21.9 Petition for a Sibling.

(a) Establishing the Standing of the Petitioner .

Only a U.S. citizen who is 21 years of age or older may file a petition for a brother or sister for classification under section 203(a)(4).

(b) Establishing a Qualifying Relationship .

It must be established that the petitioner and beneficiary are or once were "children of a common parent" within the meaning of section 101(b)(1) and (2) of the Act. A consanguineous (i.e., blood) relationship between the petitioner and the beneficiary is not required (see Matter of Hueng , 15 I. & N. Dec. 145 and Matter of Garner , 15 I. & N. Dec. 215). The parent-child relationships can be established through any of the means recognized in the definition of child contained in section 101(b)(1) of the Act (i.e., through birth, through adoption, or through a marriage creating a steprelationship). As in the case of a stepparent-stepchild relationship, a stepsibling relationship is normally dissolved should the marriage of the parent and stepparent end in divorce or annulment (see the discussion under Chapter 21.4 ). It may help, therefore, to look upon the adjudication of a petition for a sibling as being more of an adjudication of two separate relationships: the relationship between the petitioner and his/her parent, and the relationship between the beneficiary and that same parent. An example may help to illustrate this point:

John Smith married Mary Jones. At the time of the marriage, John Smith had a 19 year old son, Fred, and Mary Jones had a 17 year old daughter, Betty and a 22 year old son, Steve. Fred was the legitimate offspring of John’s prior marriage, and Betty and Steve were the legitimate offspring of Mary’s prior marriage, both prior marriages having been legally dissolved. Of the 5, only Fred is a citizen of the U.S., the rest being neither citizens nor LPRs. Because Fred was over age 18 at the time of the marriage, he is not considered to be Mary’s stepson under immigration law; likewise, Steve is not considered to be Fred’s stepson. Betty, on the other hand, became John’s stepdaughter because she was under age 18. Under immigration law:

· Fred and Betty are children of John and are therefore siblings through John only, but not through Mary.

· Betty and Steve, being the children of Mary and her first husband, are siblings through both of their blood parents.

· Fred is not Mary’s son and Steve is not John’s son, so (not having a common parent) they are not siblings at all.

If Fred is a citizen, he may file a petition for his sister Betty once he turns 21. He may not file a petition for Steve. Of course, if Betty immigrates to the U.S. and later naturalizes, she may then file a petition for her brother Steve.

(c) Adjudication .

(1) Evidence .

The documentation required to establish a sibling relationship varies and depends entirely on the parental combination through which the relationship occurs. Therefore, the supporting documents should be carefully checked to insure that the legal relationships existed to create the claimed relationship. The following sections of the regulations discuss the evidence necessary to support a petition for a brother or sister:

· 8 CFR 204.2(g)(2)(i) – Primary evidence if the siblings share a common mother or are the legitimate children of a common father;

· 8 CFR 204.2(g)(2)(ii) – Primary evidence if either or both siblings are legitimated ;

· 8 CFR 204.2(g)(2)(iii) – Primary evidence if either sibling is illegitimate; and

· 8 CFR 204.2(g)(2)(iv) – Primary evidence for stepsiblings .

(2) Fraud .

Eligibility for relative classification as a brother or sister depends upon the petitioner establishing that both petitioner and beneficiary were "children" of a common parent. This relationship is usually established through the submission of the birth certificates of the petitioner and beneficiary, as well as evidence of the relationship between their parents, where appropriate. Some indications that a birth certificate attempting to establish a sibling relationship may be fraudulent include:

· A delayed birth certificate for either the petitioner or the beneficiary might indicate an attempt to document a relationship that does not exist. (Or it might not, since there are also legitimate reasons for obtaining a delayed birth certificate.)

· Birth certificates from countries that are experiencing economic problems or political turmoil should be given special attention. The incentive to leave those countries is great and that fact sometimes causes petitioners who would otherwise obey the law to submit fraudulent documents in support of petitions on behalf of aliens from those countries.

· Some countries change governments frequently. One indication that a birth certificate may be fraudulent is an issuance date that is prior to or after the government of a country came into or went out of existence. Officers should be familiar enough with the political backgrounds of the countries so that they are able to detect this type of fraud.

While not as common as marriage fraud, sibling fraud is a potential problem. The same techniques used to detect and deter fraud in petitions filed for children (e.g., DNA tests) apply to petitions filed for parents. See Chapter 21.2 of this field manual.

(4) Final Decision .

(A) Approval .

If no adverse information is developed in a case at a USCIS office, the adjudicating officer shall approve the petition and:

· Forward it, with all attachments, to the National Visa Center (NVC) so that it may be processed and then forwarded to the embassy or consulate where the beneficiary will apply for an immigrant visa if the alien is outside the U.S. or is unable or unwilling to apply for adjustment of status; or

· Retain the approved petition in the beneficiary’s file (i.e., A-file is one is pre- existing or receipt/petition file if no A-file exists) and invite him or her to apply for adjustment of status if he or she is in the U.S., and is eligible to and intending to so apply.

