Matter of Rodriguez

child placement agency licensed by the Colorado State Department of Social Services_ The visa petition now under consideration was filed on July 3, 1980. The District Director denied this petition on his finding that the bene- ficiary was not an orphan within the meaning of section 101(b)(1)(F) of the Immigration and Nationality Act, 8 U.S.C. 1101(b)(1XF), because she had two living parents who had neither abandoned, nor deserted her. The District Director noted that although the beneficiary's parents were unmarried, they were living together as a family unit with the beneficiary and the two other children born to them. On this basis, the District Director concluded that the beneficiary had two parents. The District Director also reasoned that the beneficiary has not been abandoned, as that term is contemplated by section 101(b)(1)(F) of the Act, because she has not become a ward of the State of Peru but rather had beeii turned over to the petitioners for adoption directly by her natural parents. Matter of Del Conte, 10 I&N Dec. 761 (BIA 1964). Section 101(13)(1)(F) of the Act defines the circumstances under which a child may be classified as an orphan:

儿童安置机构进行了一次有利的家庭调查。现审议的签证申请于1980年7月3日提交。 地区局长拒绝该申请，理由是其认定受益人不属于《移民和国籍法》第101(b)(1)(F)条、8 U.S.C. 1101(b)(1XF)所指的孤儿，因为她有两位在世的父母，且父母均未遗弃或抛弃她。地区局长指出，尽管受益人的父母未婚，但他们与受益人及其所生另外两名子女作为一个家庭单位共同生活。据此，地区局长认定受益人有两位父母。地区局长还认为，受益人未被遗弃——按该法第101(b)(1)(F)条所设想的该术语含义——因为她并未成为秘鲁国家的被监护人，而是由其生父母直接交给申请人收养。Matter of Del Conte, 10 I&N Dec. 761 (BIA 1964)。 该法第101(13)(1)(F)条规定了儿童可被归类为孤儿的情形：

(F) a child, under the age of fourteen at the time a petition is filed in his behalf to accord a classification as an immediate relative under section 201(b), who is an orphan because of the death or disappearance of, abandonment or desertion bv. or separation or loss from, both parents, or for whom the sole surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption; who has been adopted abroad by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who personally saw and observed the child prior to or during the adoption proceedings; or who is coming to the United States for adoption by a United States citizen and spouse jointly, or by an unmarried United. States citizen at least twenty-five years of age, who have or has complied with the preadoption requirements, if any, of the child's proposed residence: Provided, That the Attorney General is satisfied that proper care will be furnished the child if admitted to the United States: Provided further, That no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act. Because the District Director concluded that the beneficiary is a child with two parents, he reasoned that the petitioners must establish that these parents have either disappeared or have abandoned, deserted, been separated or.lost from the beneficiary if the child is to be classified as an orphan. However, I find that the beneficiary is the child of only one parent. Therefore, I conclude that the petitioners need only demon- strate that this sole parent is unable to provide for the beneficiary and has irrevocably released her for adoption. It is not necessary to show that the beneficiary has been abandoned. Thus, I need not consider this issue addressed by the District Director. The beneficiary was acknowledged by her natural father within 1 week of her birth; however, this act alone is insufficient to accomplish legitimation under the laws of Peru. Matter of Quispe, 16 I&N Dec. 174

(F) 在为其提交申请以根据第201(b)条获得直系亲属分类时未满14岁的儿童，该儿童因父母双亡或失踪、被父母双方遗弃或抛弃、或与父母双方分离或失去父母双方而成为孤儿，或仅存的单亲父母无力提供适当照顾并已书面不可撤销地释放该儿童以供移民和收养；该儿童已由美国公民及其配偶共同在国外收养，或由年满25岁的未婚美国公民在国外收养，且该美国公民在收养程序之前或期间亲自见过并观察过该儿童；或该儿童正前往美国由美国公民及其配偶共同收养，或由年满25岁的未婚美国公民收养，且该美国公民及其配偶或该美国公民已遵守该儿童拟居住地的收养前要求（如有）：但条件为，司法部长确信该儿童如获准进入美国将得到适当照顾：进一步条件为，任何此类儿童的生父母或先前收养父母此后不得凭借该父母身份享有本法项下的任何权利、特权或身份。 由于地区局长认定受益人为有两位父母的儿童，其推理为，若该儿童要被归类为孤儿，申请人必须证明这两位父母已失踪，或已遗弃、抛弃、与受益人分离或失去受益人。然而，我认定受益人仅为一位父母的孩子。因此，我认定申请人只需证明该单亲父母无力抚养受益人并已不可撤销地释放她以供收养。无需证明受益人已被遗弃。因此，我无需考虑地区局长所处理的该问题。 受益人在出生后1周内被其生父承认；然而，仅此行为不足以根据秘鲁法律完成婚生化。Matter of Quispe, 16 I&N Dec. 174

