Interim Decision #1839 

MASTER OF GARCIA 

In Visa Petition Proceedings 

A-17963963 

Decided by Board January E9,1968 

Whore paternity of beneficiary. who was born out of wedlock in the Philippine 

Islands in 1932, was acknowledged by petitioner, his natural father, and he 

was received into the home in the Philippines of the petitioner who since 1927 

• had been living out of wedlock with the natural mother of the beneficiary, 

legitimation of beneficiary sines birth occurred pursuant to section 230 of the 

Civil Code of California, the State of residence and domicile of petitioner, notwithstanding the legitimating acts occurred outside that State and petitioner 

has been living in California since 1933 and beneficiary has been living in the 

Philippines. Renee, beneficiary is entitled to preference classification under section 203(a) (4) of the Immigration and Nationality Act, as amended, as the 

married son of the U.S. citizen petitioner. 

ON BsztArr or PmwrioNsa: Alberto V. Bsteva, Esquire 

1255 Post Street 

San Francisco, California 94109 

(Brief filed) 

The case comes forward pursuant to certification by the District 

Director, San Francisco District, of his order dated November 6, 1967 

denying the visa petition for the reason that the evidence presented 

by the petitioner does not establish that the beneficiary is a child as 

defined in section 101(b) (1) of the Act and that he is not entitled to 

status as the married son of a citizen of the United States under section 

203 (a) (4) of the Act. 

The petitioner, a native of the Philippines, a naturalized citizen of 

the United States, 76 years old, male, seeks preference status under 

section 203(a) (4) of the Immigration and Nationality Act on behalf 

of the beneficiary as his son. The beneficiary is a native and citizen 

of the Republic of the Philippines, 35 years old, married. 

In support of the visa. petition the file shows that the local civil 

registrar certified that Philippine birth records prior to 1945 are not 

available; however, a baptismal certificate of the beneficiary dated 

February 91, 1982 shows that the beneficiary was born January 16, 

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1932, the legitimate son of Pedro M. Garcia and Macaria Fernando. 

The petitioner also submitted his marriage certificate showing his marriage to Macaria Fernando on April 28, 1967 at Quezon City, Republic 

of the Philippines. Examination of the baptismal certificate and the 

marriage certificate establish that the petitioner and his wife are natural parents of the beneficiary. The petitioner also submitted a notarized affidavit executed July 3,1967 setting forth that he had been living 

with Macaria Fernando, the mother of the beneficiary, since July 1927 

as husband and wife, that the beneficiary was born to her sometime in 

January 1932 and that he is claiming him as his legitimate son. The 

petitioner stated that in the Philippines there is no divorce law and 

that once you are married you are married for life; for that reason 

some people in the islands prepare to live together unmarried several 

years; when they find out that they are on good terms, then they get 

married. The petitioner also submitted letters dated August 7, 1967 

from Isidro Teope and Alfred S. Moreno setting forth that they have 

known the petitioner since 1946 and 1934, respectively; that they know 

the petitioner has a wife and son in the Philippines; that the former 

knew this because he often visited his family when he was there; and 

the latter because the petitioner had many times showed him group 

pictures of his family; and that Alfred S. Moreno knows that the petitioner oftentimes sends support money for his family in the 

Philippines. 

It is voted that the petitioner, the natural father, married the 

natural mother of the beneficiary on April 28, 1967 when the beneficiary was 35 years old. Consequently, there can be no legitimation 

under section 101(b) (1) (0) of the Immigration and Nationality Act 

which provides for legitimation under the laws of the child's residence or domicile, or under the laws of the father's residence or 

domicile, whether in or outside the United States, if snob legitimation 

takes place before the child reaches the age of 18 years and the child 

is in the legal custody of the legitimating parent or parents at the 

time of such legitimation. 

However, counsel for the petitioner claims that the beneficiary was 

legitimated under the provisions of section 230 of the California Civil 

Code which provides that the father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the 

consent of his wife, it he is married, into his family, and otherwise 

treating it as if it were a legitimate child, thereby adopts it as such; 

and such child is thereupon deemed for all purposes legitimate from 

the time of its birth. Petitioner's counsel sets forth that the petiticiner 

has been physically present in the State of California from 1933 to 

the present time and that the petitioner has had the intent, through620 
Interim Decision #1839 

out these years, to remain and live in such state, and petitioner is 

therefore a domiciliary of said state. 

The statute, section 230 of the Civil Code of California, has been 

construed as a statute of legitimation rather than adoption and the 

provisions thereof are to be literally construed. The word "family" is 

not a technical word but a word of flexible meaning and is to be 

broadly construed. so as to include within its purview even a case 

where the father is living out of wedlock with a woman not his lawful 

wife? 

The petitioner has submitted the baptismal certificate as proof that 

he gave his name to the beneficiary, acknowledging him to be his son. 

In his affidavit of July 3, 1967 he stated that he had been living with 

Macaria Fernando since July 1927 and that the beneficiary was born 

to her sometime in January 1932. In addition, he has supplied the 

statements of two persons, Isidro Teope and Alfred S. Moreno, who 

have known the petitioner since 1946 and 1934, respectively, who 

state that the petitioner has a, wife and son in the Philippines and has 

so acknowledged. This evidence constitutes proof that the petitioner 

acknowledged the beneficiary as his child and received it into his 

family and gave the beneficiary the family name. 2 

In Matter of Pa2acio, 11 1. & N. Dec. 132, the petitioner sought nonquota status on behalf of his unmarried child, born June 27, 1944, a 

native and citizen of the Philippines. A certificate of baptism estab: 

lished that he was the child of the petitioner and of one Nena de Silva. 