The adjudicating officer will also send Form I-797, Notice of Approval of Relative Immigrant Visa petition, to the petitioner. If no adverse information is developed in a case at a consulate or the embassy, the consular officer will proceed with the processing of the visa application.

(B) Denial .

If the petitioner fails to establish eligibility for the benefit sought, the adjudicating officer shall deny the petition and notify the petitioner of the reasons therefor on Form I-292. The adjudicating officer shall also notify the petitioner of his or her right to appeal the adverse decision to the Board of Immigration Appeals on Form EOIR-29.

(C) Revocation Proceedings Based on Adverse Information .

If adverse information is developed subsequent to the approval of the petition, the petition will be returned to the approving office with a memorandum (and supporting evidence) setting forth the arguments for revocation. When the USCIS office of origin receives the petition with the adverse information, that office shall notify the petitioner of the derogatory information and of the Bureau’s intent to revoke the approval of the petition. The petitioner is to be given the choice of withdrawing the petition or having a determination of eligibility made in formal revocation proceedings. (See Chapter 20.3 of this field manual.) The USCIS office must notify the immigration or consular officer who developed the adverse information by memorandum of the final action.

If the petition is not withdrawn and the approval is not revoked, the petition and all attachments must be forwarded to the consulate or embassy where the beneficiary has applied or will apply for an immigrant visa. If the adverse information was developed at an overseas DHS office, a memorandum explaining the reasons for not revoking the petition’s approval must be attached to the approved petition.

(d) Precedent Decisions .

In addition to the following decisions, adjudicating officers should be aware of precedents pertaining to visa petitions for parents (see Chapter 21.8 of this field manual) and those pertaining to spousal visa petitions (see Chapter 21.3 of this field manual).

· Matter of Van Pamelen , 12 I. & N. Dec.11 (BIA, 1966) – Acknowledgment , but not legitimation, by natural father did not give petitioner standing to petition for sibling through the common father. ( Note: This case was decided before the amendments to section 101(b)(1)(E) of the Act allowing a parent-child relationship with the father if the child was born out of wedlock.)

· Matter of Mahal , 12 I. & N. Dec. 409 (BIA, 1967) – Citizen may petition for a sibling born to a common father and different mother where father was married to both mothers in a polygamous relationship if polygamy is legal in the country of the parents marriages and residence. ( Note: This case was decided before the amendments to section 101(b)(1)(E) of the Act allowing a parent-child relationship with the father if the child was born out of wedlock.)

· Matter of Wong-Setoo , 12 I. & N. Dec.484 (BIA, 1967) – Petition for a blood niece as a sibling is denied where petitioner’s parents “adopted” the beneficiary (their own granddaughter) in China, since adoption of a grandchild is illegal in China.

· Matter of Campbell , 13 I. & N. Dec. 552 (BIA, 1970) – This decision was overruled by Matter of Heung (see below).

· Matter of Butterfly , 14 I. & N. Dec. 460 (BIA, 1973) – Citizen may not petition for sibling adopted by petitioner’s mother where the adoption did not meet the provisions of section 101(b)(1) of the Act in that the beneficiary was over 18 at the time of the adoption.

· Matter of Kim , 14 I. & N. Dec. 561 (BIA, 1974) – Citizen cannot petition for sibling who is the child of the same father and the father’s concubine if sibling was never legitimated. (This case was specific to Korea and was overruled in part by Matter of Lee , 16 I. & N. Dec. 305 (BIA 1977).)

· Matter of Heung , 15 I. & N. Dec.145 (BIA, 1974) – Citizen may petition for stepsibling ( Matter of Campbell overruled).

· Matter of Garner , 15 I. & N. Dec. 215 (BIA, 1975) – While the term “sister” is not defined in the Act, petitioner must establish that he/she and sibling once qualified as the children of a common parent as provided in sections 101(b)(1) and (2) of the Act.

· Matter of Kwong , 15 I. & N. Dec. 312 (BIA, 1975) – Citizen cannot petition for sibling who was born to father’s concubine in Hong Kong if the concubine did not occupy the status of a tsip . Such status requires concubine to enter the household of the man and his principal wife and to accept position subordinate to the principal wife. which did not occur in this case.

· Matter of Mourillon, 18 I. & N. Dec. 122 (BIA 1981). In order to qualify as stepsiblings, either (1) the marriage which created the step-relationships must continue to exist, or (2) where parties to that marriage have legally separated or the marriage also terminated by death or divorce, a family relationship must continue to exist as a matter of fact between the "stepsiblings".

· Matter of Li , 20 I. & N. Dec. 700 (BIA, 1993) - An adopted child may not confer immigration benefits upon a natural parent without regard to whether the adopted child has been accorded or could be accorded immigration benefits by virtue of his or her adoptive status. An adopted child may not confer immigration benefits upon his or her natural sibling, because their common natural parent no longer has the status of parent of the adopted child for immigration purposes.