VP 2-I-22869
Decided by Board April 2, 1957
Legitimation of children, Portugal.
Under Portuguese law, a child born out of wedlock is legitimated only upon the marriage of the natural parents, provided there has also been "recognition" or "affiliation" of the child.
BEFORE THE BOARD
Discussion: The matter comes forward on appeal from the order of the District Director, Boston, Massachusetts, dated December 28, 1956, revoking the approval of the visa petition which was previously granted on December 7, 1955.
The petitioner, a native of Portugal and a naturalized citizen of the United States, seeks preference quota status under section 203 (a) (2) of the Immigration and Nationality Act on behalf of the beneficiary, his natural mother. Section 203 (a) (2) grants preference quota status to "parents" of adult citizens of the United States. By definition in section 101 (b) (1) and (2) of the Immigration and Nationality Act, the relationship of parent arises in respect 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. The question presented is whether the petitioner is to be considered as a legitimate or legitimated child for the purpose of preference status under section 203 (a) (2).
It is conceded that the petitioner was born out of wedlock and that his parents never married. However, the petitioner's birth certificate shows that he was born at Mafra, Portugal, on May 2, 1929, the illegitimate son of A---- M---- F---- and I---- P---- dos S----, both single. The birth certificate further shows that the declaration of birth was made by the mother of the registrant who recognizes him as her son for all legal effects and that the registry was signed by 2 witnesses, the first of whom was the representative of the father of the registered who was so designated by a power of attorney signed by the father. It is contended that this declaration of affiliation made by the parents and filed in the Registry of Births constitutes legitimation under the laws of Portugal; that the affiliation referred to in the Civil Code of Portugal is synonymous with legitimation and has the legal effect thereof; and that children recognized as therein provided are legitimate, although born illegitimate. The file also contains a statement by the natural father to the effect that he made a formal declaration to the Registry of Births for a power of attorney and registered the petitioner as is shown under his own surname of "F----"; that from the time of his birth until the father emigrated to the United States in 1932 the petitioner was continuously in the father's legal custody at his home in Portugal and that he has always recognized him and represented him publicly and officially as his son and has furnished him support and education. It may, therefore, be assumed that there has been an "affiliation" under Portuguese law, but the issue remains as to whether such affiliation constitutes legitimation so as to satisfy the requirements of the immigration law.
We have been furnished with an unofficial translation of the text of the pertinent provisions of the Civil Code of Portugal, as well as Article 354 of the Portuguese Civil Registry. These provisions are set out in the attached Appendix which is made a part hereof. Article 101 deals with legitimate children; Article 119, legitimated children; Article 122, affiliated children; Article 129, rights of affiliated children; Article 1989, succession of illegitimate children; Article 1992, limitation on distribution of inheritances; and Article 1785, distribution of inheritances.
Article 101 provides that children born to a legally contracted marriage after 180 days of the marriage ceremony or within 300 days subsequent to its dissolution or the separation of the spouses, juridically determined by a court decision, are considered legitimate. Obviously this article does not apply as the natural parents herein never became married.
Article 119 provides that a marriage legitimates children born prior thereto to the contracting parties (1) if the said children are recognized by the fathers and mothers on registering the marriage, or were recognized at the time their births were recorded, or in a will or public document, whether prior, or subsequent to the marriage; (2) if the children prove their affiliation by means of a judicial action and judgment. It is further provided that the effects of legitimation begin, in any case, as of the date of the marriage. It, therefore, appears that for legitimation there must be not only recognition or affiliation of the children, but also the marriage of the natural parents.
It is true that Article 122 of the Portuguese Civil Code provides for the affiliation of illegitimate children; that Article 129 provides that affiliated children acquire the right of using their parents' surname, and of being supported by them. Under other portions of the Portuguese Civil Code, Articles 1989, 1992, and 1785, provision is made for the succession of illegitimate children, when affiliated or acknowledged, and for the succession of legitimate or legitimated children, as well as affiliated children, together with limitations on the distribution of inheritances. However, while it is clear that the affiliated or acknowledged child acquires under Portuguese law certain rights such as the right to bear parents' surname and the right to support, as well as certain inheritance rights and probably certain civil rights, the status conferred is somewhat less than that of legitimated children. It is believed that because the child in the instant case was neither legitimate nor legitimated under the Portuguese Civil Code, he does not come within the purview of section 101 (b) of the Immigration and Nationality Act which refers to legitimate or legitimated children. The appeal will be dismissed.
Cf. Robles v. Folsom, 239 F. (2d) 562 (C.A. 2, 1956), in which a child born out of wedlock in Puerto Rico but recognized by his father and thus entitled to inheritance from him in Puerto Rico was not recognized as a legitimate child under the Social Security Act.
Order: It is ordered that the appeal be and the same is hereby dismissed.
APPENDIX
Article No. 101
Children born to a legally contracted marriage after 180 days of the (marriage) ceremony, or within 300 days subsequent to its dissolution or the separation of the spouses, juridically determined by a Court decision, are considered legitimate, saving in the case of the next paragraph.
Article No. 119
A marriage legitimates children born prior thereto to the contracting parties:
1. If the said children are recognized by the fathers and mothers on registering the marriage, or where (recognized) at the time of their births were recorded, or in a will or public document, whether prior, or subsequent to the marriage;
2. If the children prove their affiliation by means of a judicial action and judgment.
Paragraph No. 1. The recognition, which is dealt with in No. 1, may be contested by all interested parties.
Paragraph No. 2. To the actions, which are dealt with in No. 2, shall be made applicable the provisions of Articles 130 and 133.
Paragraph No. 3. The effects of legitimation begin, in any case, as of the date of the marriage.
Article No. 122
All illegitimate children may be affiliated except:
1. The adulterine children.
2. The incestuous children.
Paragraph 1. Adulterine children are those had by any person married at the time of conception, of another not consort to such person.
Paragraph 2. For the above effect, incestuous children means:
1. The children born to consanguineal or affinitative parents, within any degree of direct lineage.
2. The children of consanguineal parents up to a second degree, inclusive, of transverse lineage.
Article No. 129
Children affiliated spontaneously (voluntarily), or by Court Judgment, acquire the rights:
1. Of using their parents' surname;
2. Of being supported by them;
3. Of succession to their ascendants or to have part in the inheritance, as Articles Nos. 1989 and 1992 will provide.
Article No. 1989
Illegitimate children and their descendants, when affiliated or legally acknowledged, succeed ab intestato, not only to their parents, but also to the other ascendants.
Article No. 1992
If, because there should be too many illegitimate children and a third part is not enough as a complement to the portions mentioned in paragraph No. 2 of Article 1785, they will not have a right to anything else and the third part will be shared among them.
Article No. 1785
If the testator has, at the same time, legitimate or legitimated children, or their descendants with right of representation, and affiliated children or their descendants with right of representation, the following will be observed:
1. If the affiliated children were already affiliated at the time the testator contracted matrimony by which he had legitimate children, the share of the former ones will equal the share of the latter less one third.
Article No. 354
In the respective book will be entered the records of legitimations and affiliations, which do not appear in the registers of births or of marriage, that is:
1. Affiliations directly executed in the Civil Registry by one or both parents, either before or after the birth of the children, or after their death.
2. Legitimation of children born before the marriage, executed directly in the Civil Registry.