VP 20-A-21288
Decided by Board November 5, 1956
Nonquota status — Illegitimate child — Legitimation in France.
Under the French Civil Code, a child born out of wedlock is legitimated by the subsequent marriage of his natural parents plus acknowledgment before or at the time of the marriage. Since the citizen petitioner is not the natural father of the beneficiary child for whom nonquota status is sought, petitioner's acknowledgment of the child and marriage to the natural mother will not be recognized as constituting legitimation. Hence, the beneficiary does not meet the definition of "child" in section 101 (b) (1) and is not accorded nonquota status under section 101 (a) (27) (A) of the act.
BEFORE THE BOARD
Discussion: The matter comes forward pursuant to certification of the order entered on August 28, 1956, by the Assistant Commissioner, Examinations Division, denying the petition for nonquota status on behalf of the beneficiary.
The petitioner, a citizen of the United States, seeks nonquota status on behalf of the beneficiary. The beneficiary was born on August 12, 1953, at La Rochelle, France, out of wedlock. The petitioner, who is admittedly not the natural father of the beneficiary, married the mother of the beneficiary on April 4, 1956. The supporting brief sets forth that the child was recognized by her mother on August 28, 1953, and by her father on March 21, 1956, prior to the date of the marriage. These facts are set forth on the margin of the beneficiary's birth certificate which also indicates that the beneficiary was legitimated by the marriage of the petitioner and N---- J---- M---- C----. A certificate dated May 23, 1956, from the public prosecutor of La Rochelle, France, certifies that by virtue of Article 331 of the Civil Code the child, A---- J----, having been recognized by her father and mother, has been legitimated by the subsequent marriage of her parents and has the same rights as a legitimate child born in wedlock. Another certificate dated July 25, 1956, by the public prosecutor at La Rochelle, France, sets forth that a child is legitimated by the marriage of those who have acknowledged the child prior to their marriage. The certificate further indicates that it matters not that he who acknowledges the child as his son be the real father; that every day, in France, women have their children acknowledged by their fiances, and such children thereby acquire the status of legitimate offspring subsequent to the marriage of the mothers and the "fathers" who have acknowledged them as their sons.
A child of a citizen is eligible for nonquota status. The term "child" is defined in section 101 (b) (1) of the Immigration and Nationality Act as 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, 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. The petitioner has submitted an affidavit that the beneficiary has her residence and domicile in France and that at the time of her legitimation she was in the legal custody of his wife and him. The petitioner is presently stationed abroad with the United States Army.
The law of France regarding legitimation would appear to be applicable. Article 331 of the French Civil Code (Law of April 25, 1924) provides that children born out of wedlock other than those born of incestuous or adulterous intercourse are legitimated by the subsequent marriage of their father and mother, when the latter have lawfully acknowledged them before their marriage, or when they acknowledge them at the time of its celebration; in the latter case, the officer of civil status who celebrates the marriage shall state in a separate instrument that the acknowledgment and legitimation have taken place. Article 339 provides that all acknowledgments on the part of the father or mother and also all claims on the part of the child can be contested by all those who are interested in doing so. Article 338 provides that a natural child who has been acknowledged can never claim the rights of a legitimate child.
The foreign law section of the Library of Congress has supplied a memorandum in regard to legitimation under French law by one not the natural father. Legitimation is regulated by the French Civil Code in Articles 331-333. It may be defined as a fiction of the law whereby a child born before the marriage of the parents, and acknowledged before or at the time of such marriage, becomes legitimate. The most important feature mentioned in the definition is the requirement that the child to be legitimized be legally acknowledged. This is a mandatory provision of the French law. Without it, the child remains illegitimate, even though the parents later marry. Acknowledgment establishes the legal bond of filiation between the parent and child and thereby gives rise to certain rights ( e.g., the right of inheritance) which the law does not accord the purely natural relationship. At the time the French Civil Code was being drafted it appears to have been an accepted custom to legitimate children without regard to the question whether or not the children actually were the offspring of the legitimating parent. For this reason the codifiers included the requirements that the parent acknowledge the child as his own by a public notarized document. However, experience has shown that the requirement of prior acknowledgment has not accomplished the purpose for which it was enacted. Today, in practice, legitimation does sometimes serve the purpose for which the law had only provided adoption. Men about to marry frequently legitimate such offspring as proof of their affection for the woman they are marrying and as an act of charity toward the child. The mayor or a civil status official, though aware of the situation, will not hesitate to receive the declaration of legitimation.
Since this practice has, as is described above, received some measure of official acceptance, the question arises as to how the problem is resolved when a dispute arises over the "spurious" acknowledgment. Article 330 of the Code states that all acknowledgments may be contested by all those who have an interest in doing so. In interpreting this provision, case law and doctrine have given the term "those interested" a restrictive meaning. It has limited the group to those who are immediately affected by the legitimation and are concerned because of family honor, pride, or pecuniary reasons (inheritance). These include, among others, the child involved, the acknowledging person, the other parent (of the other sex), heirs of the acknowledging person, and others. However, under French law the state may not be considered an interested party.
The visa petition seeks a benefit under the immigration laws in behalf of the beneficiary, to wit: nonquota status. Authority is granted in section 205 (c) to the Attorney General to determine whether the alien in respect of whom the petition is made is eligible for nonquota immigrant status under section 101 (a) (27) (A). It is manifest, therefore, that the Attorney General has an interest in the status of the beneficiary and may make a determination thereon. As has been set forth, the provisions of Article 331 of the French Civil Code provide that children born out of wedlock are legitimated by the subsequent marriage of their father and mother when the latter have lawfully acknowledged them before their marriage or at the time of its celebration. As has been indicated above, there has arisen a practice of "spurious" acknowledgments in regard to an illegitimate child who is not the natural child of one of the parties to the marriage. Such spurious acknowledgments may be contested by those having an interest in doing so. In the instant case, it is conceded that the beneficiary is not the natural child of the petitioner. In view of the existence of the requirement in the French Civil Code of acknowledgment plus marriage between the natural parents for legitimation, it does not appear that the action taken in the instant case with regard to the beneficiary, who is not the natural child of the petitioner, constitutes a legitimation for the purpose of the immigration laws. The visa petition will be denied.
In passing, it is noted that there is no evidence before us of an adoption by the petitioner of the beneficiary in accordance with the French law. In the event the beneficiary were adopted, she would be eligible for preference status under section 203 (a) (4) of the Immigration and Nationality Act. It may be observed that it appears a visa would be readily obtainable under the fourth preference portion of the French quota.
Order: It is ordered that the visa petition be and the same is hereby denied.