Matter of Moraga: BIA Holds That Salvadoran Constitution Legitimated Children Born Out of Wedlock...

IMMIGRATION LAW & POLICY

Obtaining Lawful Permanent Residence Status

MATTER OF MORAGA: BIA HOLDS THAT SALVADORAN CONSTITUTION LEGITIMATED CHILDREN BORN OUT OF WEDLOCK ON OR AFTER DEC. 16, 1965, FOR PURPOSES OF VISA ELIGIBILITY
Immigrants' Rights Update, Vol. 15, No. 7, Nov. 16, 2001

The Board of Immigration Appeals has issued a unanimous en banc precedent decision finding that all children born out of wedlock in El Salvador on or after Dec. 16, 1965, are considered "legitimated" because of a constitutional provision enacted in 1983. The decision was issued on review of a denial of a family first preference visa petition by the director of the Vermont Service Center (VSC).

The VSC director denied the petition under Matter of Ramirez, 16 I. & N. Dec. 222 (BIA 1977), which held that Salvadoran law allowed children born out of wedlock to be acknowledged by the parents' act of registering the child's birth or legitimated by the marriage of the parents before the child turns 18 years of age. In this case, the naturalized citizen petitioner sought to immigrate a daughter born out of wedlock who had not been legitimated by any of the actions recognized in Ramirez before her eighteenth birthday. However, while the VSC director denied the petition, he also certified his decision to the BIA for review, noting that El Salvador had eliminated the distinction between legitimate and illegitimate children in a constitutional provision enacted in 1983.

On review, the BIA concluded that all children born out of wedlock who were under 18 years of age at the time the 1983 constitutional provision was enacted must be considered to have been legitimated. Children born out of wedlock before Dec. 16, 1983, must continue to meet the legitimation requirements of Matter of Ramirez.

Matter of Moraga, 23 I. & N. Dec. 195, Int. Dec. #3459 (BIA Oct. 19, 2001).