A-24535432
Decided by Board May 9, 1983
(1) In order to obtain a preference status for the beneficiary as his unmarried son under section 203(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(2), a petitioner must establish that the beneficiary qualified as his "child" within the meaning of subsection (A) or (C) of section 101(b)(1) of the Act, 8 U.S.C. 1101(b)(1).
(2) Under the Civil Code of Ecuador, as reinstated on August 7, 1970, by Supreme Decree 180, there is no distinction between legitimate and illegitimate children and all children have equal rights under the law.
(3) Where the beneficiary, a native and citizen of Ecuador, was born out of wedlock in 1953, and acknowledged by his natural parents in 1969, prior to his 18th birthday, he is deemed a legitimate or legitimated child for immigration purposes under section 101(b) (1)(A) or (C). Matter of Gomez, 16 IN Dec. 72 (BIA 1976), distinquished.
ON BEHALF OF PETITIONER: Rhoda K. Dryer, P.C. 271 North Avenue New Rochelle, New York 10801
ON BEHALF OF SERVICE: David B. Hopkins Appellate Trial Attorney
BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members
The petitioner has applied for visa preference status for the beneficiary as his unmarried son under section 203(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(2). In a decision dated August 25, 1982, the District Director denied the petition. The petitioner has appealed. The appeal will be sustained and the visa petition will be approved.
The petitioner is a 65-year-old native of Ecuador and lawful permanent resident of the United States. The beneficiary is a 29-year-old native and citizen of Ecuador. The record reflects that the beneficiary was born to the petitioner and Ninfa Luz Palma Olvera on May 14, 1953, and that his birth was recorded at the Civil Registry on April 2, 1969. The record further reflects that the beneficiary's natural parents were married in New York on June 6, 1974.
In denying the petition, the District Director relied upon Matter of Gomez, 16 IN Dec. 72 (BIA 1976), wherein we held that, under Ecuadorean law, legitimation may be accomplished only by the marriage and acknowledgment of the child by both parents. The District Director, finding that the beneficiary had been born out of wedlock and was over the age of 18 at the time of his parents' marriage, concluded that the beneficiary did not qualify for visa preference status under section 101(b)(1)(A) or 101(b)(1)(C) of the Act.
On appeal, the petitioner contends that the beneficiary was properly legitimated in Ecuador prior to his 18th birthday. In this regard, he submitted a memorandum from the Library of Congress, dated February 26, 1980 (Appendix A), and a September 3, 1982, letter from the Director of the Legal Department, Consulate General of Ecuador.
The Library of Congress memorandum traces Ecuadorean legitimation requirements from 1936 until February 1980. A review of the memorandum reflects that various constitutional and civil code provisions regarding legitimation have been enacted, revoked, and subsequently reinstated.
As set forth by the Library of Congress, article 29 of the 1967 Ecuadorean Constitution provides that children, whether born in or out of wedlock, have the same rights with regard to name, upbringing, education, and inheritance. The memorandum reflects that Law 256 of June 4, 1970, amended the Civil Code by eliminating the terms "legitimate" and "illegitimate" when referring to children, by suppressing all provisions concerning legitimation, and by providing that no distinction should be made between legitimate and illegitimate children. This law apparently was repealed by a de facto decision of the President on June 22, 1970, but was subsequently reinstated on August 7, 1970, by Supreme Decree 180. The Library of Congress ultimately concludes that the current Civil Code of Ecuador (1970), which is based on the 1967 Constitution, makes no distinction between legitimate and illegitimate children and that a child is "legitimated" or "recognized" by the acknowledgment of either or both parents. Citing article 261 (2) of the Civil Code, the Library of Congress notes that acknowledgment is permitted from the time of the child's conception.
The letter from the Ecuadorean Consulate's legal director states that, according to article 22 of the March 27, 1979, Constitution, all children, regardless of their filiation, i.e., whether they are legitimate or illegitimate, enjoy the same legal rights.
