Matter of Brantigan, 11 I. & N. Dec. 493 (BIA 1966). Under 8 CFR 204.2(c)(2), the petitioner must submit proof of the legal termination of all previous marriages of both the husband and spouse.

As evidence of the termination of the beneficiary's marriage, the petitioner has submitted affidavits from the parents of the beneficiary, the parents of his first wife, and a letter from the Consulate General of Ghana in New York. The affidavits state that the beneficiary and his first wife were divorced in June 1972 and that they are no longer husband and wife. Both affidavits are dated June 6, 1972. The letter from the Ghanaian consulate states that the dissolution of the marriage is authenticated by the affidavits of the parents.

The district director revoked approval on the ground that the divorce did not conform to the customary law of Ghana. Specifically, the district director found the purported divorce was defective because the parties had failed to confront the families, and that it had not been shown that a "severance drink" had been presented or that the family of the wife had returned the marriage gift to the family of the husband.

Counsel for the petitioner maintains that a divorce under the customary laws of Ghana is executed solely by the parents of the divorcing couples and that the other requirements alluded to by the district director are not needed to effect a divorce. Neither the petitioner nor the district director cites any legal authority for their respective positions.

We have consulted the Library of Congress which has furnished us with a memorandum, dated June 2, 1975, concerning customary divorce in Ghana, as well as copies of relevant Ghana statutes. According to the memorandum, the District Courts of Ghana have been given jurisdiction over divorces governed by customary law. Under the Courts Act, section 50(2), the court is empowered to make broad inquiry to determine the customary rule of law to be employed, since customary law will vary from place to place and tribe to tribe. Once the court is satisfied that the relevant customary law has been followed, the divorce may be granted.

The Library of Congress memorandum indicates that it is possible to effect a customary Ghanaian divorce without recourse to the courts. However, proof of such a divorce absent confirmation by a Ghanaian court, requires that the parties establish the ethnic group or tribe to which they belong, the customary divorce law of such tribe or group, and evidence that the pertinent customary laws were conformed to. Apparently, according to the memorandum, non-judicial customary divorces require the execution of certain ceremonial formalities to be effective.

The petitioner, who bears the burden of proof, has met none of the foregoing requirements. Neither a judicial decree of divorce, nor a

confirmation of a non-judicial divorce has been submitted. The petitioner has not substantiated the claim that there was a non-judicial customary divorce by submitting evidence of the customary law of divorce of the tribe to which the beneficiary or his first spouse belonged. While we do not hold that a Ghanaian tribal or customary divorce may be established only by a Ghanaian Court decree, we do note that the courts of Ghana are the body best equipped to determine the validity of a customary divorce. Absent such a Court decree, or confirmation by a Ghana Court, the petitioner must submit proof of the customary law of the pertinent Ghana tribe or group and proof that such law was conformed to. See Matter of Annang, 14 I. & N. Dec. 502 (BIA 1973).

The result reached by the district director was correct. The appeal will be dismissed.

ORDER: The appeal is dismissed.

MATTER OF STULTZ

In Visa Petition Proceedings

A-20099775

Decided by Board November 20, 1974 and March 18, 1975
Decided by Attorney General June 30, 1975

The petitioner, a naturalized United States citizen is married to the beneficiary's father; the beneficiary was born over 3 years after this marriage as the result of an illicit relationship between the married natural father and a woman to whom he was never married. The petitioner alleges that her husband, the beneficiary's father, has supported the child since it was abandoned by its mother; that the petitioner took care of the child about 2 years in Jamaica; and that the petitioner and her husband adopted the child in Jamaica, when the child was 14 years and nine months old. The district director denied the visa petition filed under section 201(b) of the Immigration and Nationality Act. The Board sustained petitioner's appeal finding a stepchild relationship arose even though the illegitimate child was born after the present marriage, based on the evidence that there is an existing bona fide family unit. It held that adulterine children, irrespective of the time of their birth, should be treated like other illegitimate children under section 101(b)(1)(B) of the Act. On an application to reconsider by the Service, the prior decision was affirmed. The Attorney General, on review, affirms the grant of the petition; regardless of whether the illegitimate child was born before or after the present marriage, the granting of the petition is consistent with the legislative history and policy of section 101(b)(1)(B) of the Act, where, as in this case, the spouse of the natural parent desires to raise that child and to maintain the family unit as evidence by support, adoption, etc. [Matter of Young, 12 I. & N. Dec. 340, 544 (BIA 1967) and Matter of Green, 11 I. & N. Dec. 546 (BIA 1965) were overruled by the Board insofar as they are inconsistent with this opinion.]

ON BEHALF OF PETITIONER:

David Scheinfeld, Esquire

41 East 42nd Street

New York, New York 10017

ON BEHALF OF SERVICE:
Irving A. Appleman
Chief Trial Attorney

Sam Bernsen
General Counsel

BEFORE THE BOARD
(November 20, 1974)

The United States citizen petitioner applied for immediate relative status for the beneficiary as her child under section 201(b) of the Immigration and Nationality Act. In a decision dated March 1, 1974 the

district director denied the petition. The petitioner has appealed from that decision. The appeal will be sustained.

