Interim Decision #2227 

MATTER OF JULIANUS 

In Visa Petition Proceedings 

A-11753637 

Decided by Board September 14, 1973 

Under the law of Guadeloupe, French West Indies, legitimation of a child born 

out of wedlock is accomplished by the subsequent marriage of his father and 

mother. 

. ON BEHALF OF PETITIONER: Ben Carter, Esquire 

138 E. Court Street 

Room 327 Temple Bar Bldg. 

Cincinnati, Ohio 45202 

The permanent resident petitioner applied for preference status 

for the beneficiary as his unmarried son under section 203(aX2) of 

the Immigration and Nationality Act. The District Director denied 

the application in an order dated May 1, 1972. The petitioner 

appeals from that decision. The appeal will be dismissed. 

The beneficiary is a native of Guadeloupe, French West Indies 

and a citizen of France. The record indicates that the petitioner 

was never ceremonially married to the beneficiary's Mother. The 

petitioner's residence and domicile are in Ohio. 

The issue presented in this appeal is whether the beneficiary 

qualified as a "child" for purposes of the immigration laws when 

he was under the age of 21, for he must have been a "child" then 

in order to qualify as an unmarried son now. See Matter of R—, 5 L 

& N. Dee. 435, 439 (BIA, 1953). 

The term "child" is defined in section 101(b)(1) to include any 

unmarried person under 21 years of age who is— 

(A) a legitimate child: or 

(B) a stepchild ...; or 

(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; or 

(D) an illegitimate child ... on whose behalf a status, privilege, or benefit is 

sought by virtue of the relationship of the child to its natural mother; or 

(E) a child adopted ... 

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Interim Decision #2227 

Subparagraphs (B), (D), and (E) dearly are inapplicable to the 

present case. The petitioner claims that the beneficiary is a 

legitimated child, although he presented no evidence to show 

legitimate birth or legitimation under the law of either the 

beneficiary's or the petitioner's residence or domicile. 

With respect to the laws of Guadeloupe, the residence and 

domicile of the beneficiary, the beneficiary does not qualify as a 

legitimated child. Clearly, the beneficiary was not a legitimate 

child at birth, since his parents were not married to each other, 

and children born out of wedlock are legitimated only by the 

subsequent marriage of their father and mother, Article 221, 

French Civil Code. 1This provision was in force in Guadeloupe at 

all relevant times including when this application was made, and 

until January 3, 1972. On that date the wording of this provision 

was changed slightly because of the enactment of a law on 

filiation, but not in such a way as would affect the outcome of this 

case. 2 

The petitioner claims that the beneficiary was legitimated according to the laws of Ohio, alleging that because Ohio recognizes 

common law marriages, the beneficiary was somehow legitimated. 

However, he presents no evidence regarding either common law 

marriage or legitimation under Ohio law. The petitioner states in 

his petition that he never lived with the beneficiary's mother in 

the United States. His own residence in Ohio is not sufficient basis 

to claim the existence of a common law marriage under that 

state's law. Therefore, it appears that the beneficiary has not been 

legitimated in accordance with Ohio law. 

It is well settled that an illegitimate child gains no benefits 

under the immigration laws on the basis of its relationship to its 

father, Matter of C-, 5 I. & N. Dec. 610 (BIA, 1954). Since a parentchild relationship, as defined by the immigration laws, was never 

formed, the beneficiary does not qualify as an unmarried son for 

purposes of section 203(a)(2) of the Act. 

Counsel claims in his brief that in 1969 a government official led 

the petitioner to believe that all he needed to do to accord the 

1Article 331 of the French Civil Code (Law of April 25, 1924): "Children born 

outside of marriage, other than those born of adulterous intercourse, shall be 

legitimated by the subsequent marriage of their father and mother when the 

latter have acknowledged them before their marriage or when they acknowledge 

them at the time of its celebration ...." 

2Article 331 of the French Civil Code (Law of January 3, 1973): "All children 

born outside of marriage shall be legitimated by operation of law by the 

subsequent marriage of their father and mother. 

"If their filiation was not already established, these children shall be the 

object of the acknowledgment at the time of celebration of marriage ...." 

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Interim Decision #2227 

beneficiary legal status as his son for immigration purposes was to 

wait until the boy was 18 years old. He alleges that the petitioner 

was not informed that he would have to legitimate his son before 

the boy reached the age of 18. He contends that, because the 

petitioner relied to his detriment on the official's statement, the 

Government should be estopped from barring the youth's admission now. However, there is no evidence in the record to substantiate these assertions, and the burden to establish eligibility for 

benefits sought under the immigration laws falls upon the petitioner in visa petition proceedings, Matter of Brantigan, 11 I. & N. 

Dec. 493, 495 (BIA, 1966); Matter of Yee, 11 I. & N. Dec. 27, 

30 (BIA, 1964). 

Accordingly, we agree with the District Director that the petitioner has failed to establish the beneficiary's eligibility for the 

preference he seeks, and therefore we shall dismiss the appeal. 

ORDER: The appeal is dismissed. 

437