The Service opposed granting the petition at oral argument. However, the record includes a September 15, 1980, letter from the Service's Associate Commissioner for Examinations to the Department of State's Visa Services Directorate, in which it is stated that the law governing legitimation in Ecuador changed effective August 7, 1970, and that all children born in Ecuador after August 7, 1970, or who were under 18 years of age on that date and who were acknowledged by one parent should be considered legitimate children under section 101(b)(1)(A) of the Act or legitimated children under section 101(b)(1)(C) of the Act. The Board has not been advised that the Service has withdrawn from this position
Under section 203(a)(2) of the Act, a lawful permanent resident petitioner may accord visa preference status to an unmarried son, if the son qualifies as the petitioner's child under section 101(b)(1) of the Act. See Matter of Coker, 14 IN Dec. 521 (BIA 1974).
As relevant, subsections (A) and (C) of section 101(b)(1) of the Act define a "child" as a legitimate child 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, whether in or outside the United States, if such 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.
In view of the Library of Congress memorandum, which is consistent with the position taken by the Associate Commissioner for Examinations and the letter from an Ecuadorean consular official, we find that Ecuador has abolished the legal distinction between legitimate and illegitimate children.
We now hold that a child who was born in Ecuador on or after August 7, 1970, or who was under 18 years of age on that date and who was acknowledged prior to his 18th birthday may be included within the definition of a legitimate or legitimated "child" as set forth in section 101(b)(1) of the Act. Thus, it should be clear that our holding is retroactive only insofar as it applies to a child who was under 18 years of age on August 7, 1970.
Matter of Gomez, supra, is not applicable in these proceedings, as the facts in that case pertained to a 1930 version of the Ecuadorean Civil Code, as amended by Supreme Decree No. 94 of November 23, 1935.
In the present case, we conclude that, at one time, the beneficiary qualified as the child of the petitioner under section 101(b)(1) of the Act. The record reflects that the beneficiary was acknowledged prior to his 18th birthday by the petitioner and that the beneficiary was under the age of 18 on August 7, 1970. As the record does not reflect that the beneficiary is married, the appeal will be sustained and the visa petition will be approved.
ORDER: The appeal is sustained and the visa petition is approved.
APPENDIX A
LEGITIMATION
Ecuador
This report concerns the requirements for legitimation in Ecuador from 1936 to the present.
During this time period, legitimation was apparently controlled by a number of provisions contained in the different constitutions that were successively in force in the country and in the Civil Code. Since these provisions may not reveal a clear sequence, a brief legislative history follows.
A. Civil Code Provisions in Force until the Enactment of the 1945 Constitution
As of 1945, the Civil Code established and defined two basic categories of children: legitimate and illegitimate. Legitimate children were those conceived during a fully valid or putative marriage of their parents, as well as those whose parents had married each other after their conception. Illegitimate children were those who had been voluntarily acknowledged as such by either parent or both parents, as well as those who had been declared to be so by judicial decision.
A 1930 version of the Ecuadorean Civil Code as amended by Supreme Decree 94 of Nov. 23, 1935, was consulted for this part of the report: Codigo Civil [C. Civ. I] [Talleres Graficos Nacionales, Quito, 1930].
C. Civ. I, arts. 30, 31 and 269.
Regarding children born out of wedlock, the Code provided that they could be acknowledged by either parent or both parents. In such cases, these children were to enjoy the rights assigned to them by law in relation to the acknowledging parent or parents. The acknowledgment of children could be made by means of a public instrument which could be: (a) notarial, (b) issued before a judge and three capable witnesses, (c) on a will, (d) a personal statement issued at the time of registration of the birth, or (e) a part of the marriage record of the parents. A child who had not been voluntarily acknowledged by the parents could petition the courts to issue a declaration of filiation in regard with either parent or both parents.
C. Civ. I, arts. 201 and 269.
C. Civ. I, arts. 277-289.
With regard to legitimation, the Civil Code, as amended by Supreme Decree 94 of November 21, 1935, provided that the marriage of the parents to each other produced the effect of legitimating ipso jure the children conceived or born prior to the celebration of that marriage. Children born prior to the marriage who were not acknowledged by both parents did not benefit by the ipso jure legitimation by subsequent marriage of their parents; the acknowledgment by both parents as described above is necessary. This acknowledgment could take place at any time.
