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"Legitimation" under INA.

Discussion in 'US citizenship' started by Paul Thompson, Dec 19, 2005.

  1. Paul Thompson

    Paul Thompson Junior Member

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    In BIA decision 3020 ( matter of Garcia ) the following is quoted:-

    Under the New Jersey Parentage Act, effective May 21, 1983, all children and parents have equal rights with respect to each other regardless of the marital status of the parents. N.J. Stat. Ann. §§ 9:17-38 to -59 (West 1983). Matter of Clarke, 18 I&N Dec. 369 (BIA 1983), modified.

    The New Jersey law referred to is :-

    9:17- 40 “The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.”

    The above law is based on the model law, the “Uniform Parentage Act” as adopted by various States, including:-

    Washington, RCW 26.26.020 The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.” (1976)

    In Washington State, the intent of the law was explained by quoting Sheila Malloy‘s, “Washington’s Parentage Act : A step forward in Children‘s rights:-

    MILLER v. SYBOUTS 97 Wn.2d 445, 645 P.2d 1082

    The Uniform Parentage Act was enacted in 1976 with the primary goal of equalizing the rights of all children, regardless of the marital status of the parents.

    As per the foreign affairs manual of the United States :-

    7 FAM 1133.4-2 Birth Out of Wedlock to American Father.

    Some states and countries grant all children equal rights, regardless of the parent's marital status. In such cases, the child may be considered to have established paternity by legitimation under old 309(a) if the blood relationship between the father and child was established before the child's 21st birthday, and the law concerning the equality of all children was in effect before the child's 21st birthday.

    From BIA INTERIM DECISION 3328:-

    1/ This definition was derived from the commonly accepted definition of legitimation (the act of putting an illegitimate child in the position or state of a legitimate child before the law by legal means) and from prior court cases such as Pfeifer v. Wright, 41 F.2d 464 (10th Cir. 1930). Matter of Reyes, supra. In Pfeifer v. Wright, the court stated that a legitimated child is one placed "in all respects upon the same footing as if begotten and born in wedlock," and his or her "civil and social status becomes that of a lawful child of the natural father, and the child and father thereafter stand[ing] in their relations to each other as though the birth had been during wedlock." Pfeifer v. Wright, supra, at 466 (emphasis added).

    So considering BIA decision 3020, interim decision 3328, New Jersey law 9 :17-40 and 7 FAM 1133.4.

    Is “legitimation” provided by Washington RCW 26.26.020?
     
  2. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Legitimation, for immigration purposes, refers to an act of acknowledgement by the father before the child turns 21.
     
  3. Paul Thompson

    Paul Thompson Junior Member

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    Legitimation

    Thank you Ron.



    Perhaps I did not word my question very well; I will attempt to ask again in a different way.

    I am the son of an American citizen; I was born out of wedlock in London 1958.

    I was “acknowledged” both in terms of recognition by a UK court that my father is just that, and in terms of my father affirming to friends and family that I am his son.

    Now to be considered a citizen, I must be “legitimised” as per INA 309.

    I realise that also I must meet the criteria of a child under INA 101, but I think I can do this.

    My father has Washington State, by way of residence/ domicile.

    I mentioned BIA decision Garcia, using New Jersey law as it used the same “law” as Washington state.

     
  4. Ron Gotcher

    Ron Gotcher Attorney at Law

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    If your father recognized you for purposes of UK law, then you are "legitimated" already and you don't have to deal with the law of his current domicile. Go to the passport office and apply for a US passport.
     
  5. Paul Thompson

    Paul Thompson Junior Member

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    Citizenship

    Thank you Ron.

    I will do just that!

    Cheers

    Paul
     
  6. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Just a tip for anyone who is a US citizen, but does not have a certificate of citizenship. Forget the N-600, go straight for a passport. The Supreme Court has held that an unexpired US passport is the only conclusive evidence of US citizenship, so nothing else really matters. Also, the State Department is much easier to deal with, their people are much brighter, and their processing times are much shorter. There is no reason at all to deal with the CIS (unless you are deeply into S&M).
     
  7. keithford

    keithford New Member

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    I have a similar legal question If a child was born abroad(Philippines)in 1971 out of wedlock to a u.s.citizen (father)deceased. The child is now 44 but have all the proof of father's u.s.citizenship,residence requirement of parent and blood relation (DNA). The question is, is he (child) automatically legitimated under the Uniform Parentage Act at the State of New Mexico? Because it says that the legitimate and illegitimate child have the same right. Kindly reply for enlightenment because he wants to know if he have a claim for citizenship.


    Thank you and God bless.
     
  8. Ron Gotcher

    Ron Gotcher Attorney at Law

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    You need to speak with a family lawyer in New Mexico.
     

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