Interim Decision #3347

In re Susan Edith TORRES, Beneficiary of visa petition

filed by Jose S. Torres, Petitioner

File A73 673 872 - Vermont Service Center

Decided May 4, 1998

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

In order to qualify as a “legitimated” child under section 101(b)(1)(C) of the

Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(C)(1994), a child residing or domiciled in Peru must have been under the age of 18 at the time the changes in Peruvian law

regarding legitimation took effect, and “extramarital filiation” must have been established

prior to the child’s 18th birthday, unless he or she was legitimated under the former laws of

that country. Matter of Quispe, 16 I&N Dec. 174 (BIA 1977); and Matter of Breninzon, 19

I&N Dec. 40 (BIA 1984), modified.

Pro se

Thomas K. Ware, Service Center Counsel, for the Immigration and Naturalization Service

Before: Board En Banc: SCHMIDT, Chairman; VACCA, HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, ROSENBERG, MATHON, GUENDELSBERGER,

JONES, GRANT, and SCIALABBA, Board Members.

COLE, Board Member:

In a decision dated June 24, 1997, the director of the Regional Service

Center (“RSC”) in Vermont denied the visa petition filed by the petitioner

to accord the beneficiary immediate relative status as his child pursuant to

section 201(b)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1151(b)(2)(A)(i) (1994). The RSC director subsequently certified his

decision to the Board for review, requesting that we overrule our decisions

in Matter of Quispe, 16 I&N Dec. 174 (BIA 1977), and Matter of

Breninzon, 19 I&N Dec. 40 (BIA 1984), in light of relevant changes in

Peruvian law. The appeal will be sustained, the RSC director’s decision will

be reversed, and the petitioner’s visa petition will be approved.

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Interim Decision #3347

I. BACKGROUND

The petitioner is a 44-year-old native of Peru who was naturalized as

a citizen of the United States on January 5, 1996. On January 10, 1997,

the petitioner filed the instant visa petition on behalf of the 19-year-old

beneficiary who is a native and citizen of Peru. The beneficiary was born

out of wedlock on February 14, 1979, to the petitioner and a woman he

never married.

With his visa petition, the petitioner submitted a copy of the beneficiary’s birth certificate, registered by the petitioner in 1979, wherein the petitioner acknowledged the beneficiary as his daughter. The record also contains an opinion from a legal specialist at the Library of Congress dated

May 31, 1996, which was furnished to the RSC director upon his request

for information on the legal status of children born out of wedlock in Peru.

The opinion states that the applicable sources of Peruvian law, which consist of the 1993 Constitution of Peru, see Constitucion [Constitution] art. 6

(Peru), and the Civil Code of Peru, see Codigo Civil [C.C.], no longer distinguish between children born in wedlock and children born out of wedlock. Children born out of wedlock are to be considered “extramarital”

children, and recognition and a ruling declaring paternity or maternity are

the only means of proof of the extramarital relationship. Attached to the

legal opinion is a copy of Article 6 of the 1993 Constitution, as well as

Articles 386 through 388 of the Civil Code.

Despite the above information, the RSC director denied the petitioner’s

visa petition. He concluded that he was bound to follow our decisions in

Matter of Quispe, supra, and Matter of Breninzon, supra, in which we

found that the legitimation of a child born out of wedlock in Peru required

the marriage of the natural parents or a judicial declaration upon petition of

the legitimating parent, as the mere acknowledgment of the child did not

place that child in the same legal status as a child born in wedlock. As it

appears from the record that the beneficiary’s parents never married, the

RSC director found that the beneficiary did not qualify as a child legitimated under the laws of her residence or domicile, as required by section

101(b)(1)(C) of the Act, 8 U.S.C. § 1101(b)(1)(C) (1994), and therefore did

not qualify for immediate relative status pursuant to section 201(b)(2)(A)(i)

of the Act. The RSC director did, however, certify his decision to the Board

for review in light of the change of law in Peru. The Immigration and

Naturalization Service has submitted a brief requesting that the Board

reverse the RSC director’s decision, overrule our holdings in Matter of

Quispe, supra, and Matter of Breninzon, supra, and approve the instant visa

petition.

