In light of the RSC director's certification of this record to us for review, we undertook our own examination of the laws of Peru in order to ascertain the current legal status of children born in and out of wedlock in that country and to determine how those laws may affect the visa petition under consideration in the instant case. As a result of our examination, we conclude that there was a change in Peruvian law on November 14, 1984,2 that served to place children born out of wedlock in the same legal position as children born in wedlock in all respects once "extramarital filiation" is established according to the legal procedures of Peru.3 See, e.g., C.C., arts. 235, 818.4 Accordingly, we modify our holdings in Matter of Quispe, supra, and Matter of Breninzon, supra. Thus, a child born out of wedlock who was under 18 years of age on November 14, 1984,5 or who was born on or after in civil registers and any other identity document." However, a reading of Article 6 of the 1979 Constitution of Peru, which was examined by the Board in Matter of Breninzon, supra, at 41, indicates that Peru had already determined at that time that "[a]ll children have equal rights. Any reference concerning the civil status of the parents and the nature of the parentage of the children in civil registries and in identification documents is prohibited." In Matter of Breninzon, we held that regardless of the language of Article 6 of the 1979 Constitution, Peru had not eliminated all distinctions between children born in wedlock and children born out of wedlock, as the distinction with regard to inheritance rights between the two groups of children remained intact. Id. As the above-quoted language of Article 6 of the 1993 Constitution is, in essence, the same as the language found in Article 6 of the 1979 Constitution, we cannot base a decision in the instant case on Article 6 of the 1993 Constitution, nor on Articles 386 through 388 of the Civil Code, as they alone do not indicate that full "equality of status" between children born in wedlock and children born out of wedlock currently exists. 2All of the articles of the Civil Code discussed in this decision were signed on July 24, 1984, and went into effect on November 14, 1984. We note that, in his decision, the RSC director mistakenly stated that the cited provisions of the Civil Code went into effect on October 31, 1993. That date, however, appears to be the effective date of the Constitution. 3Article 387 of the Civil Code states that "[r]ecognition and the ruling declaring paternity or maternity are the only methods of proof of extramarital filiation." With regard to recognition, Article 390 of the Civil Code provides that "[r]ecognition is recorded in the registry of births, in a public legal document or in a will." If the recognition is recorded in the registry of births, Article 391 of the Civil Code provides that it "may be done at the time the birth is registered," as was done in this case. "Article 235 of the Civil Code provides that "parents are required to provide for their under-age children's support, protection, education and upbringing, depending on their situation and possibilities. All children have equal rights." More importantly, Article 818 of the Civil Code provides that "[a]ll of the children have equal inheritance rights with respect to their parents. This stipulation covers children of the marriage [and] extramarital children who are voluntarily recognized or declared by a ruling, with respect to the inheritance of the father or the mother and their relatives...." "In its brief, the Service requests that we use January 1, 1993, as the date upon which a child in question must have been under 18 years of age in order to be legitimated, because, the Service claims, that was the effective date of the 1993 Constitution. As discussed above, the Constitution was not the law that placed children born out of wedlock in the same legal position as children born in wedlock, see supra note 1, and therefore we cannot accept its effective date as the date upon which a child in question must have been under 18 years of age in order to be legitimated. that date, may qualify as the legitimated child of his or her father, if the requirements discussed above for proof of “extramarital filiation" are met before the child's 18th birthday. All children for whom "extramarital filiation" was not established before their 18th birthday or who were 18 years of age or older on November 14, 1984, must continue to meet the requirements for legitimation under the former Peruvian law, as discussed in Matter of Quispe, supra, and Matter of Breninzon, supra. Based on the foregoing, we conclude that the beneficiary in the instant case has been legitimated under the laws of her residence or domicile prior to reaching the age of 18, as required by section 101(b)(1)(C) of the Act. We also find that the petitioner has met the legal custody requirement of section 101(b)(1)(C) of the Act, as interpreted in Matter of Rivers, 17 I&N Dec. 419 (BIA 1980) (holding that a natural father is presumed to have legal custody of his child at the time of legitimation in the absence of affirmative evidence indicating otherwise), In light of this finding, and the other findings made above, we rule that the beneficiary qualifies as a child pursuant to section 101(b)(1)(C) of the Act, and that she is therefore eligible for immediate relative classification under section 201(b)(2)(A)(i) of the Act. Accordingly, the appeal will be sustained, the RSC director's decision will be reversed, and the petitioner's visa petition will be approved. ORDER: The appeal is sustained. The decision of the RSC director is reversed and the visa petition is approved. Vice Chairman Mary Maguire Dunne did not participate in the decision in this case. In re J-P-, Respondent Decided May 20, 1998 U.S. Department of Justice An alien failed to establish that a serious headache he suffered on the day of his deportation hearing amounted to exceptional circumstances to excuse his failure to appear within the meaning of section 242B(f)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1252b(f)(2)(1994), where he gave no explanation for neglecting to contact the Immigration Court on the day of the hearing and did not support his claim with medical records or other evidence, such as affidavits by persons with knowledge regarding the extent and seriousness of the alien's headache and the remedies he used to treat it. Pro se Edward S. Reisman, Assistant District Counsel, for the Immigration and Naturalization Service Before: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, MATHON, GUENDELSBERGER, and JONES, Board Members. Dissenting Opinion: ROSENBERG, Board Member. HURWITZ, Board Member: In a decision dated January 6, 1997, the Immigration Judge denied the respondent's motion to reopen his deportation proceedings conducted