Opinion

FERREIRA

  • 16 I. & N. Dec. 494
Court
Board of Immigration Appeals
Filed
Jul 1, 1978
Status
Published
Cited by
3 cases
Authority
More cited than 61.6%

The opinion

Interim Decision #2645

MATTER OF FERREIRA

In Visa Petition Proceedings

A-20833647

Decided by Board April 19, 1978

(1) In order to support the claimed "sister" relationship under section 203(a)(5) of the

Immigration and Nationality Act, the petitioner must establish that she and the ben-

eficiary once qualified as the "children" of a common "parent" as those terms are defined

by section 101(b)(1) and (2) of the Act.

(2) The petitioner, the legitimate offspring of her father, qualifies as his "child" within the

meaning of section 101(b)(1)(A) of the Act; however, since the beneficiary was born out

of wedlock and was neither adopted in accordance with section 101(b)(1)(E) of the Act

by her putative natural father, the petitioner's father, nor legitimated in accordance

with section 101(b)(1)(C) of the Act by the marriage of her mother and her putative

natural father when she was over 18 years of age, the beneficiary does not qualify as his

"child" within the meaning of section 101(b)(1) of the Act and a visa petition predicated

upon the relationship of the petitioner and the beneficiary to a common father must be

denied as a matter of law.

(3) The petitioner became the stepchild of the beneficiary's mother pursuant to section

101(b)(1)(B) of the Act upon the marriage of the petitioner's father to the beneficiary's

mother when the petitioner was under 18 years of age and the beneficiary qualifies as the

"child" of her mother by reason of section 101(b)(1)(D) of the Act; hence, the petitioner

and the beneficiary are "children" of a common "parent" within the meaning of section

101(b)(1) and (2) of the Act and may be regarded as "sisters" for purposes of section

203(a)(5) of the Act.

ON BEHALF OF PETITIONER: Joseph Taboada, Jr., Esquire

11 Hill Street

Newark, New Jersey 07102

BY: 14hlhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

This case is before us on appeal from a decision of the District

Director dated June 1, 1977, denying the visa petition sled by the

'United States citizen petitioner to accord the beneficiary preference

status as her sister pursuant to section 203(a)(5) of the Immigration and

Nationality Act, 8 U.S.C. 1153(a)(5). The appeal will be sustained.

The petitioner was born in 1953, a legitimate child of her parents,

Antonio Vilaverde and the former Maria Alves, who were married in

1949. It appears from the record that the beneficiary, a native and

citizen of Portugal, was born out of wedlock in 1944 to the petitioner's

494

Interim Decision #254o

father, Antonio Vilaverde, and a different mother, Rosa Alves. The

petitioner maintains that the beneficiary had been legitimated by their

father's marriage in 1969 to Rosa Alves, the beneficiary's natural

mother, and that the beneficiary is accordingly entitled to preference

status as her half sister. The petitioner's mother, Maria Alves, died in

1963.

In order to support a claimed "sister" 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, Interim Decision 2618 (BIA

1977); Matter of Gur, Interim Decision 2560 (BIA 1977); Matter of

Garner, Interim Decision 2357 (BIA 1975); Matter of Hueng, Interim

Decision 2334 (BIA 1974). The cases relied on by the petitioner, Matter

of D—M—, 7 I. & N. Dec. 441 (BIA 1957); Matter of C—, 6I. & N. Dec.

617 (BIA 1955), were expressly overruled by the Board insofar as they

hold that the requirements set forth in section 101(b)(1) are not appli-

cable in determining whether a "brother" or "sister" relationship exists

under section 203(a)(5). See Matter of Garner, supra.

In the instant case, the petitioner claims preference status for the

beneficiary by virtue of their relationship to a common natural father,

Antonio Vilaverde. Under section 101(b)(1)(A), 8 U.S.C. 1101(b)(1)(A),

the petitioner, as the legitimate offspring of Antonio Vilaverde, clearly

qualifies as his child within the meaning of the Act. However, since the

beneficiary was born out of wedlock, the petitioner must establish that

the beneficiary falls within one of the other definitions of the term

"child" enumerated in section 101(b)(1). There has been no allegation

that the beneficiary has been adopted by Antonio Vilaverde pursuant to

section 101(b)(1)(E), 8 U.S.C. 1101(b)(1)(E); therefore, if she is to qual-

ify as his child for the purpose of obtaining immigration benefits, it must

be shown that she has been legitimated by him in accordance with the

provisions of section 101(b)(1)(C), 8 U.S.C. 1101(b)(1)(C).

Section 101(b)(C) defines the term "child" to include "a child legiti-

mated under the law of the child'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." (Em-

phasis supplied.) Inasmuch as the marriage of the beneficiary's natural

parents took place when the beneficiary was 24 years of age and there is

no evidence in the record suggesting that legitimation had been ac-

complished by any other means prior to the beneficiary's reaching the

age of 18 years, compliance with the requirements of section

101(b)(1)(C) has not been established. Accordingly, the District Direc-

495

Interim Decision #2645

for correctly found that a visa petition predicated upon the relationship

of the petitioner and the beneficiary to a common natural father must be

denied as a matter of law.

We nevertheless conclude that the beneficiary qualifies as the sister of

the petitioner through the operation of section 101(b)(1)(B) and (D) of

the Act, 8 U.S.C. 1101(b)(1)(B) and (D), which includes in the definition

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

(D) an illegitimate child, by, through whom, or on whose behalf a status, privilege, or

benefit is sought by virtue of the relationship of the child to its natural mother. . . .

The petitioner, the legitimate child of Antonio Vilaverde, was under

the age of 18 years at the time of her father's marriage in 1969 to Rosa

Alves and thus became the stepchild of Rosa Alves within the meaning

of section 101(b)(1)(B) by virtue of that marriage. See Matter of Hueng,

supra. The beneficiary, illegitimate at birth, qualifies as the child of

Rosa Alves by reason of section 101(b)(1)(D). Therefore, the petitioner

and the beneficiary have a common parent within the context of the

Immigration and Nationality Act, namely, Rosa Alves, the petitioner's

stepmother and the beneficiary's natural mother.

Since the petitioner and the beneficiary are "children" of a common

"parent" within the meaning of section 101(b)(1) and (2) of the Act, they

may be considered as "sisters" under section 203(a)(5). We shall accord-

ingly sustain the appeal.

ORDER: The appeal is sustained and the visa petition is approved.

496

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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