GARNER

15 I. & N. Dec. 215

• Court: Board of Immigration Appeals
• Decided: July 1, 1975
• Docket: ID 2357
• Status: Published

Opinion

Interim Decision #

MATTER OF GARNER

In Visa Petition Proceedings

A-20253948

Decided by Board March 20,1975 (l) The visa petition to classify the beneficiary as a preference immigrant under s 203(a)(5) of the Immigration and Nationality Act, as the sister of the petition; denied by the district director because beneficiary did not meet thedefinition of' set focth in section 101(b)(1)(C) of the Act. While beneficiary and petitioner we children of a common parent (the father), beneficiary had not been legitimated p her eighteenth birthday. (2> While the term "aster" is not defined in the Act, to support a claimed brother relationship necessary for qualification under section 203(aX5), petitioner ai nefieiary must establish that they once qualified as children of a common par provided in sec. 101(b)(1) and (2) of the Act. (S)Matter o/C—, 6 L &N. Dec 617 (BIA1955) and MatterofD—M—, 71, & N.I> (BIA1957) are overruled insofar as they hold that the requirements of section10 of the Act are not applicable to "brothers" and "sisters" under section203(a)(5) Act. ON BEHALF OF PETITIONER: Essel W. Baily, Jr., Esquire Richard M. Wood & Associates 320 North Main Street Ann Arbor, Michigan 48104

The United States citizen petitioner applied for preference elas. tion for the beneficiary as her legitimated half sister under si 203(a)(5) of the Immigration and Nationality Act. The district dii denied the petition. The petitioner has appealed from that denial appeal will be dismissed. The petitioner is a legitimate child of her parents. The beneficiar bom out of wedlock to the petitioner's father and a different moth appears from the record that the beneficiary was legitimated und( laws of Great Britain, the place of her father's domicile, by the mai of her parents. However, that marriage took place when the benef was 23 years of age. The district director concluded that the beneficiary could not q as the petitioner's "sister" through their common father becauf beneficiary was illegitimate at birth and had not been legitime

215 Interim Decision #2357

compliance with the 18-year age requirement of section 101(b)(1)(C) of the Act. Counsel maintains that the requirements of section 101(b)(1)(C) are inapplicable to an alien whose classification as a "sister" is sought under section 203(a)(5) of the Act. The term "sister" is not defined in the Act. However, the term "child" is defined in section 101(b)(1) of the Act. Section 101(b)(1)(C) defines the term "child" as including "a child legitimated under thelaw of thechild's residence or domicile, or under the law of the father's residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation." The definition of "child" contained in section 101(b)(1) has been applied in determining whether aliens are eligible for preference clas- sification under section 203(a) as "sons or daughters," ' or "brothers or sisters." z It is also applicable in determining whether an individual is a "parent" under section 101(b)(2) of the Act.3 The application of the section 101(b)(1) definition of "child" in determining whether an indi- vidual qualifies as a "son" or a "daughter" under section 203(a) has been approved in Nasareno v. Attorney General of United States, 336 F. Supp. 1219, affirmed 512 F.2d (D.C. cir. 1975), cert, den. sub norm Nasareno et ai v. Levi, Attorney General, 423 U.S. 832(1975). In Matter oftteung, 15 I. & N. Dee. 145 (BIA November 25,1974), we held that in order to support a claimed "brother" or "sister" relation- ship under section 203(a)(5), a petitioner has to establish that both he and the beneficiary once qualified as "children" of a common "parent" within the meaning of sections 101(b)(1) and (2) of the Act. In Matter of Kim, U I. & N. Dec. 561 (BIA 1974), we specifically dealt with the issue of whether a child born out of wedlock who was over the age of 18 years when legitimated by his father could qualify for 1 Legitimated was or daughters: Matter of Coker, 24 I. & N. Dec. 621 (BIA 1974); Matter o/JvHama* 14 I. & N. Dec. 435 (BIA1973); Matter of Amstasiadis, 12 I. &N. Dec. 99 (BIA 19(>7); Matter of Mandemrth, 12 I. & N. Dec. 199 (BIA 1967); Matter of Lauer, 121. &N. Dec. 210 (BIA 1967).Adopted sons or daughters: Matter ofNg, 14L& N. Dec. 135 (BIA 1972); Matter ofCaramavzava, 121. & N.Dec.47 (BIA1967);Matter of Yue, 12 I. & N. Cec. 747 (BIA 1968). Stepsons or stepdaughters: Matter of C - , S I. &N. Dec. 692 (BIA I960); Matter ofPagnerre, 13 I. & N, Dec. 688 (BIA 1971). 3 Legitimated brothers or sisters: Matter of Kim, 14 I. & N. Dec. 561 (BIA 1974); Matter ofVanPamelm, 12 I. & N. Dec. 11 (BIA1966);Matter ofK-~W~S—, 91. &N. Dec. 396 (BIA 1958,1961; A.G. 1961). Adopted brothers andsisters:Matter of Butterly, 14 I. & N. Dec. 160 (BIA 1973); Matter ofBoghdadi, 12 I. & N. Dec, 666 (BIA 1968); Matter ofFonQ, .10 I. & N. Dee. 497 (BIA 1964). Stepbrothers or stepsisters: Matter of Heung, 151. & N. Dee, 145 (BIA November 25,1974), overruling Matter of Campbell, 13 I. & N. Dec. 652 (BIA 1970). 3 Matter of PoVdoro. 12 I. & N. Dee. 353 (BIA1967);Matter of Schaad, 101. &N. Dec. 555 (BIA 1964).

216 Interim Decision #2367

preference classification under section 203(a)(5) as a '"brother" through the paternal relationship. We applied the section 101(b)(1)(C) definition of a legitimated "child" and held that the b'eneficiary was not entitled to preference classification. We are aware of several cases which indicate that the section 101- (b)(1) definition of "child" is not applicable in determining whether a beneficiary qualifies as a "brother" or a "sister" under section 203(a)(5) (formerly section 203(a)(4)). Matter of€~- t 6 I. & N. Dec. 617 (BIA 1955); Matter ofD—M—, 7 1 . & N. Dec. 441 (BIA1957).Over the years, we have receded from the view expressed in these cases, and we now specifically overrule them insofar as they hold that the requirements set forth in section 101(b)(1) are not applicable to "brothers" or "sisters" under section 203(a)(5). Finally, counsel argues that the beneficiary can qualify as the peti- tioner's stepsister by virtue of the marriage between the petitioner's father and the beneficiary's mother. It is clear, however, that for immi- gration purposes no steprelationship between the petitioner and the beneficiary was created by the marriage, because the beneficiary was beyond the 18-year age requirement of section 101(b)(1)(B) of the Act. Matter of Heung, 15 I. & N. Dec. 145 (BIA November 25, 1974); Matter of Kim, supra. The district director's decision was correct. The appeal will be dis- missed. ORDER: The appeal is dismissed.