Imagini ale paginilor
PDF
ePub

visiting the beneficiary and his concubine from the latter part of 1960 to the early part of 1961.

The petitioner's wife, Chew Lim Wong, executed an affidavit on June 5, 1962, in which she states that she is the petitioner's wife; that she and her husband, the petitioner, have consistently, from the time of birth of the beneficiary, acknowledged the beneficiary as the true and lawful daughter of the petitioner; that the said beneficiary has been received into their family; that the said beneficiary is presently residing in Hong Kong; that the husband resided with the beneficiary in Hong Kong recently for a period of approximately six months; and that the beneficiary is and has been treated by the affiant and her husband as the legitimated child of the affiant's husband. The mother of the beneficiary executed a statutory declaration on January 6, 1961, that the beneficiary is the natural daughter of the petitioner and that lie is now responsible for her custody, maintenance and support.

The petitioner, through counsel, seeks nonquota status on behalf of the beneficiary as his legitimated child either under Article 1065 of the Civil Code of the Republic of China of 1931 or under section 230 of the Civil Code of the State of California. Article 1065 of the Chinese Civil Code provides that a child born out of wedlock who has been acknowledged by the natural father is deemed to be legitimate; where he has been maintained by the natural father, acknowledgement is deemed to have been established. Article 1067 of the Chinese Civil Code provides that a mother or other statutory agent of a child born out of wedlock may claim acknowledgement from his natural father in certain cases, including where there is the fact that the natural father and mother cohabited during the period of conception and where paternity can be proven from documents by the natural father but states that the right of claim provided in this paragraph is extinguished if not exercised within five years from the time of the birth of the child. The child in the present case was born April 26, 1946, but the earliest declaration of acknowledgement by the putative father is dated January 6, 1961. There is no evidence of support or maintenance of the child prior thereto. The burden is upon the petitioner to establish the claimed relationship and upon the record he has failed to do so.

Legitimation is also claimed under section 230 of the California Civil Code which provides for the legitimation of an illegitimate child by a statute entitled “Adoption of an Illegitimate Child,” which has been construed as a statute of legitimation. This section provides that the father of an illegitimate child, by publicly acknowledging it as his son, receiving it as such with the consent of his wife, if he is married, into his family adopts as such; such child is thereupon deemed for all purposes legitimate from the time of its birth. The California courts

289

have held that there are four essential elements needed to accomplish legitimation under section 230: (1) that the man shall be the child's natural father; (2) that the man shall have publicly acknowledged himself to be the child's father; (3) that the man shall have received the child into his family; and (4) that the man shall have otherwise treated the child as his legitimate child.

It has been held that acknowledgment without bringing the child into the family is not sufficient for legitimation. The evidence in the instant case establishes that the domicile of the father is and has been the State of California. The father's home is in that state and there is no evidence that the daughter has been received into the home in California. At most there is merely an offer to receive the beneficiary into the petitioner's family. This is not sufficient compliance with the statute. It is concluded that the evidence fails to establish that the beneficiary has been legitimated under section 230 of the California Civil Code. The appeal will be dismissed.

ORDER: It is ordered that the appeal be and the same is hereby dismissed.

? Estate of Gird, 157 Cal. 542; Estate of Jones, 166 Cal. 108; Baird's Estate, 182 Cal. 338; Estate of Flood, 217 Cal. 763; Wong v. Wonghingyong, 80 Cal. App. 2d 453.

Louie Wah You v. Nagle, 27 F. 2d 573 (9th Cir. 1928); Gormer v. Judd, 6 Cal. Unreported Cases 675, 64 P. 1076.

MATTER OF Rios-CARRILLO

In DEPORTATION Proceedings

A-13568545

Decided by Board June 12, 1963

An application under section 248, Immigration and Nationality Act, for change

of nonimmigrant status and the issues raised in the proceedings thereunder are not within the jurisdiction of either the special inquiry officer or the Board

of Immigration Appeals. CHARGE: Order: Act of 1952—Section 241(a) (9) [8 U.S.C. 1251 (a) (9)]-Failed to

comply with conditions of status of agricultural worker under which admitted to the United States.

A total of 14 cases involving the same issues have been appealed by counsel. This case will serve as a precedent for the disposition of the others. To simplify the discussion and for administrative convenience, this case which the special inquiry officer handled in an crder also disposing of two other cases (Rogelio Avila-Valdez A-13568544 and Jose Salud Guiterrez-Serrato — A-13569146) will be considered separately.

Respondent appeals from an order of the special inquiry officer finding him deportable upon the ground stated above. Voluntary departure was granted. We shall reopen proceedings.

Respondent, a 26-year-old single male alien, a native and citizen of Mexico, was admitted to the United States as an agricultural worker on May 3, 1962 for a period ending June 14, 1962. Recontracts extended the period to December 20, 1962 (Ex. 4). For the purposes of this opinion, as is explained later, we shall assume that by reason of an agreement between the Republic of Mexico and the United States (Ex. 7), the period was extended an additional 15 days to January 4, 1963. Respondent was given no further extension by the Service yet remains in the United States. The Service charges that the respondent is deportable because his failure to depart violated the conditions of his admission. Counsel contends that the respondent who had submitted an application for a change of his status, is legally in the United States because his application was improperly denied; counsel also raises a question as to the applicability of the charge in the order to show cause, and contends that the order to show cause was prematurely issued.