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Interim Decision #3347

II. ANALYSIS

In visa petition proceedings, the burden is on the petitioner to establish

by a preponderance of the evidence that the beneficiary qualifies for the

benefit sought under the immigration laws. Matter of Soo Hoo, 11 I&N

Dec. 151 (BIA 1965). For the beneficiary to qualify for immediate relative

status under section 201(b)(2)(A)(i) of the Act, the petitioner must establish

that the beneficiary meets the definition of a “child” as set forth in section

101(b)(1) of the Act. According to section 101(b)(1)(C) of the Act, a “child”

includes “an unmarried person under twenty-one years of age who is . . . a

child legitimated under the law of the child’s residence or domicile . . . 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.” Also inherent in the statute is the

requirement that the petitioner establish that the beneficiary is his biological child. Matter of Bueno, 21 I&N Dec. 1029 (BIA 1997).

The beneficiary’s birth certificate clearly demonstrates that she is under

21 years of age. It also shows that the petitioner recognized the beneficiary

as his daughter in the same year in which the beneficiary was born, serving

to establish that the beneficiary is his biological child. The remaining issue,

then, is whether the petitioner’s recognition of the beneficiary resulted in

her legitimation “under the law of [her] residence or domicile” for purposes of section 101(b)(1)(C) of the Act.

In prior precedent decisions, we have defined legitimation as the act of

placing a child born out of wedlock in the same legal position as a child

born in wedlock. See Matter of Reyes, 17 I&N Dec. 512, 514 (BIA 1980),

“Where less than equality of status results, an act of legitimation is not

deemed to have occurred.” Id. With respect to Peru, we have specifically

held that a child acknowledged under the laws of Peru does not qualify as a

legitimated child for purposes of section 101(b)(1)(C) of the Act because

that child does not enjoy the same legal status as a child born in wedlock.

See Matter of Breninzon, supra; Matter of Quispe, supra. The legal opinion

and text of Peruvian laws submitted to the RSC director by the Library of

Congress do not clearly indicate whether the change in Peruvian law resulted in full “equality of status” between children born in wedlock and children born out of wedlock. The fact that children born out of wedlock in Peru

are no longer referred to as illegitimate children but are instead referred to

as extramarital children, see C.C., art. 386, merely indicates a change in

form, not in substance.1

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1

The Service indicates in its brief on appeal that the Peruvian family laws have eliminated all

distinctions between children born in wedlock and children born out of wedlock. The Service

relies on Article 6 of the 1993 Constitution which provides in part that “[a]ll children have the

same rights and duties. Mention of the parents’ marital status and of their legitimacy is prohibited
Interim Decision #3347

In light of the RSC director’s certification of this record to us for

review, we undertook our own examination of the laws of Peru in order to

ascertain the current legal status of children born in and out of wedlock in

that country and to determine how those laws may affect the visa petition

under consideration in the instant case. As a result of our examination, we

conclude that there was a change in Peruvian law on November 14, 1984,2

that served to place children born out of wedlock in the same legal position

as children born in wedlock in all respects once “extramarital filiation” is

established according to the legal procedures of Peru.3 See, e.g., C.C., arts.

