VP 16-6299.
Decided by Board September 21, 1954.
Preference quota status — Section 203 (a) (4) of Immigration and Nationality Act — Brothers of the half blood — Effect of legitimation under section 230 of the Civil Code of California.
(1) Brothers of the half blood who have the same father and different mothers are brothers within the meaning of section 203 (a) (4) of the Immigration and Nationality Act and are eligible for preference quota status thereunder, provided the petitioner and the beneficiary are both legitimate.
(2) Where the petitioner, who was born out of wedlock, is the half brother of the beneficiary, but was legitimated under section 230 of the California Civil Code, he is eligible to file a visa petition on behalf of the beneficiary.
BEFORE THE BOARD
Discussion: The case comes forward on appeal from the order of the District Director, Los Angeles, dated April 22, 1954, denying the visa petition on the ground that the eligibility of the beneficiary for the classification requested has not been established.
The petitioner seeks preference status under section 203 (a) (4) of the Immigration and Nationality Act on behalf of the beneficiary, an alleged brother of the half blood. They have a common father and different mothers. The beneficiary was born in Italy on November 9, 1921, the son of P---- DeF---- and of E---- F----, who were married on April 16, 1921. The petitioner was born at Los Angeles, California, on May 23, 1928, the son of P---- DeF---- and N---- G----, who were married at Chicago, Illinois, on January 3, 1925. No steps have been taken by the petitioner to establish the termination of his father's first marriage and it may be presumed that such prior marriage was not terminated when the father married for the second time.
There is no question as to the legitimacy of the beneficiary. Counsel contends that the petitioner should also be regarded as legitimate, citing the provisions of Chapter 89, Paragraph 17 of the Illinois Revised Statutes. Inasmuch as the petitioner was born in the State of California, the Illinois Statutes would appear to be inapplicable. Counsel also relies upon section 230 of the Civil Code of California which provides as follows:
The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth.
Counsel in his brief sets forth that the petitioner and his parents have resided in California since the birth of the former in May 1928. The birth certificate of the petitioner submitted in connection with the petition shows the father's name as P---- DeF----. It is apparent that there has been recognition and acknowledgment by the father of the son, reception into the family, and the treating of the son as though he were a legitimate child.
This statute has been construed as a statute of legitimation rather than adoption and the provisions thereof are to be liberally construed. The word "family" is not a technical word but a word of flexible meaning and is to be broadly construed so as to include within its purview even a case where the father is living out of wedlock with a woman not his lawful wife. It, therefore, appears the petitioner is a legitimate child under the provisions of section 230 of the California Civil Code and that he is eligible to file a visa petition on behalf of the beneficiary.
Matter of P----, A7393010, 4 IN Dec. 354, 358 (C.O., 1951); Estate of Baird, 193 Calif. 225; In re McGew, 183 Calif. 177; Rankin v. Rankin, 52 Calif. App. (2d) 231.
Order: It is ordered that the visa petition be approved for fourth preference status.