MAHAL

                                                    Interim Decision #1779




                             MATTER or MAIL11

                       In Visa Petition Proceedings
                                  A-17276575
                                  A-17276577
                   Decided by Board January 9, 1967
The beneficiaries, issue of a polygamous (second) marriage of their father in
  Pakistan in 1928 according to Hindu rites, are entitled to fifth preference
  classification upon the filing of a visa petition by their United States citizen
  half-brOther, a child of the dame father by his original marriage in 1917 in
  India, sine* the polygamous marriage of the father was legal in India and
  Pakistan under Hindu law prevailing at that time and the children of such
  polygamous marriage were legitimate under the law then prevailing.
ON BEHALF OF PETITIONER Jack C. Dozier, Esquire
                      Atherton & Dozier
                      520 Wells Fargo Bank Bldg.
                       Stoekton,.California 05202
                       (Brief Sled)

  The cases come forward pursuant to certification by the District
Director of his orders dated October 28, 1966 denying the visa, petitions
 for the reason that the beneficiaries are the offspring of a second polygamous marriage, which while valid where performed in Pakistan,
 cannot be considered as valid for immigration purposes; and that the
issue of such a marriage do not enjoy a brother-sister relationship with
the issue of the original and recognized marriage and are not entitled
to status as the brother and/or sister of a citizen of the United States.
   The petitioner, a native of Pakistan, a citizen of the United States
by naturalization on December 12, 1960, seeks preference status under
section 203 (a) (5) of the Immigration and liaticinality Act on behalf
of the beneficiaries as his half brother and half sister, respectively.
The beneficiaries are both married. The male beneficiary was born
December 3, 1929 . in Pakistan and the female beneficiary was born
October 17, 1936 in India.
   The information submitted in support of the visa petitions estab•
lished that the petitioner is the legitimate son of Udham Singh Mahal
and Aupar Pirtam Kaur Mahal who were married June 1917 in India
according to the Hindu Rites. The beneficiaries, the half brother and
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Interim Decision #1779
 half sister of the petitioner, are the offspring of a second marriage
 of the same father to Aupar Kaur Mahal in October 1928 also under
the Hindu Rites. According to information from the Consulate General of India at San Francisco dated September 7, 1966, before the
 enactment of the Hindu Code Bill in 1955/1956, a man could legally
 marry more than one wife in India. It is established then that the
 petitioner and the beneficaries are the children of1  po_ygamous Mar*
 riage. It has been ascertained from the Indian Embassy at Washing.
ton, D.C. that the children of these polygamous marriages, which, it.
 must be remembered were legal in both India and Pakistan until
1955/1956, under the Hindu law are legitimate in every sense of the
word.
   The case therefore falls squarely within the decision in Matter of
K—W—S--, 

 (A.G., 1961). In that case the parties
were a sister and her half brother who were the offspring of a wife and
a concubine, respectively, in China. Under Chinese law the child of a
concubine who is acknowledged by the father, was equally as legitimate as the child of his lawful wife. In affirming the Board's order
that these children, who were legitimated under the law of China,
should be regarded as brother and sister, the Attorney General pointed
out that neither the decision nor the 1952 Act implies any approval
of the institution of concubinage or polygamy, which constitutes a
class excluded from entry into the United States under section 212
(a) (11) of the Immigration and Nationality Act. However, in the
1952 Act, Congress deemed it more in accordance with humanitarian
principles to try to keep together those offspring of a common parent
who have lived together as a family unit in accordance With the established laws and institutions of their place of residence, regardless of
whether or not those laws are in conformity with the long social and
family institutions:
  In the instant case the polygamous marriage of the father to two
wives in India or Pakistan was legal under Hindu law prevailing at
that time and the children of such polygamous marriages were under
the law then prevailing considered legitimate. Matter of K—W—S—,
(supra), is considered dispositive of the case to accord recognition of
a brother and sister relationship such as will support a petition for
preference status.
  ORDER: It is ordered that the visa petitions be approved for fifth
preference quota status on behalf of the beneficiaries.

  'In the unreported case of Matter of Aref Masan Hamden, VPO 7-3592 (July
27, 1955), the children of a polygamous marriage which was legal under the
Moslem faith were recognized as legitimate and eligible for preference quota
status as brothers of the petitioner.

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