VP 07-I-17306
Decided by Board March 26, 1957
Preference quota status — Section 203 (a) (4), Immigration and Nationality Act — Legitimation in Italy.
Acknowledgment of a child born out of wedlock by an unmarried parent at any time and by a married parent after his marriage has been dissolved by death of his spouse, plus the subsequent marriage of the 2 natural parents, results in legitimation under article 252 of the Italian Code of 1942 and the provisions of the Italian Code of 1865.
BEFORE THE BOARD
Discussion: This matter comes forward on appeal from the order of the District Director, Buffalo, New York, dated October 10, 1956, denying the visa petition on the ground that the beneficiary does not qualify as a sister as contemplated by section 203 (a) (4) of the Immigration and Nationality Act, in that she was born of his father and another woman while the father was still married to the petitioner's mother and that the subsequent marriage of the father to the mother of the beneficiary did not legitimate the beneficiary's birth.
The petitioner was born in Italy on December 23, 1902, his father being S---- D---- and his mother F---- R----, who were legally married on December 15, 1895. The beneficiary was born October 12, 1931, in Italy. In connection with the appeal a birth certificate of the beneficiary has been submitted which contains a marginal notation to the effect that she was legitimized through the subsequent marriage of her parents, S---- D---- and A---- R----, on June 25, 1955. A marriage certificate of the beneficiary's parents has also been submitted, as well as a death certificate showing the decease of the petitioner's mother on May 29, 1950. It, therefore, appears that the petitioner and the beneficiary have a common father but different mothers and that the petitioner and the beneficiary are half brother and half sister.
Section 203 (a) (4) of the Immigration and Nationality Act grants preference quota status to a sister of a citizen of the United States. The petitioner is a naturalized citizen. The file indicates that the denial was based on the Italian Civil Code which, prior to its amendment on April 21, 1942, provided that where a child was conceived out of wedlock and one of the parents was married to a person who was not the other parent, the child could never be legitimated. This situation arose as a result of the provisions of the 1865 Italian Code which provided that although generally legitimation was effected by the subsequent marriage of the child's parents or by royal decree (article 194), such legitimation could not be accomplished if the child could not be legally recognized (article 195), and acknowledgment for the purpose of legitimation was not recognized for a child born of the union of persons, one of whom at the time of the union was already married to another (article 180).
However, the birth certificate of the beneficiary contains a marginal notation to the effect that she was legitimized through the subsequent marriage of her natural parents on June 25, 1955. Such legitimation must necessarily have included a recognition which apparently was pursuant to article 252 of the Italian Civil Code of 1942 which provides that all adulterine children, to wit, those produced by unlawful connection between 2 persons, who at the time when the child was begotten were, either of them, or both, married to another person, might be acknowledged at any time by the parent who was not married when the child was begotten, and by the other parent after his marriage was dissolved by death of the other spouse.
Accordingly, there appears to have taken place as to the beneficiary a legitimation by recognition pursuant to article 252 of the Italian Civil Code of 1942 and by the subsequent marriage on June 25, 1955, of the natural parents of the beneficiary. It, therefore, appears that the petitioner and the beneficiary are now the legitimate offspring of a common father and are legitimate half brother and half sister. Under the circumstances, the beneficiary would appear to be eligible for preference status under section 203 (a) (4) ( Matter of C----, VP 3-I-74405, 6, I. N. Dec. 617).
Order: It is ordered that the appeal be sustained and that the visa petition be approved on behalf of the beneficiary for preference status pursuant to section 203 (a) (4) of the Immigration and Nationality Act.