The petitioner was married on January 1, 1955 in Jamaica. On June 19, 1958 the beneficiary was born in Jamaica to the petitioner's husband and a woman other than the petitioner. An affidavit signed by the petitioner and her husband, the beneficiary's father, contains the following additional averments: The beneficiary lived with her natural mother until August 1960, a little over two years after her birth, when her natural mother abandoned her. Her father has supported her since that time. The beneficiary's father came to the United States in December 1960. Until the petitioner herself came to the United States in 1962, she took care of the beneficiary in Jamaica. The petitioner and her husband have made frequent trips to Jamaica and have visited the beneficiary each time. The petitioner became a United States citizen in 1968. She and her husband, also a naturalized United States citizen, have sent approximately $100 per month to the couple with whom the beneficiary has been staying, for her clothing, tuition, and maintenance.

The record contains a copy of an adoption order from the Supreme Resident Magistrate's Court of Halfway-Tree, St. Andrew, Jamaica, showing that the petitioner and her husband legally adopted the beneficiary on March 28, 1973, when the beneficiary was 14 years and nine months old.

The petitioner believes that the beneficiary qualifies as her stepchild, and hence as her child, under section 101(b)(1) of the Act. This is the question that must be resolved. In his denial of the petition the district director stated that because the beneficiary was illegitimate, she could not qualify as the petitioner's child.

In section 101(b)(1)(B) of the Act a "child" is defined as an unmarried person under the age of 21 who is:

(B) a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred. . . .

Several significant cases have helped to clarify the definition of a "stepchild." In Nation v. Esperdy, 239 F. Supp. 531 (S.D.N.Y. 1965), the court noted that despite common dictionary definitions of a stepchild as a child by a former marriage, the language of section 101(b)(1)(B) contemplates that an illegitimate child may also be considered a stepchild for immigration purposes. Id. at 533. In the Nation case, the beneficiary had been abandoned in infancy by his natural mother. The petitioner began caring for the beneficiary when he was two years old,

1 Although the beneficiary was legally adopted, the petitioner is not seeking her admission as an adopted child because the beneficiary was not under the age of 14 when she was adopted, and is therefore not a "child" for immigration purposes under section 101(b)(1)(E), the subsection governing adopted children.

and she married his natural father three years later, in 1952. They all lived together until the petitioner immigrated to the United States in 1957. Her husband followed in 1958. The petitioner and her husband adopted the beneficiary when he was 16. As soon as the petitioner obtained United States citizenship, she sought to reunite the family by petitioning for non-quota status for the beneficiary. The court held that the child was the petitioner's stepchild within the meaning of section 101(b)(1)(B) and was eligible for nonquota status.

We followed Nation in Matter of The, 11 I. & N. Dec. 449 (BIA 1965). In that case the petitioner was the stepchild, who had been born out of wedlock, and the beneficiary was her stepmother. We found that there was ample evidence of a bona fide family unit including the petitioner, the beneficiary, and the natural father, which continued until after the petitioner reached the age of 21 and was married. She immigrated to the United States in 1953, and ten years later filed a petition on behalf of her stepmother. Unable to distinguish The from the Nation case, we approved the visa petition.

The one factor which distinguishes the present case from Nation and The is that the marriage of the petitioner and the beneficiary's father took place before rather than after the birth of the beneficiary. In Matter of Green, 11 I. & N. Dec. 546 (BIA 1965), and Matter of Young, 12 I. & N. Dec. 340 (BIA 1967), cases involving children born of adulterous relationships, we followed Nation and dismissed the appeals on two grounds: (1) the marriage creating the asserted steprelationship had not taken place subsequent to the birth of the beneficiary, and (2) there was no preexisting family unit.

The petitioner in Young made a motion for reconsideration by this Board on the basis of an intervening decision, Andrade v. Esperdy. 2 In that case the court held that the petitioner's husband's illegitimate daughter was classifiable as a stepchild under the immigration law, despite the fact that there was no preexisting family unit including the petitioner, the beneficiary, and the beneficiary's father. 3 In denying the motion we stated that adulterine children are the issue of adulterous intercourse and are regarded more unfavorably than the illegitimate offspring of single persons. We went on to say that ". . . it is difficult to understand the argument that the beneficiary in this case can be regarded as a stepchild. The beneficiary is simply an illegitimate adulterine child. The child was born during a then existing marriage as the result of illicit intercourse between the married natural father and a

2270 F. Supp. 516 (S.D.N. Y. 1967).

3 In Matter of Soares, 12 I. & N. Dec. 653 (D.D. 1967; BIA 1968), we refused to apply the holding of Andrade beyond the Second Circuit, and in Matter of Amado and Monteiro, 13 I. & N. Dec. 179 (BIA 1969), we further limited the application of Andrade to the Southern District of New York, where that case arose.