(BIA 1977). This is true, even though such an act of acknowledgment would cause an illegitimate child to be considered to have been legiti- mated if born in some other countries_ See, for example: Matter of Sanchez, 16 I&N Dec. 671 (BIA 1979) (Honduras); Matter of Sinclair, 13 I&N Dec. 613 (BIA. 1962) (Panama); Matter of Krzyewski, 8 I&N Dec. 73 (BIA 1958) (Poland); Matter of Gallinu, 9 I&N Dec. 518 (BIA 1961) (Hungary); Matter of ,Tancar, 11 I&N Dec. 365 (BIA 1965) (Yugoslavia, Rumania); Matter of Wong, 16 I&N Dec. 646 (BIA 1978) (China). By Article 314 of the Peruvian Civil Code, legitimation of children born out of wedlock only takes place by subsequent marriage of the parents or by judicial declaration in certain narrowly-defined circumstances. Matter of Quispe, supra. The record before me indicates that the beneficiary's parents have not married. There- fore her status was not converted to a legitimate child by the acknowl- edgment of paternity. The beneficiary has only one parent for the pur- poses of the Immigration and Nationality Act—her mother. I have carefully reviewed the record and conclude that the beneficiary's sole parent and the petitioners have taken the actions which make the beneficiary an orphan. The beneficiary's mother has declared and a social welfare agency study in Peru has verified that she is unable to provide proper care for the beneficiary. In an affidavit before a municipal court in Peru, she irrevocably released her child for emigration and adoption. A home study of the petitioners indicates that they are capable of providing for the beneficiary and that they intend to adopt her. I conclude that the beneficiary is an orphan and the visa petition should be approved. ORDER: District Director's decision vacated and'petition approved.

(BIA 1977)。这是正确的，即使此种承认行为会使非婚生子女在其他一些国家出生时被视为已婚生化。 参见例如：Matter of Sanchez, 16 I&N Dec. 671 (BIA 1979)（洪都拉斯）；Matter of Sinclair, 13 I&N Dec. 613 (BIA. 1962)（巴拿马）；Matter of Krzyewski, 8 I&N Dec. 73 (BIA 1958)（波兰）；Matter of Gallinu, 9 I&N Dec. 518 (BIA 1961)（匈牙利）；Matter of ,Tancar, 11 I&N Dec. 365 (BIA 1965)（南斯拉夫、罗马尼亚）；Matter of Wong, 16 I&N Dec. 646 (BIA 1978)（中国）。根据《秘鲁民法典》第314条，非婚生子女的婚生化仅通过父母事后结婚或在某些狭义界定的情形下通过司法宣告而发生。Matter of Quispe, supra。我面前的记录表明受益人的父母尚未结婚。因此，其身份并未因承认父系而转为婚生子女。就《移民和国籍法》而言，受益人只有一位父母——她的母亲。 我已仔细审查记录，并认定受益人的单亲父母与申请人已采取使受益人成为孤儿的行动。受益人的母亲已声明，且秘鲁一家社会福利机构的调查已证实，她无力为受益人提供适当照顾。在秘鲁一市法院面前的宣誓书中，她不可撤销地释放其子女以供移民和收养。对申请人的家庭调查表明，他们有能力抚养受益人并打算收养她。我认定受益人为孤儿，签证申请应予批准。 命令：地区局长的决定撤销，申请批准。