The respondent has established visa availability and appears to be otherwise qualified for the requested relief. ORDER: The appeal is sustained and the respondent is granted adjustment of status subject to necessary processing by the Service. FURTHER ORDER: The outstanding order of deportation is with drawn. (Public Law 94-571, 90 Stat. 2703). Section 245 of the Act as amended now provides that the relief of adjustment of status is not available to: . . . an alien (other than an immediate relative as defined in section 201(b)) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status. Section 245(c)(2). MATTER OF REYES In Visa Petition Proceedings A-21247850 Decided by Board January 6, 1978 (1) "Common-law" marriages are not valid in San Luis Potosi, Mexico. (2) A child of a "common-law" marriage in San Luis Potosi, Mexico, is illegitimate. (3) Under Article 314 of the Constitution of Mexico of 1917, an illegitimate child may be legitimated only by the subsequent marriage of its parents, and a visa petition by a putative father on behalf of the child of a “common-law" relationship therefore was properly denied absent proof of legitimation. ON BEHALF OF PETITIONER: Ricardo J. Mendez, Esquire Ramey, Hailey & Mendez BY: Milhollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members This case presents an appeal from a decision of the District Director on January 24, 1977, denying the visa petition filed in behalf of the beneficiary as the son of the petitioner on the ground that the latter is not legally married to the beneficiary's mother and thus cannot confer immediate relative status upon the beneficiary. The appeal will be dismissed. The beneficiary, age 19, is a native and citizen of Mexico, who was born out of wedlock. His parents have never married but lived together common-law in San Luis Potosi, Mexico. The petitioner conceded that the mother of the beneficiary has now abandoned him and that her present whereabouts is unknown. A determination made by the Hispanic Law Division of the Library of Congress in February 1976, and now a part of this record, reflects that common-law marriages are not valid in San Luis Potosi and that all children born thereof are illegitimate. It further reflects that Article 314 of the Constitution of Mexico of 1917 provides that such children may be legitimated solely by the subsequent marriage of their parents. 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) of the Immigration and Nationality Act, as amended. 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.) Upon review of the record, we conclude that the beneficiary has not been legitimated since his parents never legally married. In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefits sought. See Matter of Gilpin, Interim Decision 2503 (BIA 1976); Matter of Pearson, 13 I. & N. Dec. 152 (BIA 1969); Matter of Brantigan, 11 I. & N. Dec. 493 (BIA 1966). We are satisfied that the petitioner has failed to sustain his burden. Accordingly, the appeal will be dismissed. ORDER: The appeal is dismissed. MATTER OF GARCIA-RODRIGUEZ In Visa Petition Proceedings A-22365073 Decided by Board January 13, 1978 (1) In order to support application for "immediate relative status" under section 201(b) of the Immigration and Nationality Act, 8 U.S.C. 1151(b), for the beneficiary as her adopted daughter, petitioner must establish that the adoption was accomplished in compliance with controlling foreign law (Civil Code of Tamaulipas, Mexico). (2) Under article 400 of the Civil Code of Tamaulipas, Mexico, only persons "who have no descendants" are permitted to adopt. (3) A purported adoption of the beneficiary by the petitioner and her spouse in Tamaulipas, Mexico, while they had living natural children, was not accomplished in compliance with controlling law and cannot be recognized for the purpose of bestowing an immigration benefit. (4) Contention that article 400 of the Civil Code of Tamaulipas, Mexico, applies only to single persons and that article 401 allows a man and wife to adopt, even if they have descendants, so long as both consent, is rejected because article 400 is not restricted on its face to single persons, the adoption order in question cites article 400 and not article 401 among its "legal bases", and because article 401 would appear to be an additional (rather than an alternative) requirement imposed upon married couples who wish to adopt. ON BEHALF OF PETITIONER: Pro se BY: Milhollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members The United States citizen petitioner applied for immediate relative status for the beneficiary as her adopted daughter under section 201(b) of the Immigration and Nationality Act, 8 U.S.C. 1151(b). In a decision dated October 5, 1976, the District Director denied the petition. The petitioner has appealed.1 The appeal will be dismissed. The beneficiary, a 15-year-old native and citizen of Mexico, was "adopted" by the petitioner and her husband in H. Matamoros, State of Tamaulipas, Mexico, on August 6, 1974. The couple had natural children of their own living at the time of this "adoption." A visa petition was submitted on behalf of the beneficiary on August 16, 1976. 1 The appeal was properly filed on October 18, 1976, but was not received by this Board until November 15, 1977. The Service explains that the delay resulted because a position in the relevant field office became vacant the month the appeal was filed and was not staffed until some ten months later. Certain adopted children of United States citizen parents can qualify for "immediate relative status" under section 201(b) of the Act. See section 101(b)(E), 8 U.S.C. 1101(b)(1)(E). The District Director, however, denied this petition based on his finding that the petitioner failed to establish that the beneficiary had been lawfully adopted. Noting that article 400 of the Civil Code of Tamaulipas authorizes only persons "who do not have natural descendants" to adopt minor children, he concluded that the beneficiary's adoption was not in compliance with controlling law as the petitioner and her spouse had other natural children living in August 1974. On appeal, the petitioner submits that the District Director erred by looking only to article 400 of the Civil Code of Tamaulipas. She states that article 400 governs only adoptions by single persons and that article 401 authorizes a "married couple [to] adopt if both agree to consider the adopted one as their son." The petitioner maintains that the adoption of the beneficiary was in compliance with the requirements of the Civil Code of Tamaulipas and that her daughter should, therefore, be recognized as her "immediate relative." The burden of establishing both controlling foreign law (Matter of Annang, 14 I. & N. Dec. 502 (BIA 1973)) and eligibility for the benefit sought (Matter of Brantigan, 11 I. & N. Dec. 493 (BIA 1966)) rests with the petitioner. We conclude that the petitioner has failed to sustain either burden. Article 400 of the Civil Code of Tamaulipas provides: Persons over 30 years of age, in the full exercise of their rights and who have no descendants, may adopt a minor or an incompetent, even if he is of legal age, provided the adopter is 17 years older than the person adopted, and that the adoption is beneficial to the latter. Article 401 of the Code states: The man and wife can adopt when both are in accord in considering the adopted child as their own son or daughter. It seems evident that the former article is a general provision governing all adoptions, while the latter article sets forth an additional requirement to be imposed upon married couples. Thus, it would appear that the petitioner and her spouse were subject to the restrictions in article 400 at the time they attempted to adopt the beneficiary. The petitioner would have us conclude that article 400 applies only to single persons. On its face, however, no such limitation appears. Moreover, to accept such an interpretation would be to conclude that the age differential and "welfare of the child" provisions of article 400 do not apply to adoptions by married couples. We decline to so conclude, and find that the petitioner has failed to establish that her reading of articles 400 and 401 of the Civil Code of Tamaulipas is correct. |