Interim Decision #2754
MATTER OF GONZALEZ
In Visa Petition Proceedings
A-12727931
Decided by Board January 17, 1980
(1) In order to support a claimed sibling relationship under section 203(a)(5) of the
Immigration and Nationality Act, S U.S.C. 1153(a)(5), the petitioner must establish
that she and the beneficiary once qualified as the "children" of a common "parent" as
those terms are defined by section 101(b)(1) and (2) of the Act, S U.S.C. 1101(b)(1) and
(2).
(2) The mere fact of a marriage that technically creates a steprelationship is insufficient
to establish the existence of that steprelationship for immigration purposes; however,
such relationship may be established upon the additional showing that the stepparent,
prior to the stepchild's eighteenth birthday, evinced an active parental interest in the
child's support, instruction, and general welfare. Matter of Moreira, Interim Decision
2720 (BIA 1979).
(3) In determining whether a stepparent-stepchild relationship exists under section
101(b)(1)(B) of the Act, the fact that the beneficiary is an adulterine child born after
the marriage which created the steprela.tionship, rather than prior to that marriage,
is irrelevant. Matter of Stoltz, 15 I&N Dec. 362 (BIA 1974,1975; A.G. 1975).
(4) Where evidence establishes that the petitioner's natural mother took the beneficiary, the illegitimate offspring of her husband and another woman, into her home and
raised him as her own son, the beneficiary in fact once qualified as her child within the
meaning of section 101(b)(1)(B) of the Act, inasmuch as the petitioner qualifies as her
child by reason of section 101(b)(1)(A) of the Ad, the petitioner and the beneficiary
have a common parent and accordingly may be regarded as sister and brother under
section 203(a)(5) of the Act.
ON BEHALF OF PETITIONER: Benjamin Globman, Esquire
915 Asylum Avenue
Hartford, Connecticut 06105
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
This case is before us on appeal from the decision of the District
Director dated January 30, 1979, which denied the visa petition filed by
the United States citizen petitioner to accord the beneficiary preference status as her brother pursuant to section 202(a)(5) of the Immigration and Nationality Act, 8 1J.S.C. 1153(a)(5). The appeal will be
sustained and the visa petition will be approved.
236
Interim Decision 112754
The petitioner was born in the Dominican Republic on August 12,
1926, the legitimate daughter of Francisco Ramirez and Rosalinda
Soriano. The beneficiary, a native and citizen of the Dominican Republic, was born of a relationship between Francisco Ramirez and
Enadina Gonzalez Ruiz on July 1, 1946, while Francisco Ramirez was
married to Rosalinda Soriano. In affidavits executed in support of the
visa petition, the petitioner and her husband declared that the beneficiary was brought into the home of the petitioner's family and was
raised by Rosalinda Soriano as her own son until her death when the
beneficiary was 13 years of age. The beneficiary continued living with
Francisco Ramirez until his death and thereafter resided with other
close relatives of the petitioner.
In order to support a claimed sibling relationship under section
203(a)(5) of the Act, the petitioner must establish that she and the
beneficiary once qualified as the "children" of a common "parent" as
those terms are defined by section 101(b)(1) and (2) of the Act, 8 U.S.C.
1101(b)(1) and (2). See Matter'of Bourne,16 I&N Dec. 367 (BIA 1977);
Matter of Garner,
16 I&N Dec. 367 (BIA 1975).
The District Director denied the visa petition as a matter of law,
concluding that the beneficiary cannot qualify as a "child" of the
petitioner's parents within the purview of the definition set forth in
section 101(b)(1)(A) through (F) of the Act. The District Director's
legal conclusion is erroneous.
Where the claimed common parent is the natural father of the
petitioner and the beneficiary, each must establish that he or she was
legitimate at birth pursuant to section 101(b)(1)(A), legitimated prior
to reaching 18 years of age in accordance with section 101(b)(1)(C), or
adopted before his or her fourteenth birthday as provided in section
101(b)(1)(E) of the Act. The petitioner, as the legitimate offspring of
Francisco Ramirez, clearly qualifies as his "child" within the meaning
of the Act. However, since the beneficiary was born out of wedlock and
was never adopted by Francisco Ramirez, it must be shown that the
beneficiary was legitimated by him prior to reaching 18 years of age if
the beneficiary is to qualify for immigration benefits by virtue of his
relationship to his natural father. That showing cannot be made in the
instant case since under the law of the Dominican Republic, the
applicable law in the case, legitimation can only be accomplished by
the acknowledgment of the illegitimate offspring and the subsequent
marriage of the child's natural parents. Matter of Reyes, 16 I&N Dee.
475 (BIA. 1978). It has not been alleged that the beneficiary's natural
parents ever married.
We nevertheless conclude that the beneficiary qualifies as the
brother of the petitioner through the operation of section 101(b)(1)(B)
of the Act, 8 U.S.C. 1101(B)(1)(B), which includes within the definition
237
Interim Decision #2754
of the term "child":
(B) a stepchild, whether or not born out of wedlock, provided the child had not
reached the age of eighteen years at the time the marriage creating the status of
stepchild occurred; or...
In a recent precedent decision, Matter of Moreira, Interim Decision
2720 (BIA. 1979), we construed the foregoing section of the Act and
formulated a definition of the term "stepchild" for purposes of the
immigration laws. After reviewing the legislative history of the
stepchild provision and the case law, both from the Board and the
courts, we held that the mere fact of a marriage that technically
creates a steprelationship is insufficient to establish the existence of
that steprelationship for immigration purposes; however, such relationship may be established upon the additional showing that the
stepparent, prior to the stepchild's eighteenth birthday, evinced an
active parental interest in the child's support, instruction, and general
welfare.
We are satisfied that the petitioner has made the requisite showing
that the beneficiary in fact once qualified as the child of Rosalinda
Soriano within the meaning of section 101(b)(1)(B) of the Act as
construed in Matter of Moreira, supra.' The petitioner, legitimate at
birth, qualifies as the child of Rosalinda Soriano by reason of section
101(b)(1)(A) of the Act. Inasmuch as the petitioner and the beneficiary
have a common parent within the context of the Immigration and
Nationality Act, namely, Rosalinda Soriano, the petitioner's natural
mother and the beneficiary's stepmother, they may be considered as
"sister" and "brother" under section 203(a)(5). The appeal will accordingly be sustained.
ORDERS The apnealis sustained and the visa petition is approved.
' The fact that the beneficiary is an adulterine child born after the marriage which
created the steprelationship, rather than prior to that marriage, is irrelevant. Matter of
Stuitz, 15 I&N Dec. 362 (BIA 1974,1975; A.G. 1975).
238