The petitioner married his present wife on May 6, 1963. The petitioner 

obtained a decree in the Superior Court of the State of California, 

San Francisco, entered September 15, 1904 declaring that the petitioner was a legitimate father from birth of the beneficiary and the 

children included in the judgment, that said minor children were 

legitimate children of the petitioner and that a valid and subsisting 

relationship of parent and child existed between petitioner and said 

minor children. The petitioner had been separated from the mother 

of the beneficiary since 1939 and in September 1944 he signed a 

legal separation but did not see her and believed her to be deceased. 

The petition was denied without prejudice to reopening if the petitioner could establish legitimation of the beneficiary prior to his 

18th birthday. Thereafter (Matter of Palacio, 11 I. & N. Dec. 183), 

the petitioner submitted an amended judgment of legitimation under 

section 230 of the California Civil Code in the Superior Court of the 

'Matter of Der—, 6 I. & N. Dec. 325; Betate of Baird. 193 Cal. 225; In Re 

Merkel°, 183 Cal. 177; Rankin v. Rankin, 52 Cal. App. (2d) 231, 235; Garner v. 

Judd, 136 Cal 304. 

*In ro Jessup, SI Cal. 411g, 434 and dissenting opinion. 

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Interim Decision #1839 

State of California, San Francisco, dated April 27, 1965 in -which it 

was decreed that the 'petitioner was the legitimate father of the 

beneficiary and of the other minor children named in the petition and 

the children were the legitimate children of the petitioner, and that 

a valid subsisting relationship of parent and child existed between 

the petitioner and the said minor children since their birth. It was. 

further ordered, adjudged and decree that the date of legitimation or 

the beneficiary was eight years of age. We noted that-according to theamended judgment, the court evidently considered the relationship. 

between the petitioner and Nena de Silva, the beneficiary's natural. 

mother, sufficient to base a finding of "receiving into the family" even: 

though it occurred in the Philippines, under the circumstances of the 

case. The visa petition was approved. 

In Matter of Pableo, Int. Dec. No. 1808 (D.D., November g, 

1967), the petitioner sought classification under section 203(a) (1) of 

the Immigration and Nationality Act, as amended, on behalf of the 

beneficiary, his natural son, who was born out of wedlock In the 

Philippines. The petitioner claimed legitimation pursuant to section 230 of the California Civil Code which has been construed as an 

out-and-out statute of legitimation. 8The beneficiary's certificate of 

baptism showed him to be the son of petitioner and the record established that the petitioner acknowledged the beneficiary as his child. 

received him as such with the consent of his wife into his family in 

the Philippines in 1951 when the beneficiary was 11 years of age and 

otherwise treated him as if. he were a legitimate child both' in the 

Philippines and in the State of. California. It was. conceded that the 

record established that the beneficiary had been legitimated under 

the provisions of section 280 of the California Civil Code and, as 

construed by the California courts, it was immaterial whether legitimation had ocuurred during the applicant's minority or thereafter.' 

The facts of the case were submitted to the Attorney General of the 

State of California and his opinion was requested as to whether the 

beneficiary had been legitimated under the laws of the State of California and, if so, the date on which the legitimation deemed to have 

occurred. The Attorney General replied : 

Under the facts given, it appears that the requirement of Civil Code, section 

230 has been met. The legitimating acts specified in section 230 are not required to occur in California. Estate of Lund, 26 Cal. (2d) 472. In the leading 

case of Blythe v. Ayres, 96 Cal. 582, the court held that section 280 had extra 

territorial operation and its affect attaches to a state of facts where the child 

1 .13aIlantine T. .De Silva, 226 F.2d 623, 632 (9th Cir., 1955), aff'd 35/ U.S. 

570, reb. den. 352 U.S. 97 

'Citing Estate of LleaU, 26 Cal. (2d) 472; 'Wolf v. Gall, 32 Cal. App. NG; 

Blythe v. Ayres, 96 Cal. 532. 

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was never in California, but resided in a foreign country whenever the question 

of legitimation presents itself to the court of California and this is so, regardless of the law of the country. 

It would appear that the son was legitimated under California law as early 

as 1945 when the child lived with petitioner's father, if this was the petitioner's 

domicile. However, there can be no doubt that in 1951 when petitioner established a home with his wife, son, and the beneficiary and he lived as a family 

unit, that all other requirements of the Civil Code. section 230 had been met. 

The evidence submitted in the instant case establishes that the natural father lived with the natural mother out of wedlock since 1927; 

the beneficiary, whose certificate of baptism bears his father's name, 

was born in 1932; that the petitioner left the Philippines in 1933; and 

that the petitioner acknowledged the beneficiary as his son. It appears further on the basis of the provisions of section 230 of the California, Civil Code and the interpretations thereof in Matter of Palacio, 

11 I. & N. Dec. 183 and Matter of Pable,o, Int. Dee. No. 1808, the beneficiary was legitimated under section 230 of the California Civil Code 

upon the basis of the acknowledgment of paternity in the certificate of 

baptism and the receiving into the home, since the date of birth under 

the circumstances of the case. 6Accordingly, the visa petition will 

be approved. 

ORDER: It is ordered that the visa petition be and the same is 

hereby approved for preference status under section 203 (a) (4) of 

the Immigration and Nationality Act, as amended. 

Prior administrative holdings to the contrary as to the extraterritorial effect 

of section 230, California Civil Code are overruled.