J. Torres, Compilacion de Reformas al Codigo Civil, Leyes y Reglamentos Conexos [Talleres Graficos del Ministerio de Gobierno, Quito, 1942].
Id. at 17, art. 11, amending C. Civ. I, art. 200.
In short, legitimation of children born out of wedlock required two basic elements: (1) acknowledgment of filiation by both parents and (2) subsequent marriage of the children's parents to each other.
B. Provisions of the 1945 Constitution
On March 6, 1945, a new Constitution was enacted which provided that legitimate and illegitimate children had the same rights to support and inheritance. The new Constitution also provided that in registering births no statement could be required concerning the status of filiation. The Constitution did not further elaborate on the effects of these new rules upon the existing provisions of the Civil Code. The only other applicable provision was contained in article 163, which provided that any laws, decrees, regulations, ordinances, etc., which were in any way contradictory to it or which departed from its text had no validity.
Constitucion, art. 142 (3) (1945) [R. Borja y Borja, Las Constituciones del Ecuador (Ediciones Cultura Hispanica, Madrid, 1951)] (hereinafter cited as Borja).
Id., art. 142 (4). This provision implied an important change in the existing system where the Registry of Births at the Civil Registry was formed by three sections: (1) for legitimate children, (2) for illegitimate children, and (3) for children either abandoned or with unknown parents.
Constitucion, art. 163 (1945) (Borja at 622).
This Constitution was in force for only a few months, however, and therefore, according to Dr. Juan Larrea Holguin, its provisions did not affect other laws governing the subject or judicial decisions rendered on the matter after its enactment.
Dr. Larrea Holguin is a professor of law at the Universidad Catolica del Ecuador, and author of numerous books and articles concerning civil law. He has also been active in the drafting of bills amending Civil Code provisions.
J. Larrea Holguin, Igualdades de los Conyuges e Igualdades de los Hijos 7-9 (Corporacion de Estudios y Publicaciones, Quito, 1967). It should also be noted that, in preparing this report, several updated versions of the Civil Code were consulted and appear to contain no amendments based on the 1945 Constitution.
C. Provisions of the 1946 Constitution
On December 31, 1946, the Constitution of 1945 was repealed and replaced by a new one which made a differentiation between legitimate and illegitimate children regarding inheritance rights. It also provided the following:
Constitucion, art. 164 (1946) (Borja at 681).
Art. 165. The law shall regulate all matters relating to filiation and its rights and investigation of paternity. In registering births, no statement may be required concerning the status of filiation.
No significant amendments were apparently introduced to the Civil Code concerning this subject; therefore, the legal status of filiation and legitimation remained the same as described in section A above until May 25, 1967, when a new Constitution entered into force.
The new Constitution was enacted, published in the Registro Oficial and entered into force on the same date, May 25, 1967.
D. Provisions of the 1967 Constitution
The new Constitution regulated this subject in the following terms:
Art. 29. . . . Children, whether born in or out of wedlock, have the same rights with regard to name, upbringing, education and inheritance.
The law shall regulate matters pertaining to filiation and shall facilitate investigation as to paternity.
In registering births, no statement shall be required concerning the status of filiation.
This provision and others concerning various matters were contrary to the existing provisions of the Civil Code and related laws and regulations. The Constitution provided its own supremacy in the following terms:
Art. 257. The Constitution is the supreme law of the State. All other laws must be in conformity with constitutional principles; therefore, any laws, decrees, regulations, ordinances, provisions, and public treaties that are in any way contradictory to it are null and void.
Art. 260. This Constitution repeals all previous juridical precepts that are contrary to its provisions, whether issued by legitimate authorities or by de facto governments, so that any laws, decrees, regulations, decisions, orders, or resolutions issued before the Constitution takes effect shall be in force only insofar as they are in conformity with it, and provided that they are not or have not been repealed or revoked, with the exception of rights validly acquired in accordance with such precepts.
E. Current Civil Code Provisions
Given the constitutional provisions in force, a new version of the Civil Code was necessary in order to adapt its provisions to the new norms and to clarify the existing legal situation in several areas. A special commission was charged with drafting a bill containing the necessary amendments to the Civil Code.
