Interim Decision #2235 

MATTER OF BUTTERLY 

In Visa Petition Proceedings 

A-19350307 

Decided by Board November 1, 1973 

In order to qualify for preference classification under section 203(a)(5) of the 

Immigration and Nationality Act, as amended, as an adopted brother, the 

adoption must have been in accordance with the requirements of section 

101(b)(1)(E) of the Act, as amended. Hence, in the instant case, beneficiary, 

whose adoption by petitioner's mother occurred when he was 18 years of age, 

is ineligible for fifth preference status as the adopted brother of the petitioner. 

The United States citizen petitioner applied for preference 

status for the beneficiary as her adopted brother under section 

208(a)(5) of the Immigration and Nationality Act. The District 

Director denied the petition on the ground that the beneficiary did 

not qualify as the petitioner's brother for immigration purposes 

because he had not been adopted in conformity with section 101(b) 

(1)(E) of the Act. The petitioner has appealed from that denial. The 

appeal will be dismissed. 

The beneficiary, a native and citizen of Ireland, is presently 29 

years of age. The file contains a certificate indicating the beneficiary was adopted by the petitioner's mother in 1962 when he was 18 

years of age. 

The term "brother" is not defined in the Act. However, the term 

"child" is defined in section 101(b)(1XE) to include: 

a child adopted while under the age of fourteen years if the child has thereafter 

been in the legal custody of, and has resided with, the adopting parent or 

parents for at least two years. 

The issue in this case is whether, in order to qualify as an 

adOpted brother of the petitioner under section 203(a)(5) of the Act, 

the beneficiary must have been adopted in accordance with the 

age and other requirements of section 101(b)(1)(E). That is; for 

purposes of fifth preference, where one of the siblings is adopted, 

must the adopted brother or sister have qualified at some point in 

time as an adopted "child" under the Immigration and Nationality 

Act. 

In one case, Matter of Fong, 10 I. & N. Dec. 497 (BIA 1964), we 

approved a visa petition filed on behalf of an adopted brother of 

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Interim Decision #2235 

the petitioner, where the beneficiary had been adopted while only 

several months old. Our decision merely reflected the enactment of 

section 101(b)(1)(E), which expanded the definition of "child" under 

the immigration laws to include an adopted child. We overruled an 

earlier decision, Matter of M—, 6 I. & N. Dec. 180, which held that 

brothers and sisters through adoption did not qualify as "brothers" and "sisters" under the Act. Although the beneficiary in the 

Fang case was adopted in accordance with the requirements set 

forth in section 101(b)(1XE), we did not expressly state that an 

adoption in compliance with that section was a sine qua non for 

recognition of the adoptive relationship. Our decision in the present case amplifies our holding in the Fong case by articulating 

precisely such a requirement. 

In other situations involving adopted persons we held that an 

adoptive relationship relied upon for immigration purposes must 

have been initially entered into in accordance with section 

101(b)(1XE). For instance, in Matter of Polidoro, 12 I. & N. Dec. 353 

(BIA 1967), we were faced with a case involving a petitioner who 

had been adopted when 35 years of age, and who later filed a visa 

petition on behalf of her adoptive father. We ruled that the 

adoptive relationship in that case was insufficient to support the 

issuance of a preference immigrant visa because the petitioner 

had not been adopted in accordance with the age requirement of 

section 101(13)(1)(E). 

We have also dealt with the issue of adoption for immigration 

purposes in relation to applications for preference status as a 

"son" or "daughter" of a United States citizen or of a permanent 

resident alien. The terms "son" and "daughter" are also undefined 

in the Act. We ruled that for an adopted person to qualify as a "son" 

or "daughter" he or she must have been adopted in accordance with 

section 101(bX1)(E). Matter of CaTagnaawana, 12 I. & N. Dec. 47 (MA 

1967); Matter of Yue, 12 L & N. Dec. 747 (BIA 1968); Matter of Ng, 

Interim Decision No. 2147 (BIA 1972). 

We hold that, in order to qualify as an adopted brother for 

immigration purposes, an individual must have been adopted in 

accordance with the age and other requirements of section 

101(bX1)(E). Therefore, we conclude that the District Director's 

denial of the petition was correct. The appeal will be dismissed. 

ORDER: The appeal is dismissed. 

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