MATTER OF THORPE In Deportation Proceedings A-21164837 Decided by Board May 24, 1977 (1) Respondent's employer submitted an application for alien labor certification to the Pennsylvania State Employment Service. It appears the Labor Department advised the Service of respondent's apparent unlawful immigration status and deportation proceedings were instituted under section 241(a)(2) of the Immigration and Nationality Act. At hearing, respondent moved to suppress evidence from the labor certification application asserting rights under the Privacy Act, 5 U.S.C. 552a, and her employer moved to intervene in order to assert Privacy Act claims also. Both motions were properly denied. (2) A deportation hearing is not the proper forum in which to assert privacy act claims. The Board has no jurisdiction over claims under the Privacy Act. See C.F.R. 3.1. (3) Respondent has no standing to assert privacy act claims because she is not a citizen or lawful resident alien. See 5 U.S.C. 552a(a)(2). (4) Whatever the Privacy Act rights of the employer may be, they have no bearing on respondent's deportability. CHARGE: Order Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2)]-Nonimmigrant visitorremained longer. ON BEHALF OF RESPONDENT: Richard D. Steel, Esquire 636 Public Ledger Building BY: Milhollan, Chairman; Wilson, Maniatis, and Appleman, Board Members In a decision dated July 22, 1976, the immigration judge found the respondent deportable under section 241(a)(2) of the Immigration and Nationality Act and granted her the privilege of voluntary departure. The respondent has appealed from that decision. The record will be remanded to the immigration judge for further proceedings. According to the Order to Show Cause, the respondent is a native and citizen of Barbados who entered the United States at New York City on July 7, 1975, as a nonimmigrant visitor for pleasure. She was allegedly authorized to remain in this country until July 31, 1975, but remained beyond the period authorized. At her deportation hearing, the respondent, on the advice of counsel, refused to answer any questions. The record indicates that in January 1976, the respondent's employer submitted to the Pennsylvania State Employment Service an application on behalf of the respondent for an alien labor service certification. Although it is not entirely clear from the record, it would appear that as a result of this application, the State Employment Service contacted the United States Department of Labor which in turn notified the Immigration and Naturalization Service of the respondent's apparently illegal immigration status. According to the immigration judge's decision, the respondent was then contacted by the Service whereupon she surrendered her Form I-94, Arrival-Departure Record. Counsel for the respondent, on the other hand, alleges that the respondent submitted her Form I-94 only under protest. At her deportation hearing, the respondent claimed that the information contained in the application for certification was protected by the provisions of the Privacy Act, 5 U.S.C. §552a, and that the United States citizen employer's rights had been violated. Her motion to suppress the evidence based on these alleged violations was denied, as was the motion made by the respondent's employer to intervene in the proceedings in order to assert Privacy Act claims. 1 As pointed out by the immigration judge, the provisions of the Privacy Act of 1974 do not protect aliens who are illegally in the United States. To circumvent this restriction, the respondent apparently attempted to get her employer to intervene to assert the Privacy Act claims. The immigration judge quite properly denied this motion. Whatever may be the rights of the United States citizen employer under the Privacy Act, a deportation proceeding is not the proper forum for asserting these rights.2 The rights claimed are those of the employer and not of the respondent and, inasmuch as the Privacy Act is limited to the United States citizens and lawful permanent resident aliens, 5 U.S.C. §552a(a)(2), the respondent is clearly without standing to assert these claims. See generally C. A. Wright, Law of Federal Courts §13 (1970). The rights of the employer have no bearing on the respondent's deportability. The respondent's motion to suppress was properly denied by the immigration judge. The respondent is a native of the Western Hemisphere and may have acquired rights by reason of the Immigration and Nationality Act Amendments of 1976, Public Law 94-571, 90 Stat. 2703, and the court's decision in Silva v. Levi, No. 76-C4268 (N.D. Ill. March 22, 1977). We In defining what individuals are to be protected by the Act, 5 U.S.C. §552a(a)(2) defines the term "individual" as "a citizen of the United States or an alien lawfully admitted for permanent residence." 2 Clearly, the Board is without jurisdiction to determine the Privacy Act claims of United States citizens. 