2d 777 (Md. 1971); Dawson v. 

Eversberg, 257 Md. 308, 262 A.2d 729 (Md. 1970); see also, Holloway v. 

Safe Deposit and Trust Co., 134 A..497 (Md. 1926). In these cases, the 

statute has been held applicable to accomplish the legitimation of a 

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Interim Decision #2730 

child for purposes of determining the right of the father to visit his 

child and to prevent its adoption or removal by the mother, the right of 

a mother to obtain support for the child, and the criminal liability of 

the father for nonsupport. 

The United States District Court for the District of Maryland has 

also ruled that section 1-208 is a legitimation statute, under which 

legitimation may have been achieved by any one of the four enumerated methods in order to render a child eligible for benefits as the 

surviving child of its father under the Social Security Act. Allen v. 

Califano, 462 F. Supp. 205 (D. Md. 1978); Massey v. Weinberger, 397 F. 

Supp. 817 (D. Md. 1975); see also, Thomas v. Solis, supra. 

As support for the conclusion that section 1-208 is a general legitimating statute, both the Maryland and the United States District 

Courts have cited a provision in the Courts and Judicial Proceedings 

section of the Maryland Code which states: 

(a) Jurisdiction of court of equity.—A court of equity has jurisdiction over the 

custody, guardianship, legitimation, maintenance, visitation and support of a child. In 

exercising its jurisdiction, the court may 

(2) Determine the legitimacy of a child, pursuant to section 1 -208 of the Estates 

and Trusts Article of this Code. 

Md. Cts. & Jud. Proc. Code Ann. section 3-602 (1974). 

In addition, The Second Report of the Governor's Commission to 

Review and Revise the Testamentary Law of Maryland (1968) compared the new statute to the previous legitimation statute, Md. Ann. 

Code Art. 46, section 6 (1957), noting that: 

The only change in substance made in this Section is the inclusion of a provision 

permitting an illegitimate child to inherit from a father who has been adjudicated as 

the father in a proceeding brought for that purpose or who has been judicially ordered 

to support the child. This Section also spells out more fully the procedure for legitimation by acknowledgment without a subsequent marriage as ... [was formerly] required by the Maryland law. It reflects the modern policy in the direction of mitigating 

the impact of illegitimacy. 

Having considered these interpretations of Section 1-208 of the 

Maryland Code, we are convinced that legitimation can be accomplished under Maryland law not only by a judicial determination of 

legitimation in paternity proceedings or by marriage of the illegitimate child's parents, but also by the father's acknowledgment of the 

child in writing or his open and notorious recognition of the child as his 

own. We must, therefore, determine whether the petitioner has complied with the statutory requisites for legitimation under Maryland 

law. 

On November 9, 1978, prior to the beneficiary's 18th birthday, the 

petitioner signed an affidavit acknowledging that he is the benefici120 
Interim Decision #2730 

ary's father. The affidavit of the petitioner's friend also avers that the 

petitioner has openly recognized the beneficiary as his daughter from 

her childhood and that he continues to provide a home and support for 

her at this time. Thus, it appears that two of the statutory provisions 

under Maryland law have been satisfied. Since these acts of legitimation occurred prior to the beneficiary's 18th birthday, we conclude that 

the beneficiary has been legitimated in accordance with the law of 

Maryland. 

The only remaining issue is whether the beneficiary was in the 

petitioner's legal custody at the time legitimation took place. 

The beneficiary has resided in the United States with the petitioner 

for five years, during which time the petitioner has continuously 

recognized her as his daughter. On January 11, 1979, the beneficiary's 

mother formally relinquished custody of the beneficiary in a signed 

affidavit, giving her consent to have the beneficiary live in the United 

States with the petitioner. Since the putative father of an illegitimate 

child has a right to custody of the child superior to all but the mother, 

the petitioner obtained legal custody of the beneficiary as of that date. 

See Matter of uenaventura, 16 I&N Dec. 456 (BIA 1977); ef, Matter of 

Dela Rosa, 14 I&N Dec. 728 (BIA 1974). The petitioner's open recognition of the beneficiary as his child thereafter constitutes an act of 

legitimation under Maryland law. Since that act occurred subsequent 

to the time when the beneficiary was in his custody, we conclude that 

the petitioner has met the requirement of the statute that the beneficiary be in his legal custody at the time of legitimation. 

We find that the beneficiary qualifies as the petitioner's child within 

the meaning of the Immigration and Nationality Act and is, therefore, 

eligible to receive immigration benefits by virtue of that relationship. 

Accordingly, the appeal will be sustained. 

ORDER, The appeal is sustained and the visa petition is approved. 

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