Matter of Gur, Interim Decision #2560

• Decision Date: 02 March 1977
• Docket Number: A-21032374,Interim Decision #2560
• Citation: 16 I&N Dec. 123
• Parties: MATTER OF GUR In Visa Petition Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

16 I&N Dec. 123

MATTER OF GUR

In Visa Petition Proceedings

Interim Decision #2560

A-21032374

Board of Immigration Appeals.

Decided by Board March 2, 1977.

(1) In order to support a claimed "brother" or "sister" relationship under section 203(a)(5) of the Immigration and Nationality Act, the petitioner must 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

(2) Notwithstanding the fact that petitioner was over 21 years of age when the marriage which created the steprelationship between the petitioner and beneficiary took place, the beneficiary qualifies as the petitioner's stepbrother and the visa petition will be granted.

(3) Matter of Garner, Interim Decision 2357 (BIA 1975): distinguished; Matter of Heung, Interim Decision 2334 (BIA 1974), followed.

ON BEHALF OF PETITIONER: David Carliner, Esquire Suite 931, Investment Building 1511 K Street, N.W. Washington, D.C. 20005

ON BEHALF OF SERVICE: Mary Jo Grotenrath Appellate Trial Attorney

BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members

The United States citizen petitioner applied for preference status for the beneficiary as his brother under section 203(a)(5) of the Immigration and Nationality Act. In a decision dated August 16, 1974, the District Director denied the visa petition. The petitioner has appealed from that denial. The appeal will be sustained.

In order to support a claimed "brother" or "sister" relationship under section 203(a)(5) of the Act, the 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. Matter of Garner, Interim Decision 2357 (BIA 1975); Matter of Heung, Interim Decision 2334 (BIA 1974).

The petitioner claims that the beneficiary is his stepbrother and that they are "children" of a common "parent," namely, the petitioner's father. The District Director, however, rejected the petitioner's claim on the ground that, because the petitioner was over 21 years of age at the time of his father's marriage to the beneficiary's mother, the petitioner did not become the stepchild of the beneficiary's mother. He conceded that the beneficiary, five years old at the time of the marriage, became the stepchild of the petitioner's father within the meaning of the Act.

Counsel for the petitioner argues on appeal that, under the...