VP 10-I-218
Decided by Board March 21, 1957
Nonquota status — Section 101 (a) (27) (A), Immigration and Nationality Act — Legitimation of children, Italy.
Acknowledgment under Article 277 of the Italian Civil Code of 1942 does not constitute "legitimation" within the meaning of section 101 (b) (1) of the act. Under Italian law, only legitimation by subsequent marriage of the parents or by royal or presidential decree gives to the person born out of wedlock the attributes of a legitimate child in all respects.
BEFORE THE BOARD
Discussion: The matter comes forward on appeal from the order of the District Director, St. Paul, Minnesota, dated November 26, 1956, denying the visa petition on the ground that it has not been established that the beneficiary is eligible for nonquota status by virtue of her relationship to a United States citizen.
The petitioner, a native of Italy and a naturalized citizen of the United States, seeks nonquota status on behalf of the beneficiary, her daughter, born in Florence, Italy, on July 17, 1946. Section 101 (a) (27) (A) of the Immigration and Nationality Act grants nonquota status to a child of a citizen of the United States. The term "child" as used in section 101 (a) (27) (A) is limited by the provisions of section 101 (b) (1) to a legitimate child, a stepchild, or a child legitimated under the law of the child's residence or domicile or under the law of the father's residence or domicile.
Supporting documents submitted in connection with the visa petition indicate that the beneficiary was born on July 17, 1946, at Florence, Italy, to an unnamed woman. The beneficiary's birth certificate contains 2 marginal notations: (1) that the child has been proved to be the natural daughter of M---- G---- (the petitioner); and (2) by sentence passed by the Civil and Penal Court of Law of the City of Florence on April 9, 1951, it is certified that the child, proved to be the natural daughter of M---- G---- since June 26, 1954, is also the daughter of M---- Z----, to all effect of law, as of Article 277 of the Civil Code. Article 277 of the Italian Civil Code of 1942 provides that a judgment declaring filiation out of wedlock shall produce the [legal] effect of acknowledgment; the judge may also include provisions advantageous to the upbringing, education, and instruction of the child and guardianship over his property interests. The issue presented is whether such recognition or acknowledgment is the same as legitimation so as to satisfy the requirements of section 101 (b) (1) that a "child" means a legitimated child.
The general doctrine is that the status of legitimacy or illegitimacy is governed by the law of the child's origin. Legitimacy being a domestic status, it must on general principles be governed by the domicile of the parties to it. These parties are the child or one or both of its parents, for a child may be the legitimate child of one parent and not of the other. Legitimacy once created by proper law should everywhere be recognized, and the same effect given to it as is given to the same status created in the state of forum, or in the state where the effect is to be found.
Beale, Conflicts of Laws (1935 ed.), vol. II, pp. 704-705.
Beale, Conflicts of Laws (1935 ed.), vol. II, p. 712.
It, accordingly, becomes necessary to look at the law of Italy to determine whether the beneficiary is legitimated. The Library of Congress has supplied the pertinent provisions of the applicable law. The Civil Code of 1942 provides for 3 methods by which a child born out of wedlock may acquire a status similar to that of a legitimate child. However, only one method is called legitimation. Article 280 of the Italian Civil Code of 1948 provides that legitimation takes place by subsequent marriage entered into by the parents of the child born out of wedlock or by decree of the king (now, by the decree of the President of the Republic). Article 280 contains the further provision that legitimation gives to a person who is born out of wedlock the character of a legitimate child, and thus, by legitimation pursuant to Article 280, there is given to the child born out of wedlock the attributes of a legitimate child in all respects.
The Civil Code of 1942 likewise provides for 2 other methods by which a child born out of wedlock may acquire a status similar to that of a legitimate child. These 2 methods, acknowledgment and judicial declaration of filiation, establish the legal bond of filiation between one or both parents and the child born out of wedlock and thereby give the child the character of a legitimate child in many essential respects to a point where there is only a small difference between a legitimate child and a child who is acknowledged or whose filiation is declared by court. Thus, the child whose filiation has been acknowledged or judicially declared inherits even in the presence of legitimate children (Article 573). Such children are considered to be forced heirs, i.e., the law secures to them a certain quota of their intestate share (one-third in the presence of 1 child and one-half of the estate if there are 2 or more children, Arts. 536, 539). The exact share of such a child intestate succession depends upon whether other legitimate descendants or ascendants inherit together with him (Arts. 541-543, 545, 546, 574, 576). Such children inherit the entire estate in the absence of legitimate descendants, ascendants and the spouse of the parent (Article 576). The acknowledged child born out of wedlock may be admitted to the family of the acknowledging parent (Article 259). The acknowledging parent enjoys all and full rights of parental authority (Article 260) and must support the acknowledged child and educate it (Article 261). The child takes the name of the acknowledging parent, or of the father where both parents acknowledge (Article 262). Acknowledgment is irrevocable (Article 256).
Judicial declaration of paternity is provided for in Articles 269-271 or of maternity in Article 272. The judicial declaration of filiation out of wedlock produces the same effect as acknowledgment (Article 277). The Italian Civil Code provides that even children born out of wedlock shall inherit the whole property in the absence of legitimate descendants, ascendants and the spouse of the parent (Article 576).
While acknowledgment under Italian law appears to be similar in many respects to legitimation and insures to the child certain rights of inheritance and support, as well as civil rights, only legitimation by subsequent marriage or by royal or presidential decree gives to the person who is born out of wedlock the attributes of a legitimate child in all respects. A further distinction between acknowledgment and legitimation is apparent in Article 281 of the Civil Code which provides that children who may not be acknowledged may not be legitimated either by subsequent marriage or by royal (presidential) decree. The meaning of the words "legitimate" and "legitimated" in the immigration statute is clear. Because the child in the instant case was neither legitimate nor legitimated, Congress could not have intended her to enjoy nonquota status under section 101 (a) (27) (A). The act makes no provision for children who are merely recognized or acknowledged. The appeal will be dismissed. Order: It is ordered that the appeal be dismissed.
Matter of A----, VP 6-2026, 5 IN Dec. 272, 284 (Atty. Gen., February 2, 1954).
Under similar sets of facts arising under Italian law denials were reached by this Board in the following unreported decisions: Matter of J----, VP 9-4968 (1954); Matter of M----, VP 3-26488 (1954); Matter of D----, VP 2-15411 (1954); Matter of A----, VP 2-15343 (1954); Matter of B----, VP 04-9739 (1954); and Matter of C----, VP 8-I-25058 (1956).
Reference has been made to the case of Compagnie Generale Transatlantique v. United States, 78 F. Supp. 797 (1948), and Matter of B---- S----, VP 13-8541, 6 IN Dec. 305. The former involved the phrase "any child" in section 1993, Revised Statutes, and not a "legitimated child" and the latter applied the law of legitimacy of the forum in the case of a Chinese child.