ODURO

Interim Decision #2946

MATTER OP.ODURO

In Visa Petition Proceedings
A-23287657
.A-23287658
A-23287659
Decided by Board August 12, 1983

(1) Under Massachusetts law, legitimation of a person born out of wedlock is effected only
by an acknowledgment of paternity (or judicial declaration of paternity) and the mar-
riage of his natural parents.
(2) The lawful permanent resident petitioner's natural, acluwwledged offspring who were
born out of wedlock.and whose natural parents never married did not qualify as the
petitioners "legitimated children" pursuant to Massachusetts law as defined in section
101(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. 1101(b)(1)(C), and conse-
quently are Ineligible for preference clansiEcation an his "unmarried con alai daughters"
under section 203(a)(2) of the Act, 8 U.S.C. 1153(a)(2).
ON BEHALF OF PETITIONER: Robert D. Price, Esquire
Price & Madaus, P.C.
2 Malden Street
Holden, Massachusetts 01520
Br: Milhollan, Chairman; Maniatis, Dunne, Mores, and Vacca, Board Members

This matter is before the Board on appeal from the District Director's
decision of July 15, 1982, denying the petitions to classify the beneficiar-
ies as the unmarried son and daughters of a lawful permanent resident
under section 203(a)(2) of the Immigration and Nationality Act, 8 U.S.C.
1153(a)(2). The appeal will be dismissed.
The petitioner is a 43-year-old native and citizen of Ghana who was
admitted to the United States for permanent residence on March 22,
1978, based upon his marriage to either a United States citizen or lawful
permanent resident. The beneficiaries are 20, 18, and 11-year-old natives
and citizens of Ghana. The petitioner submitted unauthenticated t origi-
nal delayed birth certificates from Ghana for each of the beneficiaries
which show the petitioner to be their father. He also executed and

I See 8 C.F:R. 287.6;*Motter of Lau, 16 I&N Dec. 115, 117 (BIA 1976).

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submitted affidavits acknowledging his paternity of the beneficiaries.
The petitioner submitted nothing to show that he ever married the
beneficiaries' natural mothers.
The District Director correctly noted that in order to establish eligibil-
ity for classification as the petitioner's unmarried son and daughters,
the beneficiaries must qualify, or once have qualified, as his "children"
within the meaning of section 101(b)(1) of the Act, 8 U.S.C. 1101(b)(1).
Matter of Bullen, 16 I&N Dec. 378 (BIA 1977). That section provides in
pertinent part:
(1) The term "child" means an unmarried person under twenty-one years of age who
is—
(A) a legitimate child; or
. ..
(C) 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 eighteen years and the
child is in the.legal custody of the legitimating parent or parents at the time of such -
legitimation.
Because the beneficiaries apparently were born out of wedlock and the
petitioner failed to establish that they had been legitimated under either
Massachusetts or Ghanaian law, the District Director concluded the
beneficiaries have never qualified as the petitioner's "children." There-
fore, he denied the petitions.
On appeal, the petitioner argues that he was separately married to
and divorced from the beneficiaries' mothers under Ghanaian customary
tribal law and thus they . were born in wedlock and are legitimate. He
also contends that pursuant to a recent decision by the Massachusetts
Supreme Court, Lowell v. Kowalski, 1980 Mass. Adv. Sh. 1243, 405
N.E.2d 135 (1980), the beneficiaries qualify or once qualified as his
legitimated children under Massachusetts law (his state of residence).
The petitioner did not submit the evidence specified in Matter of
Akinola, 15 I&N Dec. 359 (BIA 1975), and Matter of DaBaase, 16 I&N
Dec. 39 (BIA 1976), to prove his alleged Ghanaian customary tribal
marriages, and divorces. Therefore, he has failed to establish that the
beneficiaries are his legitimate offspring.
Turning to the issue of legitimation under Massachu_etts law, the
term "legitimate," as used in section 101(b)(1)(A) of the Act, was pre-
viously applied only to children torn in wedlock. 'See Matter of James,
15 I&N Dec. 544 (BIA 1975); Matter of Dela Rosa, 14 I&N Dec. 728
(BIA 1974); Matter of Kubicka, 14 I&N Dec. 303 (BIA 1972). More
recently, however, it also has been interpreted to include children born
out of wedlock in countries which have eliminated all legal distinctions
between legitimacy and illegitimacy. See Lau v. Kiley, 563 F.2d 543 (2d
Cir. 1977); Matter of Richard, 18 I&N Dec. 208 (BIA 1982); Matter

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of Mesias, 18 1&N Dec. 298 (BIA 1982) (Haiti); Matter of Clahar,
18 I&N Dec. 1 (BIA 1981)' (Jamaica); Matter of Espinoza, 17 I&N Dec.
622 (BIA 1980) (Bolivia); Mattem of Hernandez, 17 I&N Dec. 7 (BIA 1979)
-

