Interim Decision #2830 

MATTER OF LEVY 

In Visa Petition Proceedings 

A-23353467 

Decided by Board October 8, 1980 

(1) When the country where the beneficiary was born and resides eliminates all legal 

distinctions between legitimate and illegitimate children, all natural children are 

deemed to be the legitimate offspring of their natural father for visa petition purposes 

from the time that country's laws are changed. 

(2) Where a petitioner submitted evidence that a Haitian Presidential decree of January 

27, 1959, purported to abolish all legal distinctions between children based on the 

marital status of their natural parents, and that Article 202 of the Civil Code of Haiti 

as amended by Decree Law 466 of December 22, 1944, which required marriage of the 

natural parents for legitimation (See Matter of Remp,1411iN Dec. 183 (BIA 1972)) no 

longer governed, case was remanded for a determination of the effect of the new law on 

the visa petition. Matter of Annang, 14 I&N Dec. 502 (BIA 1973). 

ON BEHALF OF PETITIONER ON BEHALF OF SERVICE 

Robert E. Slatus, Esquire Jim Tom Haynes 

50 East 42nd Street Appellate Trial Attorney 

Suite #1001 

New York, New York 10017 

By Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members 

In a decision dated May 7, 1980, the District Director denied a visa 

petition filed on behalf of the beneficiary as the petitioner's unmarried 

daughter under section 203(a)(1) of the Immigration and Nationality 

Act, 8 U.S.C. 1153(a)(1). The petitioner appealed. The record will be 

remanded for further proceedings. 

The petitioner is a citizen of the United States. The beneficiary is a 

native and citizen of Haiti, who allegedly was born out of wedlock to 

the petitioner and a woman he never married. The District Director 

based his denial of the visa petition on his finding that, because the 

beneficiary was born out of wedlock, and her parents never married, 

she was an illegitimate,child who had not been legitimated, and thus 

could not receive an immigration benefit through her father. 

A beneficiary of a visa petition can qualify as an "unmarried 
Interim Decision #2830 

daughter" of a petitioner only if the beneficiary could once have 

qualified as a "child" of the petitioner under section 101(b)(1) of the 

Act, 8 U.S.C. 1101(b)(1). Matter of Coker,14 I&N Dec. 521 (BIA 1974). 

Section 101(b)(1) defines a child, in pertinent part, as, 

(A) a legitimate child; 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; ... 

Since the beneficiary in the present case was born out of wedlock, it 

must be established either that she has been legitimated under the law 

of Haiti br New York or that she is considered legitimate under the 

applicable law. 

New York requires the marriage of a child's natural parents in order 

to legitimate a child born out of wedlock. Matter ofReyes,16 I&N Dec. 

475 (BIA 1978); Matter of Bullen, 16 I&N Dec. 378 (BIA 1977). The 

beneficiary has dins not been legitimated under that law_ In a prior 

Board decision, Matter of Remy, 14 1&N Dec. 183 (BIA 1972), we held 

that legitimation of a child in Haiti also required the marriage of the 

child's natural parents, as well as acknowledgment of the child prior to 

or during the act of marriage. We relied for this rule on Article 302 of 

the Civil Code of Haiti, as amended by Decree Law 466 of December 22, 

1944. On appeal, the petitioner has presented a copy, with translation, 

of the Haitian Presidential Decree of January 27, 1959. That decree 

provides in pertinent part, 

Article 1. Natural filiation shall give rise to the same obligations as those deriving 

from legitimate filiation. 

Nonetheless, the proof of natural filiation may result only from voluntary recognition or from judicial recognition in the case where the latter is authorized by Jaw. 

Article III. The present decree which repeals all laws or applications of laws, all lawdecrees that are contrary to it; namely articles 308, 583, 606; second paragraph, 624 and 

742 of the Civil Code, will be published and executed at the suite of the State Secretary 

of Justice. 

The 1959 Presidential Decree was not discussed in our decision in 

Matter of Remy, supra. It appears to abolish all legal distinctions for 

Haitian children whether born in or out of wedlock. When the country 

where a beneficiary was born and resides eliminates all legal distinctions between legitimate and illegitimate children, all natural children 

are deemed to be the legitimate offspring of their natural father for 

immigration purposes. Lau v. Kiley, 563 F.2d 543 (2 Cir. 1977); Matter 

of Hernandez, Interim Decision 2712 (BIA 1979); Matter of Santhez,16 

I&N Dec. 671 (BIA 1979); Matter of Wong, 16 I&N Dec. 646 (BIA 1978); 

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

540 
Interim Decision #2880 

Matter of Bautista, Interim Decision 2731 (BIA 1979). 

Article III of the 1959 presidential decree purports to repeal all laws 

to the contrary, but does not list Articles 302 or 466 of the Civil Code 

among the specific sections listed as repealed. Nevertheless, its terms 

appear to be all inclusive, warranting consideration by the District 

Director of its applicability. Although a copy of the 1959 decree was 

part of the visa petition record, its legal effect was not discussed by the 

District Director. Consequently, we will remand the record for further 

proceedings in which the petitioner retains the burden of establishing 

the beneficiary's eligibility for preference immigration status and the 

legal effect of the 1959 Haitian Presidential Decree. Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966); Matter of Annang, 14 I&N Dec. 502 

(BIA 1973). Therefore, on remand the petitioner should submit to the 

District Director more evidence regarding the 1959 decree's effect on 

Article 302 and Haitian legitimation. See Matter of Remy, supra. Such 

evidence could include statements from representatives of the government of Haiti or experts in Haitian law stating their legal conclusions 

as to the beneficiary's status. It is so ordered. 

ORDER, The record is remanded for further proceedings in accordance with this opinion and the entry of a new decision. 

FURTHER ORDER, After a new decision is entered, the record 

shall be certified for our review.