VP 3-70539-I.
Decided by Board November 3, 1955.
Visa petition — Preference quota status under section 203 (a) (4) of Immigration and Nationality Act — Illegitimate half-brothers and sisters.
(1) Eligibility for preference quota status as the brother or sister of a United States citizen pursuant to section 203 (a) (4) of the Immigration and Nationality Act may be established in the cases of illegitimate children whose common parent is the mother.
(2) This decision modifies Matter of W----, VP 8-3340, Int. Dec. No. 619, but leaves unchanged the holding in Matter of C----, 5 IN Dec. 610, denying fourth preference status to brothers and sisters of illegitimate birth whose common parent is the father.
BEFORE THE BOARD
Discussion: The matter comes forward on appeal from the order of the District Director, New York District, dated January 25, 1955, denying the visa petition on the ground that the beneficiary is not considered to be a sister within the meaning of section 203 (a) (4) of the Immigration and Nationality Act and, hence, not entitled to preference quota status.
The petitioner, a naturalized citizen, seeks fourth preference status on behalf of the beneficiary, his alleged sister. It is indicated that the petitioner and the beneficiary have the same parents who were not married although they lived together for many years. There have been submitted birth certificates of the parties indicating that they were born of a common mother. It is conceded that the petitioner and beneficiary were illegitimate, have never been legitimated and are the issue of the same mother.
Section 203 (a) (4) provides a preference for brothers and sisters of citizens of the United States. The relationship may be that of full or half brother or sister. We have held in the case of illegitimates, where the common parent was the father, that the relationship of brother or sister for immigration purposes under section 203 (a) (4) does not arise ( Matter of C----, 5 IN Dec. 610).
Upon the basis of the holding of the Attorney General in Matter of M----, 5 IN Dec. 120, and Matter of A----, 5, I. N. Dec. 272, the same result was reached in the case involving illegitimate sisters born of parents common to both ( Matter of W----, VP 8-3340, Int. Dec. No. 619). Upon reconsideration and study of the arguments used in Matter of A----, 5 IN Dec. 272, it is believed that the position stated in Matter of W----, ( supra), may be modified so as to include within the definition of brother or sister illegitimates born to a common mother. The arguments in favor of such position are fully set forth in the Board order in Matter of A----, ( supra), and in view of the consideration that the limitation imposed by definition in section 101 (a) (27) (A) relating to "child" is not present in the case of brothers or sisters, it is believed that withdrawal from our holding in Matter of W----, ( supra), is warranted. Along the same lines we have held that a citizen mother may obtain fourth preference status on behalf of an illegitimate son or daughter. We conclude that sons and daughters of a common mother are eligible for preference as brothers and sisters under section 203 (a) (4). Our prior holding in Matter of C----, 5 IN Dec. 610, denying fourth preference to brothers and sisters whose common parent is the father remains unchanged, the distinction being justified by the fact that historically illegitimates obtain no rights through the natural father.
Notice is taken of the argument of counsel involving adopted brothers and sisters. Since the present case does not present such a situation, the argument will be disregarded as not relevant to the issue in the case before us.
Order: It is ordered that the visa petition be approved for fourth preference status.