8 C. F. R. 3.1. have determined that a remand of the record to the immigration judge for further proceedings in light of these developments is appropriate. Should the respondent be found to be ineligible for relief, or should a decision on an application for relief be adverse, an appropriate order shall be entered and the record shall be certified to this Board for review. ORDER: The case is remanded to the immigration judge for further proceedings consistent with the foregoing opinion. MATTER OF RAMIREZ In Visa Petition Proceedings A-22139915 Decided by Board May 25, 1977 (1) Under Article 279 of the Civil Code of El Salvador, a child born out of wedlock may be acknowledged by the parents by the act of registration of the child's birth in the office of the Civil Registry. (2) Under Article 217, if the child has been acknowledged, the subsequent marriage of the parents legitimates him by operation of law. However under Article 225(2), the legitimation is not retroactive from the date of the parents' marriage. (3) Petitioner son was recognized by beneficiary father on February 8, 1938, one day after his birth. However his parents did not marry until April 13, 1959, when he was 21 years of age. Since the beneficiary did not marry the petitioner's mother until after petitioner's eighteenth birthday the petitioner never came within the definition of “child” in section 101(b)(1)(C) of the Immigration and Nationality Act, and therefore the beneficiary cannot receive immigration benefits as petitioner's "parent," and the petition to classify petitioner's father as an immediate relative under section 201(b) of the Act was properly denied. ON BEHALF OF PETITIONER: Michael M. Laufer, Esquire New York, New York 10028 BY: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members The United States citizen petitioner applied for immediate relative status for his father under section 201(b) of the Immigration and Nationality Act. In a decision dated February 2, 1977, the District Director denied the petition. The petitioner has appealed from that denial. The appeal will be dismissed. In order to claim benefits for a parent under the immigration laws, the United States citizen petitioner must establish that he would have qualified as a "child" under the Act. Section 101(b)(2) of the Act. Since the petitioner's parents were not married at the time of his birth and he does not claim to have been adopted by the beneficiary, the petitioner must establish that he was legitimated before his eighteenth birthday. See section 101(b)(1)(C) of the Act. The record contains a translation of the petitioner's birth certificate which shows that the beneficiary recognized the petitioner as his son on February 8, 1938, the day after the petitioner was born. On appeal, the petitioner has also submitted a copy of a translation of his "parents" marriage certificate which shows that they were married on April 13, 1959. The marriage certificate also contains a notation stating that at the time of their marriage the parties had seven children. The petitioner is listed as one of these children. We have received a memorandum from the Library of Congress, dated May 9, 1977, containing a discussion of the provisions of the Civil Code of El Salvador relating to the legitimation of children born out of wedlock. See Appendix A. Though two editions of the code, one published in 1926 and one published in 1959, were consulted, it appears that no significant changes in the governing procedures have been made between 1926 and the present time. Under Article 279 of the Civil Code of El Salvador (hereafter Civil Code), a child born out of wedlock may be acknowledged by his parents, and one of the ways such acknowledgments may be effected is by the act of registration of the child's birth in the office of the Civil Registry. If a child has been acknowledged by both his parents, then their subsequent marriage legitimates him by operation of law. See Article 217 of the Civil Code. Legitimation also takes place if the child is acknowledged by his parents at the wedding ceremony and the recognition is annotated on the record of the marriage. Although a child legitimated by his parents' subsequent marriage is considered as a legitimate child conceived in wedlock and has the same rights and benefits, the legitimation is not retroactive from the date of the parents' marriage. Article 225(2) of the Civil Code. Although the petitioner's parents took the steps necessary for his legitimation, because the beneficiary did not marry the petitioner's mother until after the petitioner's eighteenth birthday, the petitioner never came within the definition of child in section 101(b)(1)(C) of the Act, and therefore the beneficiary cannot receive immigration benefits as the petitioner's "parent." We therefore must find that the District Director's decision denying the petition was correct. ORDER: The appeal is dismissed. APPENDIX A LEGITIMATION OF CHILDREN The letter of inquiry requests information concerning the legitimation of children under the law of El Salvador. The facts of the case may be summarized as follows: A child was born out of wedlock in El Salvador in |