Child Defined for Immediate Relative Petition under Recent Cases
Prior to May 1998

A. In re Bueno, Int. Dec. 3328 (BIA Sept. 24, 1997), the BIA upheld the denial of a visa petition filed by the petitioner to grant the beneficiary preference status as the petitioner's legitimated son ruling that petitioner did not prove paternity.

When the petitioner, a citizen of the Dominican Republic, filed a visa petition on behalf of his son, he included only a copy of his alien registration receipt card and a copy of the beneficiary's birth certificate in support of his petition. The birth certificate was issued seven years after the date of birth listed on the certificate. The RSC director sent a notice to the petitioner requesting additional information which would establish that the petitioner is in fact the biological father of the beneficiary, and that the petitioner and beneficiary shared a bona fide parent-child relationship. The petitioner failed to respond to this request, and his visa petition was subsequently denied.

On appeal, the petitioner provided several additional pieces of documentation; however, only an affidavit from the beneficiary's mother stated that the petitioner is the beneficiary's father. The Immigration and Naturalization Service opposed the appeal, arguing that the evidence presented by the petitioner failed to provide adequate proof of paternity because the birth certificate was obtained seven years after the beneficiary's birth.

The Board agreed and found that the petitioner had not proven by a preponderance of evidence that the beneficiary is fully qualified for the preference classification. The Court found that the birth certificate and affidavit of the mother provided by the petitioner did not establish that the beneficiary was the petitioner's child because of the potential for fraud inherent in both documents. The Board found that without independent verification, a delayed birth certificate does not necessarily offer conclusive evidence of paternity even if it is un-rebutted by contradictory evidence and therefore the certificate must be evaluated in light of the other evidence in the record.

After denying the visa petition, the Board noted that the petitioner may file a new visa petition on behalf of the beneficiary if he obtains additional evidence proving paternity.

B. In re Martinez, Int. Dec. 3329 (BIA Sept. 24, 1997) issued on the same day, the BIA upheld the denial of a visa petition for the petitioner's biological daughter ruling that the beneficiary had not been legitimated under the laws of the Dominican Republic prior to her 18th birthday, and the petitioner failed to meet his burden of showing the beneficiary shared a bona fide parent-child relationship.

The Board used a similar legal analysis to the one it adopted In re Bueno to analyze the facts in this case. The BIA applied the statutory definition of child to the facts of the case. Since the record contained no evidence that the petitioner is or was married to the mother of the beneficiary, the Board found that the beneficiary did not qualify as the petitioner's child under the Immigration and Nationality Act.

The Board then considered whether the beneficiary was the petitioner's natural child, whether she was legitimated under the laws of the Dominican Republic, whether this legitimization occurred before she reached the age of 18, and whether she was in her fathers legal custody at the time of legitimization. Unlike In re Bueno, the petitioner in this case provided ample and convincing evidence to meet the paternity requirement. The Board found, however, that the beneficiary had not been legitimated under the laws of the Dominican Republic before she turned 18, and that the petitioner failed to present enough evidence to show that he and the beneficiary had a bona fide parent-child relationship. Therefore, the beneficiary did not qualify as the petitioner's child and was ineligible for preference status accordingly.

As In re Bueno, the Board noted that the petitioner may file a new visa petition should he hereafter be able to produce additional, probative evidence showing that a bona fide parent-child relationship existed between the parties prior to the beneficiary's 21st birthday.