235, 818.4 Accordingly, we modify our holdings in Matter of Quispe, supra,

and Matter of Breninzon, supra. Thus, a child born out of wedlock who was

under 18 years of age on November 14, 1984,5 or who was born on or after

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in civil registers and any other identity document.” However, a reading of Article 6 of the 1979

Constitution of Peru, which was examined by the Board in Matter of Breninzon, supra, at 41,

indicates that Peru had already determined at that time that “[a]ll children have equal rights. Any

reference concerning the civil status of the parents and the nature of the parentage of the children

in civil registries and in identification documents is prohibited.” In Matter of Breninzon, we held

that regardless of the language of Article 6 of the 1979 Constitution, Peru had not eliminated all

distinctions between children born in wedlock and children born out of wedlock, as the distinction with regard to inheritance rights between the two groups of children remained intact. Id. As

the above-quoted language of Article 6 of the 1993 Constitution is, in essence, the same as the

language found in Article 6 of the 1979 Constitution, we cannot base a decision in the instant case

on Article 6 of the 1993 Constitution, nor on Articles 386 through 388 of the Civil Code, as they

alone do not indicate that full “equality of status” between children born in wedlock and children

born out of wedlock currently exists. 2

All of the articles of the Civil Code discussed in this decision were signed on July 24,

1984, and went into effect on November 14, 1984. We note that, in his decision, the RSC

director mistakenly stated that the cited provisions of the Civil Code went into effect on

October 31, 1993. That date, however, appears to be the effective date of the Constitution. 3

Article 387 of the Civil Code states that “[r]ecognition and the ruling declaring paternity

or maternity are the only methods of proof of extramarital filiation.” With regard to recognition, Article 390 of the Civil Code provides that “[r]ecognition is recorded in the registry of

births, in a public legal document or in a will.” If the recognition is recorded in the registry

of births, Article 391 of the Civil Code provides that it “may be done at the time the birth is

registered,” as was done in this case. 4

Article 235 of the Civil Code provides that “parents are required to provide for their

under-age children’s support, protection, education and upbringing, depending on their situation and possibilities. All children have equal rights.” More importantly, Article 818 of the

Civil Code provides that “[a]ll of the children have equal inheritance rights with respect to

their parents. This stipulation covers children of the marriage [and] extramarital children who

are voluntarily recognized or declared by a ruling, with respect to the inheritance of the father

or the mother and their relatives . . . .” 5

In its brief, the Service requests that we use January 1, 1993, as the date upon which a child

in question must have been under 18 years of age in order to be legitimated, because, the Service

claims, that was the effective date of the 1993 Constitution. As discussed above, the Constitution

was not the law that placed children born out of wedlock in the same legal position as children

born in wedlock, see supra note 1, and therefore we cannot accept its effective date as the date

upon which a child in question must have been under 18 years of age in order to be legitimated. 
Interim Decision #3347

that date, may qualify as the legitimated child of his or her father, if the

requirements discussed above for proof of “extramarital filiation” are met

before the child’s 18th birthday. All children for whom “extramarital filiation” was not established before their 18th birthday or who were 18 years

of age or older on November 14, 1984, must continue to meet the requirements for legitimation under the former Peruvian law, as discussed in

Matter of Quispe, supra, and Matter of Breninzon, supra.

Based on the foregoing, we conclude that the beneficiary in the instant

case has been legitimated under the laws of her residence or domicile prior

to reaching the age of 18, as required by section 101(b)(1)(C) of the Act.

We also find that the petitioner has met the legal custody requirement of

section 101(b)(1)(C) of the Act, as interpreted in Matter of Rivers, 17 I&N

Dec. 419 (BIA 1980) (holding that a natural father is presumed to have legal

custody of his child at the time of legitimation in the absence of affirmative

evidence indicating otherwise), In light of this finding, and the other findings made above, we rule that the beneficiary qualifies as a child pursuant

to section 101(b)(1)(C) of the Act, and that she is therefore eligible for

immediate relative classification under section 201(b)(2)(A)(i) of the Act.

Accordingly, the appeal will be sustained, the RSC director’s decision will

be reversed, and the petitioner’s visa petition will be approved.

ORDER: The appeal is sustained. The decision of the RSC director

is reversed and the visa petition is approved.

Vice Chairman Mary Maguire Dunne did not participate in the decision in

this case.

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