the beneficiary "shall be considered as the legitimate child of [the petitioner] from the time of her birth for all purposes." The legitimation was accomplished in accordance with Title 16, Virgin Islands Code, section 462, which provides: The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth. The revision note in the code explains that section 462 is based upon section 230 of the Civil Code of California, which uses virtually identical language.' See Matter of Peters, 11 I. & N. Dec. 691, 692 (BIA 1966). The record shows that the petitioner complied with the requirements of section 462 of the Virgin Islands Code. In order to qualify as the petitioner's unmarried daughter, the beneficiary must at one time have been the petitioner's "child" within the definition of section 101(b)(1) of the Act. Matter of Coker, 14 I. & N. Dec. 521 (BIA 1974). Under section 101(b)(1) of the Act, a person may qualify as a "child" within the context of the immigration laws only where the parent-child relationship exists by reason of any of the circumstances set forth in section 101(b)(1). The term "child," as defined in that section, does not include illegitimate children not claiming an immigration status by virtue of their relationship to their mother under section 101(b)(1)(D). The child must either be legitimate under section 101(b)(1)(A) or legitimated in accordance with the provisions of section 101(b)(1)(C) of the Act: 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. (Emphasis supplied.) The beneficiary's legitimation took place when she was 23 years old. It would thus seem clear that the legitimation occurred too late to confer any immigration benefits. However, the petitioner stresses the fact that the decree confers legitimacy from the time of the beneficiary's birth. This argument is fallacious. Generally, when a child is legitimated, the child is deemed legitimate from the time of its birth. That has nothing to do with the age of the child at the time when the act of legitimation takes place. In this case, the act of legitimation took place when the child was 23, not when it was born. The petitioner seeks to support his novel argument by citing our Section 230 of the California Civil Code was repealed in 1975 when California adopted the Uniform Parentage Act. Matter of Buenaventura, Interim Decision 2636 (BIA 1977). decision in Matter of Palacio, 11 I. & N. Dec. 183 (BIA 1965). That case arose under section 230 of the California Civil Code, which, as noted above, was the model for section 462 of the Virgin Islands Code. The beneficiary in Palacio was 21 years old when the decree of legitimation was issued. However, the acts constituting the legitimation had occurred much earlier, when the beneficiary was eight years old. The decree specifically stated that the date of legitimation was December 31, 1952, when the beneficiary was eight years old. In Palacio no reliance was placed upon the fact that the legitimated child was deemed legitimate for all purposes from the time of its birth. What was crucial was the fact that the child had become legitimated when it was eight years old. The legitimation decree, issued 13 years later, merely confirmed the child's legitimate status; it did not create that status. The petitioner's argument thus has no merit. MATTER OF VELASCO In Deportation Proceedings A-10705669 Decided by Board July 25, 1977 Conviction for misprision of a felony to wit, possession of marihuana with intent to distribute, is not a conviction of a law “relating to the illicit possession of or traffic in narcotic drugs or marihuana," and does not subject respondent to deportability under section 241(a)(11) of the Immigration and Nationality Act. CHARGE: Order: Act of 1952-Section 241(a)(11) [8 U.S.C. 1251(a)(11)]-Convicted of a violation of law relating to illicit possession of marihuana ON BEHALF OF RESPONDENT: Joseph Abraham, Esquire 505 Caples Building El Paso, Texas 79901 BY: Wilson, Acting Chairman; Maniatis, Appleman, and Maguire, Board Members In a decision dated February 3, 1976, the immigration judge found the respondent deportable under section 241(a)(11) of the Immigration and Nationality Act and ordered his deportation. The respondent has appealed from that decision. The appeal will be sustained and the proceedings will be terminated. The respondent, a native and citizen of Mexico, was admitted to the United States for permanent residence on September 14, 1956. On March 14, 1975, the respondent pled guilty in the United States District Court for the Western District of Texas to misprision of a felony, to wit, possession of marihuana with intent to distribute, in violation of 18 U.S.C. §4 which provides as follows: 4. Misprision of felony.-Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined not more than $500 or imprisoned not more than three years, or both, These deportation proceedings were subsequently instituted against the respondent under section 241(a)(11) of the Act which provides in pertinent part: (a) Any alien in the United States. . . shall, upon the order of the Attorney General, be deported who—. . . (11) . . . at any time has been convicted of a violation of, or a conspiracy to violate, any law or regulation relating to the illicit possession of or traffic in narcotic drugs or marihuana.... At the hearing before the immigration judge on December 17, 1975, the respondent made a claim to United States citizenship on the basis of evidence that his adoptive father is a United States citizen. The immigration judge rejected the claim on the ground that, having admitted birth in Mexico, the respondent is presumed to be an alien. He further concluded that the respondent had failed to sustain his burden of going forward with the evidence to show otherwise. We agree with the immigration judge's holding. Matter of Leyva, Interim Decision 2559 (BIA January 18, 1977); Matter of Vergara, Interim Decision 2408 (BIA 1975); Matter of Ponco, Interim Decision 2326 (BIA 1974); Matter of Tijerina-Villarreal, 13 I. & N. Dec. 327 (BIA 1969). The respondent also argues that a conviction for misprision of a felony, to wit, possession of marihuana with intent to distribute, is not a conviction of a violation of a law "relating to . . . marihuana." Accordingly, he denies that his conviction subjects him to deportation under section 241(a)(11) of the Act. The immigration judge, however, concluded that the phrase "relating to...marihuana" was broad enough to encompass convictions for misprision of a felony provided the felony concealed is a crime "relating to . . .marihuana.” In so holding he relied on the Attorney General's decision in Matter of N-, 6 I. & N. Dec. 557 (A.G. 1955). The alien in Matter of N had been convicted of a conspiracy to sell, dispense and distribute heroin. Section 241(a)(11) of the 1952 Act had not yet been amended to specifically include convictions for conspiracy.' The Attorney General, however, held that the phrase "relating to" was broad enough to encompass convictions for conspiracy to violate the narcotic laws. The question presented in the instant case was recently answered by the United States Court of Appeals for the Sixth Circuit in Castaneda de Esper v. INS, No. 76-1237 (6 Cir. June 15, 1977). Reversing a decision of this Board (Matter of Esper, A30 241 082, December 22, 1975) the court held that a conviction for misprision of a felony is not a conviction for a violation of a law "relating to . . . marihuana" even though the felony concealed is a crime for which a conviction would clearly fall within the provisions of section 241(a)(11) of the Act. In its opinion the court stated that the crime of misprision of a felony is a criminal offense separate and distinct from the particular felony con'The phrase "or a conspiracy to violate" was added by the Narcotic Control Act of 1956, Pub. L. No. 84-728, 70 Stat. 567. cealed. It declined to adopt an interpretation of section 241(a)(11) which would incorporate the conviction for misprision of a felony into the underlying offense concealed by the alien. We shall follow the court's decision in Esper, specifically that a conviction for misprision of a felony, to wit, possession of marihuana with intent to distribute, is not a conviction of a law "relating to ... marihuana." Consequently, the appeal will be sustained and the proceedings against the respondent will be terminated. ORDER: The appeal is sustained; the deportation proceedings are terminated. |