(Guatemala); Matter of Pavlovic, 17 I&N Dec. 407 (BIA 1980) (Yugo-
slavia); Matter of Sanchez, 16 I&N Dec. 671 (BIA 1979) (Honduras);
Matter of Wong, 16 I&N Dec. 646 (BIA 1978) (China).' All such legal
distinctions will be deemed to lave been abolished only where there is
complete equality of filial rights between legitimate children and those
born out of wedlock. Matter of Hernandez, supra. Where differences
in the filial rights of legitimate and illegitimate children do exist, they
often appear in matters of inheritance, as well as for purposes of the
father's rights to visitation or to prevent his child's adoption or removal,
the mother's right to obtain child support, and the criminal liability of
the father for ndnsupport. See Matter of Reyes, 17 1&N Dec. 512 (BIA
1980); Matter of Chambers, 17 I&N Dec. 117 (BIA 1979). '
Similarly, a "legitimated" child under section 101(b)(1)(C) of the Act is
one placed "in all respects upon the same footing as if begotten and born
in wedlock" Pfeifer v. Wright, 41 F.2d 464, 466 (10th Cir. 1930), cert.
denied, 282 U.S. 896 (1931). Acknowledged children, such as the instant
beneficiaries, will therefore be considered "legitimated" only where they
attain the full legal status of legitimate children as a result of the act of
acknowledgement. See Matter of Mourillon, 18 I&N Dec. 122 (BIA.
1981); Matter of Reyes, supra; Matter of Chambers, supra.
Prior to the Lowell case cited by the petitionqr, Massachusetts Gen-
eral Law, chapter 190, section 7, provided that a child born out of wed-
lock could be legitimated only by marriage of his natural parents together
with acknowledgment of paternity by his father. 3 Matter of C—, 9 I&N
Dec. 242, 244 (BIA 1961). The function of this legitimation procedure is
to place such a child on iparity with legitimate children for all purposes_
Re Adoption of a Minor, 338 Mass. 635,156 N.E.2d 801 (1959); Maclntyre
v. Cregg, 350 Mass. 22, 212 N.E.2d 860 (1965).
The Lowell court determined that under the recently adopted "Equal
Rights Amendment" to the Massachusetts Constitution, Mass. Gen_
Law, ch. 190, section 7: was unconstitutional insofar as it absolutely
required that the parents of a child born out of wedlock must marry

2 Only children who are born after the country's laws are changed to eliminate all such
legal distinctions are deemed to be legitimate" for immigration purposes. See ibid. It is
also apparent that children born prior to such a law change are deemed to be "legitimated"
thereby. See Mailer of Clarke, •18 18I' Dec. 369, at p. 6 (BIA 1983); Matter of Cortez.
16 I&N Dec. 289, 290 (BIA 1977). A prior-born child who is so legitimated must be under
18 years of age at the time the law changed in older to qualify as a legitimated child"
under section 101(b)(1)(C) of the Act.
3 An alternative to the father's acknowledgment was (and is) a judicial declaration of
paternity.

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before such child can inherit from his father. Therefore; it held that an
illegitimate child is permitted to inherit from the estate of his natural
father who has acknowledged his paternity to the same extent as the
father's legitimate children. Otherwise stated, the Lowell decision was
carefully circumscribed, holding that an acknowledged illegitimate child
has the same legal status as a legitimate child, but only for purposes of
inheritance.
In response to the Lowell decision, the Massachusetts legislature
amended Mass. Gen. Law, ch. 190, section 7 in 1980 to conform to' hat
ruling. The section now provides, in part, that, "If a decedent has
acknowledged paternity of an illegitimate person or if during his lifetime
or after his death a decedent has been adjudged to be the father of an
illegitimate person, that person is heir of his father . . . ." However, it
is apparent that this is an exception to the basic legitimation rule which
is also set forth in ch. 190, section 7. That section, entitled "When Il-
legitimate Child to Be Deemed Legitimate," still provides that the fun-
damental legitimation rule is: "An illegitimate person whose parents
have intermarried and whose father has acknowledged him as his child
or has been adjudged his father . . . shall be deemed legitimate and shall
be entitled to take the name of his parents to the same extent as if born
in lawful wedlock." Thus, whereas an acknowledged illegitimate child
has coequal rights with legitimate children only for purposes of in-
heritance, Massachusetts law requires both an acknowledgment of pa-
ternity (or judicial declaration of paternity) and the marriage of the
natural, parents in order for a child born out of wedlock to attain the
full legal status of legitimate children for all purposes.'
In view of the foregoing, we hold that under Massachusetts law,
legitimation of a person born out of wedlock is effected only by an
acknowledgment of paternity (or judicial declaration of paternity) and
the marriage of his natural parents.
The petitioner has failed to establish that the beneficiaries were born
in wedlock Furthermore, even though the petitioner apparently has
acknowledged paternity of the beneficiaries, inasmuch as he has not
demonstrated that he ever married the beneficiaries' mothers, he has
failed to establish that they qualify or once qualified as his legitimated
children under section 101 (b)(1)(6) of the Act. Accordingly, they are
ineligible for classification as'his unmarried son and daughters.
ORDER; The appeal is dismissed.
Moreover, because Massachusetts law incorporates a limited exception for acknowl-
edged children in inheritance matters, and yet retains the concept of illegitimacy and
prescribes a specific procedure for legitimation, this belies any alleged equality of
legitimatefiegitimated children and those born out of wedlock, even if acknowledged. We
will not presume that the law creates a distinction without a difference. Sec Matto: of
MourritIon, supra, at 5; Matter of Reyes, supra, at 515; Matter of Cortez, supra n: 2, at
292 (BIA 1977).
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