The draft prepared by the special commission was almost entirely accepted by the Legislative Commission of Congress. The Legislative Commission expressed the opinion, however, that no distinction should be made between legitimate and illegitimate children, so that all children should have not only the same rights but also the same denomination.
6 J. Larrea Holguin, Derecho Civil del Ecuador 9 (Corporacion de Estudios y Publicaciones, Quito, 1970) [hereinafter cited as Larrea II].
Congress approved this bill in the terms established by its own Legislative Commission and sent it to the President for its enactment. The President, however, objected to the part of the bill that eliminated the categories of legitimate and illegitimate children because he understood that "the Political Constitution in force does not imply that the categories of legitimate and illegitimate children have disappeared." The Legislative Commission reiterated its position and Congress overrode the President's objections. Finally on June 4, 1970, the law amending the Civil Code was enacted.
Letter of President Jose M. Velasco to the Permanent Legislative Commission of Congress, Apr. 1, 1970, cited in Larrea II at 318.
Larrea II at 326.
Law 256 of June 4, 1970, Registro Oficial [R.O.], June 4, 1970.
The new law eliminated the expressions "legitimate" and "illegitimate" from the Civil Code when they referred to children, and all of the provisions concerning legitimation were suppressed. The procedures for acknowledging children born out of wedlock, however, remained the same as described earlier, although the numeration of the articles of the Civil Code dealing with them was changed. The only novelty contained in the new Code on this subject was that the acknowledgment was now permitted from the time of the child's conception.
C. Civ. II, art. 261 (2).
F. New Constitutional Developments
As said before, the Civil Code was amended in order to adjust its provisions to the 1967 Constitution. However, on June 22, 1970, several days after the amendments were enacted, the President in a de facto decision assumed all the powers of the State, repealed the 1967 Constitution and declared the 1946 Constitution to be in force "to the extent to which it is not contrary to the purposes of the Government." Although both Constitutions did not differ substantially in other matters, they were in disagreement with regard to the existence of legitimate and illegitimate children. The 1946 Constitution expressly acknowledged the categories and granted better inheritance rights to legitimate children. This fact created uncertainty about the applicability of the recent reforms to the Civil Code that was finally resolved by the promulgation of Supreme Decree 180 that declared in force the amendments of June 4, 1970.
Constitucion, art. 164 (1946) (Borja at 681).
Supreme Decree 180 of Aug. 7, 1970, R.O., Aug. 7, 1970.
On January 15, 1972, a new de facto Government took power and issued a decree repealing the 1946 Constitution and declaring in force the Constitution of 1945.
On January 11, 1976, a Military Junta took power and declared in force once again the 1945 Constitution "in all matters in which it is not inconsistent with the purposes of political transformation."
On January 15, 1978, a national referendum approved a new Constitution, which took effect on August 10, 1979, with the inauguration of the President and Vice President of the Republic elected in July 1978. This new charter states that in registering births and in identification documents no statement may be made as to the status of filiation.
Constitucion Politica de la Republica de Ecuador, art. 22, R.O., Mar. 27, 1979.
Apparently these last constitutional changes had no bearing on the Civil Code provisions concerning legitimation. No judicial precedents or legal literature on the subject are available to better interpret this legal situation. The only additional information available is a provision in the new Civil Registry Law. Article 129 of this law provides that "for all legal purposes, acknowledgment and legitimation of children shall be considered equivalent."
Decree 278 of Apr. 2, 1976, R.O., Apr. 21, 1976.
The Code of Minors currently in force, enacted on June 2, 1976, also makes no distinction between legitimate and illegitimate children. It specifically extends its protection and benefits to all children regardless of their family status.
R.O., June 14, 1976.
In conclusion, it appears that under the early Civil Code and related laws the basic requirements for legitimation were the acknowledgment of the child by both parents and their subsequent marriage to each other, while under the current Civil Code there is no longer a distinction between legitimate and illegitimate children; therefore only the acknowledgment by either or both parents is required for establishing filiation.
Prepared by Eduardo Abbott Legal Specialist Hispanic Law Division Law Library, Library of Congress April 1978 Updated February 1980