Interim Decidon #2522 

MATTER OF SULEIMAN 

In Section 246 Proceedings 

A-18287193 

Decided by Board January 4, 1974 

(1) Respondent was granted permanent resident status on January 28, 1970, as the 

immediate reh.tive spouse of a United States citizen, and as such was exempt from the 

numerical limitations of the Immigration and Nationality Act. After the marriage ended 

in divorce on August 19, 1970, the Service brought rescission proceedings on the ground 

the marriage was a sham and the respondent was not entitled to the classification he had 

been accorded 

(2) The burden 3f proof in rescission proceedings is dear, convincing and unequivocal 

evidence. Where the basis for rescission proceedings is that the alien was not entitled to 

the numerical classification accorded, it is essential that the Notice of Intention to 

Rescind allege ineligibility for other numerical classifications. In this case the record 

contains no evidence that a visa subject to the numerical limitations would not have 

been available to respondent, nor is that alleged. Proceeding remanded. 

ON BEHALF OF RESPONDENT: Manuel Guzman Ortiz, Esquire 

P. 0. Box 9133 

Santurce, Puerto Rico 00908 

This is an appeal from an order of rescission entered by the immigration judge. The case will be remanded. 

The record relates to a married male alien, 23 years of age, a native 

and citizen of Jordan, whose status was adjusted to that of an alien 

lawfully admitted for permanent residence on January 28, 1970. He was 

granted permanent residence as the spouse of a citizen of the United 

States. As such he was exempt from the numerical limitations. His 

marriage to the United States citizen terminated in divorce on August 

19, 1970. The Service thereupon concluded that his marriage had been a 

sham and that the respondent was not entitled to the classification he 

was accorded. Rescission proceedings were commenced. 

The Notice of Intention to Rescind alleged that no bona fide marriage 

relation ever existed between the respondent and his United States 

citizen wife and that "willful failure to disclose this material fact served 

to cut off a pertinent line of inquiry which, had it been known, would 

certainly have prevented approval of your application for permanent 

residence." However, there was no allegation that the nonpreference 

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category was unavailable at that time, nor was it alleged that the 

respondent did not possess a labor certification (absent which, he would 

have been inadmissible in the nonpreference category). 

We hold that where the basis for rescission proceedings is that the 

alien was not entitled to the numerical classification accorded, it is 

essential that the notice allege ineligibility for other numerical classification. We rely on the case of United States v. Rossi, 299 F.2d 650 (C.A. 

9, 1962), for this proposition. In that case the court held that the 

Government had not sustained its burden of proof, in a denaturalization 

case, in which there was no suggestion in the record that Rossi was 

ineligible for a quota visa, or otherwise excludable. The basis for the 

denaturalization proceeding was that Rossi had not been lawfully admitted for permanent residence, a prerequisite fcir naturalization, because 

he entered with an immigrant visa, in nonquota status, to which he was 

not entitled. He was actually subject to quota limitations. The court 

held that the Service had not borne its burden of establishing that the 

quota to which Rossi was chargeable was oversubscribed, and that 

therefore the Service had not established that Rossi would have been 

ineligible for a quota visa. The burden imposed on the Service in that 

denaturalization proceeding, clear and convincing evidence, was no 

greater than the burden in a rescission proceeding, where the burden is 

clear, convincing and unequivocal evidence, Waziri v. INS, 392 F.2d 55 

(C.A. 9, 1908); Matter of Viloynava-Gonzalez, 13 I. & N_ Dec. 399 (BIA 

1969). 

In the case before us the record contains no evidence that a visa 

subject to the numerical limitations would not have been available to the 

respondent, nor is there even an allegation to that effect. Accordingly, 

we shall remand the case to enable the proceedings to be reopened and 

conducted in accordance with this decision. 

ORDER: This case is remanded to the immigration judge for proceedings consistent with the above decision. 

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