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.