MATTER OF GARNER In Visa Petition Proceedings A-20253948 Decided by Board March 20, 1975 (1) The visa petition to classify the beneficiary as a preference immigrant under section 203(a)(5) of the Immigration and Nationality Act, as the sister of the petitioner was denied by the district director because beneficiary did not meet the definition of “child” set focth in section 101(b)(1)(C) of the Act. While beneficiary and petitioner were the children of a common parent (the father), beneficiary had not been legitimated prior to her eighteenth birthday. (2) While the term "sister" is not defined in the Act, to support a claimed brother-sister relationship necessary for qualification under section 203(a)(5), petitioner and beneficiary must establish that they once qualified as children of a common parent as provided in sec. 101(b)(1) and (2) of the Act. (3) Matter of C—, 6 I. & N. Dec. 617 (BIA 1955) and Matter of D—M—, 7 I. & N. Dec. 441 (BIA 1957) are overruled insofar as they hold that the requirements of section 101(b)(1) of the Act are not applicable to “brothers” and “sisters" under section 203(a)(5) of the Act. ON BEHALF OF PETITIONER: Essel W. Baily, Jr., Esquire Richard M. Wood & Associates The United States citizen petitioner applied for preference classification for the beneficiary as her legitimated half sister under section 203(a)(5) of the Immigration and Nationality Act. The district director denied the petition. The petitioner has appealed from that denial. The appeal will be dismissed. The petitioner is a legitimate child of her parents. The beneficiary was born out of wedlock to the petitioner's father and a different mother. It appears from the record that the beneficiary was legitimated under the laws of Great Britain, the place of her father's domicile, by the marriage of her parents. However, that marriage took place when the beneficiary was 23 years of age. The district director concluded that the beneficiary could not qualify as the petitioner's "sister" through their common father because the beneficiary was illegitimate at birth and had not been legitimated in compliance with the 18-year age requirement of section 101(b)(1)(C) of the Act. Counsel maintains that the requirements of section 101(b)(1)(C) are inapplicable to an alien whose classification as a "sister" is sought under section 203(a)(5) of the Act. The term "sister" is not defined in the Act. However, the term "child" is defined in section 101(b)(1) of the Act. Section 101(b)(1)(C) defines the term "child" as including "a child legitimated 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." 2 1 The definition of "child" contained in section 101(b)(1) has been applied in determining whether aliens are eligible for preference classification under section 203(a) as "sons or daughters," or "brothers or sisters." It is also applicable in determining whether an individual is a "parent" under section 101(b)(2) of the Act. The application of the section 101(b)(1) definition of "child" in determining whether an individual qualifies as a "son" or a "daughter" under section 203(a) has been approved in Nazareno v. Attorney General of United States, 336 F. Supp. 1219, affirmed 512 F.2d (D.C. cir. 1975), cert. den. sub nom Nazareno et al v. Levi, Attorney General, 423 U.S. 832 (1975). In Matter of Heung, 15 I. & N. Dec. 145 (BIA November 25, 1974), we held that in order to support a claimed "brother" or "sister" relationship under section 203(a)(5), a 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. In Matter of Kim, 14 I. & N. Dec. 561 (BIA 1974), we specifically dealt with the issue of whether a child born out of wedlock who was over the age of 18 years when legitimated by his father could qualify for ' Legitimated sons or daughters: Matter of Coker, 14 I. & N. Dec. 521 (BIA 1974); Matter of Julianus, 14 I. & N. Dec. 435 (BIA 1973); Matter of Anastasiadis, 12 I. & N. Dec. 99 (BIA 1967); Matter of Mandewirth, 12 I. & N. Dec. 199 (BIA 1967); Matter of Lauer, 12 I. & N. Dec. 210 (BIA 1967). Adopted sons or daughters: Matter of Ng, 14 I. & N. Dec. 135 (BIA 1972); Matter of Caramanzana, 12 I. & N. Dec. 47 (BIA 1967); Matter of Yue, 12 I. & N. Dec. 747 (BIA 1968). Stepsons or stepdaughters: Matter of C—, 8 I. & N. Dec. 592 (BIA 1960); Matter of Pagnerre, 13 I. & N. Dec. 688 (BIA 1971). 2 Legitimated brothers or sisters: Matter of Kim, 14 I. & N. Dec. 561 (BIA 1974); Matter of Van Pamelen, 12 I. & N. Dec. 11 (BIA 1966); Matter of K—W—S—, 9 I. & N. Dec. 396 (BIA 1958, 1961; A.G. 1961). Adopted brothers and sisters: Matter of Butterly, 14 I. & N. Dec. 460 (BIA 1973); Matter of Boghdadi, 12 I. & N. Dec. 666 (BIA 1968); Matter of Fong, 10 I. & N. Dec. 497 (BIA 1964). Stepbrothers or stepsisters: Matter of Heung, 15 I. & N. Dec. 145 (BIA November 25, 1974), overruling Matter of Campbell, 13 I. & N. Dec. 552 (BIA 1970). 3 Matter of Polidoro, 12 I. & N. Dec. 353 (BIA 1967); Matter of Schaad, 10 I. & N. Dec. 555 (BIA 1964). preference classification under section 203(a)(5) as a "brother" through the paternal relationship. We applied the section 101(b)(1)(C) definition of a legitimated "child" and held that the beneficiary was not entitled to preference classification. We are aware of several cases which indicate that the section 101(b)(1) definition of "child" is not applicable in determining whether a beneficiary qualifies as a "brother" or a "sister" under section 203(a)(5) (formerly section 203(a)(4)). Matter of C-, 6 I. & N. Dec. 617 (BIA 1955); Matter of D—M—, 7 I. & N. Dec. 441 (BIA 1957). Over the years, we have receded from the view expressed in these cases, and we now specifically overrule them insofar as they hold that the requirements set forth in section 101(b)(1) are