VP 5-12163.
Decided by Board May 27, 1954.
Preference quota status — Section 203 (a) (3) of the Immigration and Nationality Act — Child — Adoption under Austrian law not legitimation within meaning of section 101 (b) (1) of the act.
A child born out of wedlock who is adopted under Austrian law has not been legitimated by that procedure within the meaning of section 101 (b) (1) of the Immigration and Nationality Act, since Austrian law provides separate procedures for legitimation and adoption each of which confers a distinct family status. Therefore, such adopted child is not eligible for preference quota status under section 203 (a) (3) of the act.
BEFORE THE BOARD
Discussion: The matter comes forward on appeal from the order of the District Director, Baltimore, dated February 2, 1954, denying the visa petition on the ground that the beneficiary cannot be considered a child within the meaning of section 101 (b) (1) of the Immigration and Nationality Act.
The petitioner, a permanent resident alien, seeks preferential status on behalf of the beneficiary under the provisions of section 203 (a) (3) of the Immigration and Nationality Act. This section provides a preference for the children of permanent resident aliens. The term child is defined in section 101 (b) (1) of the Immigration and Nationality Act to include a legitimate or legitimated child.
It is conceded that the beneficiary was born out of wedlock. However, it is claimed that the child has been legitimated by virtue of an adoption which it is alleged under Austrian law is the equivalent of legitimation.
In order to resolve the question presented, inquiry was addressed to the Foreign Law Section of the Library of Congress which under date of May 11, 1954, submitted a memorandum entitled "Adoption and Legitimation under Austrian Law." This memorandum sets forth that Austrian family law is basically regulated by the Austrian General Civil Code of June 1, 1811, as amended. Under this code there are two methods of giving a child a status in the family similar to a child born in wedlock. One is adoption and the other is legitimation.
There exist presently two methods of legitimation. The first is legitimation by subsequent marriage which is automatic. The second is legitimation by act of grace of the president which is termed legitimation pursuant to special petition of grace (gnadengesuch). Thus, legitimation upon special petition of grace is a method of obtaining legitimation different from that by subsequent marriage. It is not adoption.
The memorandum then sets forth translation of the pertinent provisions of the Austrian General Civil Code. Section 161 relates to legitimation by subsequent marriage and provides that children who are born out of wedlock and have joined the family by virtue of the subsequent marriage of their parents shall, along with their own offspring, be counted among the children born in wedlock; however, they may not attack the status of primogeniture and other rights already acquired by the legitimate children conceived in a marriage entered into in the meantime. Section 162 of the Austrian General Civil Code refers to legitimation by act of grace and provides that illegitimate birth shall not prejudice a child with respect to its civil rights and means of making a living. For this purpose no special act of grace by the president of the federal republic shall be required whereby the child is declared legitimate. The parents only may apply for such a legitimation in cases where they desire that the child should, in the same manner as a legitimate child, share the privileges of their estate and any property which may devolve, without restriction, through descent and distribution. This act of grace shall not affect the other members of the family.
The subject of adoption is dealt with in sections 179 to 185 of the Austrian General Civil Code. Section 179 provides that persons who have not taken solemn vows and who have no legitimate children of their own, may adopt. Section 181 provides that the adoption may take place only with the consent of the legitimate father, or if unobtainable, with the consent of the mother, guardian and the court. Section 183 provides that unless otherwise provided by law, the same legal rights shall exist between adoptive parents and adoptive child and his or her descendents as between legitimate parents and their children.
The subject of Inheritance by Operation of Law of Legitimated Children under Austrian Law is dealt with in section 752, section 533 and section 555 of the code. These sections provide for differences in inheritance rights as among children born out of wedlock and legitimated by subsequent marriage of the parents; an illegitimate child, legitimated by the president's act of grace; and adoptive children.
It is to be noted, however, that Austrian law makes a distinction between legitimated children and adopted children. The fact that there exist two procedures, the one to effect legitimation and the other to effect adoption, makes it clear that these two procedures are not the same but are different both in their application and in their legal effect. Similar statutes exist in this country. The terms, however, are not interchangeable, but provide for the acquisition of two distinct family statuses. The existence of such different statuses leads to the conclusion that adoption is not legitimation and does not satisfy the requirement of the immigration statute that a child as defined is one who has been legitimated.
The petitioner is the mother of the beneficiary born out of wedlock. This relationship does not confer a preferential status upon the beneficiary ( Matter of A----, VP 6-2026, 5 IN Dec. 272 (A.G., 1954)). Nor does the fact that the beneficiary has been adopted assist the beneficiary in obtaining preferential status. Upon the present record the visa petition must be denied. It has been indicated that there is pending with the Austrian Federal President a special petition of grace or "gnadengesuch." As already indicated, this latter procedure would be equivalent to legitimation and would confer the required status upon the beneficiary. Upon the present record the petition will be denied. Should the application for legitimation by act of grace be completed, the legitimating parent may then file another petition for an immigrant visa on behalf of the beneficiary.
Order: It is ordered that the appeal be and the same is hereby dismissed.