The questions raised by counsel require a full statement of facts even though some of the facts are irrelevant in this deportation proceeding. Respondent was admitted to the United States as an agricultural worker under the Agricultural Act of 1949 as amended (7 U.S.C. 1461-1468). On January 4, 1963, the respondent filed an application (Ex. 5) with the District Director at Los Angeles, California under section 248 of the Act (8 U.S.C. 1258) 2 for a change of his status from an agricultural worker to a temporary agricultural worker described in section 101(a) (15) (H) (ii), 8 U.S.C. 1101(a) (15) (H) (ii). As required by regulation, the application for a change of status was accompanied by a petition made by an agricultural cooperative for the respondent's services as a temporary agricultural worker (Ex. 6). On January 17, 1963 the District Director returned the petition to the agricultural cooperative with a request that a clearance from the State of California be submitted showing that unemployed persons capable of performing the labor could not be found in the United States (Ex. 6). Nothing further appears to have been done with this petition. On January 18, 1963, the District Director denied the application for a change of status on the ground that respondent was not a nonimmigrant and therefore could not change from one nonimmigrant class to another nonimmigrant class. The reason given for finding respondent was not a nonimmigrant was that the nonimmigrant class is created by section 101(a) (15) of the Act, but respondent had not been admitted under this section: he had been admitted under the Agricultural Act of 1949, as amended. The decision also notified the respondent that he had 15 days within which to appeal to the Regional Commissioner. On the same day the decision was handed down, the District Director issued an order to show cause formally commencing deportation proceedings against the respondent, and notifying him to appear for his deportation hearing on January 29. The order to show cause was served by mail. On January 25, 1963, the respondent filed an appeal with the Regional Commissioner from the District Director's denial of his application for a change of status. (The deportation hearing was not held on January 29th as scheduled.) On January 30, 1963, the Regional Commissioner dismissed the appeal on the ground used by the District Director and on the additional ground that respondent had not been the beneficiary of an approved petition (Ex. 5). On February 4, 1963 the respondent was notified that the hearing in the deportation case had been rescheduled to February 12, 1963.

* Pertinent portions of the Agricultural Act of 1949, as amended, follow :

Workers recruited under this title who are not citizens of the United States shall be admitted to the United States subject to the immigration laws (or if already in, for not less than the preceding five years or by virtue of legal entry, and otherwise eligible for admission to, the United States may, pursuant to arrangements between the United States and the Republic of Mexico, be permitted to remain therein) for such time and under such conditions as may be specified by the Attorney General but, notwithstanding any other provision of law or regulation, no penalty bond shall be required which imposes liability upon any person for the failure of any such worker to depart from the United States upon termination of employment: * * * (section 505, 7 U.S.C. 1464, as amended, 7 U.S.C. 1464, 1465 (Supp. III)).

Workers recruited under the provisions of this title shall not be subject to the head tax levied under section 2 of the Immigration Act of 1917 (section 506(c), 7 U.S.C. 1465, as amended, 7 U.S.C. 1464, 1465 (Supp. III)).

Nothing in this Act shall be construed as limiting the authority of the Attorney General, pursuant to the general immigration laws, to permit the importation of aliens of any nationality for agricultural employment as defined in section 507 [Agricultural Act of 1949), or to permit any such alien who entered the United States legally to remain for the purpose of engaging in such agricultural employment under such conditions and for such time as he, the Attorney General, shall specify (section 509, 7 U.S.C. 1468, as amended, 7 U.S.C. 1468 (Supp. III)).

* The Attorney General may, under such conditions as he may prescribe, authorize a change from any nonimmigrant classification to any other nonimmigrant classification in the case of any alien lawfully admitted to the United States as a nonimmigrant who is continuing to maintain that status, except an alien classified as a nonimmigrant under paragraph (15(D) of section 101(a) [alien crewmen), or an alien classified as a nonimmigrant under paragraph (15) (C) or (J) of section 101(a) [alien in transit or alien coming as participant in a State Department program] unless he applies to have his classification changed from classification under paragraph (15) (C) or (J) to a classification under paragraph (15) (A) or (15) (G) of section 101 (a) [diplomat or representative of a foreign government] (section 248 of the Act).

On the rescheduled date, the deportation hearing was held. The Service established that the respondent had been admitted as an agricultural worker authorized to remain until December 20, 1962 and that he had not departed after the terminal date. Respondent testified that on December 20, 1962, the terminal date, he had been employed by the Tamaka Growers, that an official of the camp requested

* In pertinent part the section relates to an alien "who is coming temporarily to the United States to perform other temporary services or labor, if unemployed persons capable of performing such service or labor cannot be found in this country;"

* In pertinent part the regulation requires that an application for a change of nonimmigrant classification “shall be accompanied by an application on Form 1-129B made by the alien's prospective employer or trainer." (8 CFR 248.3)

« ÎnapoiContinuați »