not applicable to "brothers" or "sisters" under section 203(a)(5). Finally, counsel argues that the beneficiary can qualify as the petitioner's stepsister by virtue of the marriage between the petitioner's father and the beneficiary's mother. It is clear, however, that for immigration purposes no steprelationship between the petitioner and the beneficiary was created by the marriage, because the beneficiary was beyond the 18-year age requirement of section 101(b)(1)(B) of the Act. Matter of Heung, 15 I. & N. Dec. 145 (BIA November 25, 1974); Matter of Kim, supra. The district director's decision was correct. The appeal will be dismissed. ORDER: The appeal is dismissed. MATTER OF ASSAN In Visa Petition Proceedings A-20121202 Decided by Board March 21, 1975 Where the beneficiary of a petition under section 201(b) of the Immigration and Nationality Act and his former spouse were apparently both natives and citizens of Ecuador, the fact that neither the beneficiary nor his former Ecuadorian spouse appeared personally at their divorce proceedings in Ecuador does not preclude it from being recognized as valid in New York, the place of beneficiary's subsequent marriage to petitioner. The record is remanded to the District Director in order that the petitioner may have the opportunity to establish the validity of the Ecuadorian divorce. ON BEHALF OF PETITIONER: Bertrand D. Gerber, Esquire 119 West 57th Street The petitioner applied for immediate relative classification for the beneficiary under section 201(b) of the Immigration and Nationality Act. In a decision dated January 23, 1974, the district director denied the petition. The petitioner has appealed from that decision. The appeal will be sustained, and the record will be remanded to the district director. The beneficiary, a native and citizen of Ecuador, was married previously in Ecuador, evidently to another native and citizen of that country. The beneficiary allegedly was divorced from his first wife in Ecuador in 1972. The translation of that divorce decree contained in the record indicates that neither the beneficiary nor his first wife appeared personally in the Ecuadorian action. The district director found that the beneficiary's Ecuadorian divorce was not based on domicile. He concluded that under Williams v. North Carolina, 325 U.S. 226 (1945), a foreign divorce decree not based on domicile would not be recognized in New York, the place of celebration of the beneficiary's subsequent marriage to the petitioner. We disagree with the district director's reasoning. Williams v. North Carolina, supra, dealt with the full faith and credit clause of the United States Constitution. Since the Constitution does not apply to judgments rendered by courts of foreign countries, the question of recognition is solely one of comity. New York courts will recognize divorce decrees rendered in foreign countries when such recognition does not offend any public policy of New York. Rosenstiel v. Rosenstiel, 16 N. Y.2d 64, 209 N.E.2d 709, 262 N.Y.S.2d 86 (1965), cert. denied, 384 U.S. 971 (1966); Rosenbaum v. Rosenbaum, 309 N. Y. 371, 130 N.E.2d 902 (1955); Matter of Moncayo, 14 I. & N. Dec. 472 (BIA 1973). In Rosenstiel v. Rosenstiel, supra, the court was faced with a situation involving a Mexican divorce obtained by parties who were not domiciled in Mexico at the time of the divorce. The court held that where one party was physically present within the jurisdiction of the Mexician court, and the other party appeared by attorney and submitted to the jurisdiction of the Mexican court, the Mexican divorce decree was entitled to recognition in New York. See also Ramm v. Ramm, 34 App. Div. 2d 667, 310 N.Y.S.2d 111 (1970), aff'd, 28 N.Y.2d 892, 271 N.E.2d 558, 322 N.Y.S.2d 726 (1971). A Dominican Republic divorce decree allegedly dissolving the marriage of two Dominican citizens who were married in the Dominican consulate in New York was at issue in De Pena v. De Pena, 31 App. Div. 2d 415, 298 N.Y.S.2d 188 (1969). Neither party appeared in person in the Dominican action, and process was not personally served on the wife. The court refused to recognize the divorce. In doing so, it pointed out that the wife was a domiciliary of New York, and the husband's only existing contact with the Dominican Republic was his continued Dominican citizenship. The court distinguished Rosenstiel on the ground that in De Pena there was no physical presence by either party and the Dominican court had not acquired jurisdiction over the wife. In Matter of Moncayo, supra, we had occasion to interpret the policy statements made by the New York courts in Rosenstiel and De Pena. We held that New York would not recognize an Ecuadorian divorce obtained by an Ecuadorian citizen residing in the United States, where neither party appeared in person before the Ecuadorian court and the beneficiary's first wife was not personally served and did not submit to the jurisdiction of the Ecuadorian court. See also Matter of Pearson, 13 I. & N. Dec. 152 (BIA 1969). The foregoing cases indicate that where jurisdiction of the foreign court is not based on domicile, New York policy generally requires some physical presence on the part of at least one party within the jurisdiction rendering the divorce, combined with some type of appearance or submission to jurisdiction by the other party. In the past we have concluded that there are certain circumstances in which New York would recognize a foreign divorce even where neither party was physically present within the jurisdiction of the foreign court granting the divorce. Such recognition has been extended where the parties involved were nationals of the foreign country rendering the divorce, were married in |