in absentia on July 29, 1996, pursuant to section 242B of the Immigration and Nationality Act, 8 U.S.C. § 1252b (1994). The respondent appeals from the Immigration Judge's decision. The appeal will be dismissed. The issue before us is whether the respondent has established that exceptional circumstances, namely a strong headache, caused his failure to appear at his deportation hearing. In support of his motion to reopen, the respondent submitted a signed declaration stating that on July 28, 1996, 1 day before his missed hearing, he developed strong pain in his head. According to his statement, the pain caused him to be bedridden for 2 days. Thus, he was unable to attend his hearing. In his January 6, 1997, decision, the Immigration Judge found that the respondent failed to establish that exceptional circumstances caused his failure to appear because he did not submit a doctor's note, or a hospital or medical record in support of his motion. In response to the Immigration Judge's finding, the respondent argues on appeal that he did not submit such documentation because he was unable to afford professional medical treatment. He indicates that he treated his headache with home remedies. An order issued following proceedings conducted in absentia pursuant to section 242B(c) of the Act may be rescinded only upon a motion to reopen which demonstrates that the alien failed to appear because of exceptional circumstances, because he did not receive proper notice of the hearing, or because he was in Federal or State custody and failed to appear through no fault of his own. Section 242B (c)(3) of the Act; see also Sharma v. INS, 89 F.3d 545 (9th Cir. 1996); Matter of Gonzalez-Lopez, 20 I&N Dec. 644 (BIA 1993). The term "exceptional circumstances" refers to exceptional circumstances beyond the control of the alien, such as serious illness of the alien or death of an immediate relative, but not including less compelling circumstances. Section 242B(f)(2) of the Act. We find that the respondent has failed to establish that exceptional circumstances caused his failure to appear at his deportation hearing. Id. Generally, a common headache would not rise to the level of a serious illness and thus would not constitute exceptional circumstances within the meaning of the Act. Assuming that a serious headache can amount to exceptional circumstances, the respondent has failed to bring forth sufficient evidence to demonstrate that his headache falls into this category. The signed statement the respondent submitted in support of his motion to reopen only contains the following description regarding his headache: "On July 28, 1996, I developed a strong pain in my head and cranium, that caused [me] to remain in bed for the next two days." This perfunctory statement contains no detail regarding the cause, severity, or treatment of the alleged illness. Such a conclusory statement is insufficient to meet the high standard established by Congress for a showing of exceptional circumstances. See section 242B(f)(2) of the Act. The respondent also failed to establish his burden of proving exceptional circumstances because his motion to reopen was unsupported by medical or other records. As discussed above, the Immigration Judge found that the respondent's failure to submit medical records in support of his motion was, in itself, dispositive of his claim. We are not prepared to reach this conclusion based on the evidence of record, including the respondent's assertion on appeal that he treated his headache with home remedies because he could not afford medical treatment. However, we do find the lack of medical evidence or other evidence establishing, in detail, the seriousness of the respondent's illness to be one of several factors leading to our finding that the respondent failed to meet his burden. We find that if the respondent, indeed, treated his headache with home remedies, he could have supported his motion with an affidavit or another form of evidence from a medical professional describing the specific home remedies he used and their effectiveness in treating headaches. A medical professional might also have commented, in detail, on the severity of the illness alleged. In the alternative, his claim may have been substantiated, through detailed affidavits from the respondent, roommates, friends, and co-workers, attesting to the extent of his disability and the remedies used. None of these possible forms of evidence are in this record. We find that the respondent's bare statement that he could not afford medical care does not excuse his failure to provide medical evidence to support his claim of exceptional circumstances. In particular, there is no evidence in the record that free or low cost emergency medical care was unavailable to the respondent in his area of residence at the time of his scheduled hearing. Moreover, the record does not contain any evidence that the respondent was employed at the time of his scheduled hearing. While we cannot consider work absence in the context of the current case, we find that any evidence of absence from work due to an illness would normally bolster a respondent's claim that the illness is serious and that it constitutes exceptional circumstances. We also find that the respondent's failure to contact the Immigration Court on the day of his hearing further undercuts his claim. See De Morales v. INS, 116 F.3d 145 (5th Cir. 1997). In De Morales the petitioners alleged that they missed their deportation hearing due to automobile failure. They stated that on the day of their missed hearing they tried to locate the telephone number of the San Antonio Immigration Court but were unable to find it, either in the San Antonio telephone directory or in their Notice of Hearing. Thus, they failed to contact the Immigration Court on the day of their deportation hearing to inform the Immigration Judge of their inability to attend their hearing and to explain the reason for their absence. The United States Court of Appeals for the Fifth Circuit found that the petitioners failed to "make adequate efforts to avoid entrance of the in absentia order" through their "cursory search for the phone number." Id. at 149.' The respondent did not indicate that he made any effort to contact the Immigration Court on the day of his deportation hearing to alert the Immigration Judge of his absence and to explain the reasons for it. Giving such notice of one's unavailability is a minimal and logical step that, if not taken, is a factor which tends to undermine a claim of exceptional circumstances We do not discount the fact that the respondent had 180 days from the 'Although the case at bar does not fall within the jurisdiction of the Fifth Circuit, we find the analysis in De Morales v. INS, supra, to be particularly instructive to our discussion of the respondent's failure to contact the Immigration Court. |