GUR

                                                            Interim Decision #2560




                                  MATTER OF GUR

                           In Visa Petition Proceedings
                                      A-21032374

                        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(bX1) and (2) of the Aet
(2) Notwithstanding the fact that petitioner was over 21 years of age when the marriage
  which created the sttprelationship 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:                               ON BEHALF OF SERVICE:
 David Carliner, Esquire                                 Mary Jo Grotenrath
 Suite 931, Investment Building                          Appellate Trial Attorney.
 1511 K Street, N.W.
 Washington, D.C. 20005

BY: Milbollan, 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

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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 Board's
decision in Matter of Heung, supra, the beneficiary qualifies as the
petitioner's stepbrother, notwithstanding the fact that the marriage
creating the steprelationship occurred when the petitioner was over 21
years of age. We agree.
  In Heung, the petitioner was 22 years old when his mother married
the beneficiary's father. We held there that the beneficiary became the
stepchild of the petitioner's mother and that the petitioner and the
beneficiary therefore had a common "parent" and were "children" within
the meaning of section 101(b)(1) and (2) of the Act.
  The District Director cites Matter of Garner, supra, in support of his
decision. In Garner, the Board held that, because the beneficiary was
over 18 at the time of the marriage between her mother and the
petitioner's father, no steprelationship was created under the Act. Unlike the beneficiary in Garner, the beneficiary in the present case was
five years old when his mother married the petitioner's father.
   Under the Board's decision in Matter of Heung, supra, the petitioner
and beneficiary are "brothers" for the purposes of section 203(a)(5) of
the Act. Accordingly, the appeal will be sustained and the petition will
be granted.
   ORDER: The appeal is sustained; the visa petition is granted.