Interim Decision #2687 

MATTER Or SANCHEZ 

In Visa Petition Proceedings 

A-22164879 

Decided by Board January 30, 1979 

Although illegitimate at the time of his birth in Honduras in 1949, the "acknowledged" 

child of the petitioner-father can now qualify for preference status as his unmarried son 

in view of the elimination of all legal distinctions between legitimate and illegitimate 

children in Honduras in 1957. Matter of Ramirez, 13 I. & N. Dec. 666 (BM 1971) 

modified. 

ON BEHALF OF PETITIONER: S. Bernard Schwarz, Esquire 

299 Broadway, Suite 1517 

Now York, Now York 1(10(17 

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

The United States citizen petitioner has appealed from an August 31, 

1977, decision of the District Director denying a visa petition filed in 

behalf of his unmarried son under section 203(a)(1) of the Immigration 

and Nationality Act, 8 U.S.C. 1253(a)(1). The appeal will be sustained. 

The beneficiary, a native and citizen of Honduras, was born out of 

wedlock on May 5, 1949. The petitioner officially acknowledged the child 

one week later before the Municipal Secretary in charge of the Civil 

Registry, but never married the beneficiary's natural mother. The petitioner thereafter immigrated to the United States and acquired citizenship through naturalization in 1972. He states that he listed the 

beneficiary as his son on his petition for naturalization. 

In April 1977, the petitioner submitted the present visa petition on. 

behalf of the beneficiary. Included with the petition was an extract of 

the Honduran Constitution of 1965 and a brief prepared by a Honduran 

attorney, both of which indicated that distinctions between legitimate, 

legitimated, and natural children had been eliminated in that country, 

and that all children were accorded equal "rights and duties." 

On August 31, 1977, the District Director denied the petition finding 

that the "facts presented disclose[d] that the beneficiary was illegitimate at birth" and that there was no evidence "that he was ever 

legitimated by the marriage of his natural parents to each other, or 

otherwise legitimated." The District Director accordingly concluded 

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that the beneficiary had never qualified as the petitioner's child under 

section 101(b) of the Act, 8 U.S.C. 1101(b), and that he, therefore, was 

ineligible for any visa preference. 

On appeal, the petitioner, through counsel, submits that the District 

Director refused to consider the evidence concerning the current law of 

Honduras regarding the status of natural born children. He states that 

the beneficiary was effectively "legitimated" under Honduran law prior 

to his 18th birthday and that he is accordingly now eligible for prefernee status as the petitioner's son. 

The evidence before the Board regarding the status of children born 

out of wedlock in Honduras includes extracts from the Honduran Constitutions of 1957 and 1965, extracts from the Civil Code of Honduras, a 

one-line statement apparently provided by the Consul General of Honduras in New York, two legal memoranda prepared by Honduran counsel at petitioner's request, and a memorandum entitled "Legitimationlionduras" prepared by the Hispanic Law Division of the Library of 

Congress on July 31, 1978. 

These materials reflect the following chronology of the beneficiary's 

status under the Honduran law relative to his natural father_ At the 

time of the beneficiary's birth, distinctions existed in Honduras between 

the rights accorded legitimate and natural children.' The beneficiary 

vies in fact illegitimate at birth and the petitioner's acknowledgment of 

the child shortly after birth did not effect a legitimation (the subsequent 

marriage of the natural parents being essential to legitimation under the 

provisions of the Honduran Civil Code then in effect). Under the Civil 

Code, however, the acknowledgment of the beneficiary did result in the 

"naturally recognized [child being] subject to the authority of the father, 

and in [default] to the mother." Then, in 1957 when the beneficiary was 

eight years old, Honduras adopted a new Constitution_ Under the 1957 

Constitution, qualifications "concerning the nature of filiation [were] 

abolished" and "no inequality among children [was] recognized; all hay- , 

2 The memoranda prepared by the img the same rights and duties." 

Library of Congress and those submitted by respondent's counsel indiate that this constitutional provision superseded and eliminated the 

effect of all statutory distinctions made between children born in wed1 ,03alc and those born out of wedlock. Previously born "natural" children 

were not made "legitimate" from date of birth, but from 1957 onward 

heir status as "natural children" was abolished and they were accorded 

tile same "rights and duties" of children born in wedlock. 

Counsel submits that under these facts the beneficiary should be 

dt eemed to have been "legitimated" within the meaning of the immigraLegitimate descendants, for example, were preferred over natural descendants under 

taleprovisions of the Honduran Civil Code regarding intestate distribution. 

2 A similar provision is included in the 1965 Constitution of Honduras now in force. 

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tion laws. He notes that the "legitimation" occurred while the beneficiary was under 18 years of age, that the beneficiary was then "subject to the authority of the [petitioner]," 3and that thereafter the child 

had the identical "rights and duties" of a child born in wedlock. 

Considering the evidence before the Board regarding relevant Honduran law (all of which is consistent and urirebutted), we agree that the 

petitioner has established that the beneficiary is eligible for a visa 

preference as his unmarried son under section 203(a)(1) of the Act. See 

Matter of Lee, Interim Decision 2606 (BIA 1977). We do not reach the 

question, however, whether the beneficiary should be deemed "legitimate" from the effective date of the 1957 Honduran Constitution or 

should be viewed as having been "legitimated" on that date, as submitted 

by counsel. See Lau v. Kiley, 563 F.2d 543 (2 Cir. 1977); Petition for 

Naturalization of Fraga, 429 F. Supp. 549 (D. P.R. 1974); Matter of 

Wong,Interim Decision 2682 (BIA 1978); Matter of Clahar, Interim 

Decision 2643 (BIA 1978); Matter of Kubicka, 14 I. & N. Dec. 303 (BIA 

1972); Matter of Kwan, 13 I. & N. Dec. 302 (BIA 1969); Matter of 

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

N. Dec. 287 (BIA 1965); Matter of G—, 9 T. & N Dec. 518 (BIA 1961); 

Matter of K—, 8 I. & N. Dec. 73 (BIA 1958). Under either analysis, we 

would find this beneficiary's eligibility for preference status under section 203(a)(1) of the Act to have been established in view of the apparent 

elimination of all legal distinctions between legitimate and illegitimate 

children in Honduras. 4 

The appeal will accordingly be sustained. 

ORDER: The appeal is sustained. 

3In view of the statutory provision bestowing the primary right of "authority" over the 

child with the petitioner subsequent to his acknowledgment of the beneficiary in 1949. 

4Matter of Ramirez, 13 I. & N. Dec. 666 BIA 1971), is modified to the extent 

inconsistent with the decision herein. 

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