Interim Decision #1323 

Matcry.ac OF TINSLEY 

In VISA PETITION Proceedings 

A-13710282 

Decided by Board February II, 1964 

A child born out of wedlock in the Philippines and reared in a home maintained 

there by his father (married) and his mother (unmarried paramour of father) 

has not been legitimated under section 230, California Civil Code, absent a 

showing that the father brought the child into his home "with the consent 

of his wife." 

The district director approved the visa petition on June 18, 1963, 

and granted nonquota status to the beneficiary as the petitioner's child. 

On September 17, 1963, the petitioner was notified of the intention 

to revoke the approval and that he might offer evidence in opposition 

within 15 days. No evidence was submitted and the approval of the 

visa petition was revoked on October 14, 1963. The case is now before 

us on appeal from that decision. 

We kayo carefully reviewed the entire record. The petitioner was 

born in the Philippines and acquired. United States citizenship through 

"parentage." He originally stated that he was married on April 21, 

1951, to one Eleanor; that he had not been previously married; and 

that the beneficiary was born in the Philippines on March 21, 1952. 

From information subsequently received by the Service and which 

the petitioner now concedes, it appears that he was previously married 

to Gloria Tibre on May 10, 1943, and that this marriage has not been 

terminated. The Service revoked the approval of this visa petition 

on the ground that the beneficiary, being illegitimate, was not a "child" 

of the petitioner under the definition in section 101(b) (1) of the 

Immigration and Nationality Act [8 U.S.C. 1101(b) (1)]. Counsel 

contends that the beneficiary has been legitimated under section 230 

of the California Civil Code which provides, in part, as follows : 

§ 230 Adoption of illegitimate child—The father of an illegitimate child, by 

publicly acknowledging it as his own, receiving it as such, with the consent of 

his wife, if he is married, into his family, and otherwise treating it as if it were 

a legitimate child, thereby adopts it as such and said child is thereupon deemed 

for all purposes legitimate from the time of its birth. * * * 

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In his brief, counsel stated that, following the marriage on April 27, 

1951, the petitioner and Eleanor maintained a home and held themselves out as husband and wife; that, when the beneficiary was born, 

the petitioner held him out as his child and received him into the 

home which he maintained with Eleanor; that the petitioner moved 

to California in 1960; and that he sent money to the Philippines for 

the support of his family. However, the record contains no evidence 

to support any of these factual allegations and there is not even an 

affidavit by the petitioner to that effect. Regardless of whether the 

beneficiary's case meets other requirements of section 230, we do not 

believe it has been established that the petitioner received the beneficiary as his own child into his family with the consent of his wife. 

Counsel stated that the courts of California "declare that such legitimating acts under Civil Code 230 are operative although the only 

home the father has and the home in which he receives the child is a 

home in which he is living with the mother as husband and wife, 

although they are not married." He cited three cases in support of 

this proposition which will be discussed briefly. 

Garner v. Judd, 150 Cal. 304, 68 Pa,e. 1026 (1902), related to a man, 

apparently previously unmarried, who lived with a woman from 1876 

to 1897. There was some evidence that a marriage had occurred 

between them but this was not definitely established. He held her out 

as his wife. His illegitimate child was born in 1878 of another woman, 

and the child was held not to have become legitimated under section 230 

because the father had not received her into his family. 

In re Jones' Estate [Baker v. Jones], 166 Cal. 108, 135 Pao. 288 

(1913), involved two unmarried persons who cohabitated at the man's 

residence on a ranch commencing in 1897. In May 1902, the woman 

became pregnant and in November of that year she left the ranch and 

did not again return to cohabit with him. The illegitimate child was 

born on February 27, 1903. He lived at the ranch with his father for 

two months about 1908 which the court held constituted receiving the 

child into the father's family, the family consisting of the father and 

the son. 

In re McNamara's Eetate, 181 Cal. 82, 183 Paz. 552 (1919), had 

reference to a married woman and an unmarried man who cohabited 

from December 1913 until his death. Their illegitimate child lived 

with them and was acknowledged by the father. It was held that this 

child was legitimated tinder section 230. 

In re McNamara's Estate, supra, does support counsel's proposition 

quoted above but the other two eases do not. However, the McNamara 

case is distinguishable from the respondent's case. There, the father 

received the illegitimate child into the home he had maintained in 

California with the child's mother. This beneficiary has never been 

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received into the petitioner's home in California although counsel 

attempts to utilize the beneficiary's alleged residence with the petitioner and Eleanor in the Philippines. 

A more important distinction is that, in cases where the father of 

the illegitimate child is married, section 280 specifically requires that 

the wife must consent to receiving the child into the father's family. 

In the McNamara case, the father was unmarried. However, there is 

no question that Eleanor, the mother of the beneficiary, is not the 

petitioner's wife, and there is no evidence that his legal wife, Gloria, 

consented to the beneficiary being received into the petitioner's family. 

The facts in this beneficiary's case are entirely analogous to those in 

Louie Wale You v. Nagle, 27 F. 2d 573 (9th Cir., 1928), and Matter of 

1176219, Int. Dec. No. 1287 (1963) , in which it was held that legitimation 

was not established under section 230 of the California Civil Code. 

We consider those decisions controlling here and hold that the petitioner has not established that the beneficiary was legitimated under 

section 230. In view of the foregoing, we conclude that the district 

director's action, revoking the approval of the visa petition, was 

correct and the appeal will be dismissed. 

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

dismissed. 

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