Interim Decision #2741 

MATTER OF SALAZAR 

In Exclusion Proceedings 

A-30326095 

Decided by Board November 9, 1979 

(1) A lawful permanent resident who departed the United States for five months and 

traveled through various countries and visited relatives, has meaningfully interrupted 

his permanent residence and can be properly placed in exclusion proceedings. 

(2) If, in the course of an exclusion hearing, a possible ground of excludability develops, 

it is proper for the ground to be ruled upon by the immigration judge, as long as the 

applicant is informed of the issues confronting him at some point in the hearing, and 

is given a reasonable opportunity to meet them. 

(a) Where the applicant had a colorable claim to lawful permanent resident status at 

the time he attempted to enter, the Service had the burden of proof to establish that he 

should be deprived of this status. Matter of Kane, 15 1&N Dec. 258 (BIA 1975). 

(4) While written notice of revocation of a visa petition to a beneficiary is not necessary 

under Section 205 of the Immigration and Nationality Act, 8 U.S.C. 1155, there mustbe 

proof of actual notice for the requirements of the section to be met. 

(5) In a case where there was some evidence that the applicant, a returning lawful 

permanent resident, knew that a visa petition filed by his wife had been withdrawn, 

the Service produced a cable to the Commissioner of the Service for relay to the 

Consulate in Peru. However, there was no proof that the consul notified him of the 

revocation and a visa was issued by the consul. Held there was insufficient evidence to 

establish that the applicant had actual notice of the revocation to meet the requirements of Section 205 of the Act, and that he was properly admitted in 1176, and 

exclusion proceedings were terminated. 

EXCLUDABLE 

Order: Act of 1952—See 215(a)(20) [8 D.S.C. 1182(a)(20)]—No valid visa 

ON BEHALF OF APPLICANT: David A. Kattan, Esquire 

419 Gravier Street, 

New Orleans, Louisiana 70130 

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members 

In a decision dated November 14, 1978, an immigration judge found 

the applicant excludable as charged and ordered him excluded. The 

applicant appeals. The appeal will be sustained. 

The applicant is a 29-year-old native and citizen of Peru. On May 20, 

1975, a visa petition on his behalf was approved by the District 
Interim Decision #2741 

Director. Shortly afterward, his wife withdrew the visa petition, and in 

a letter dated May 28, 1975, she was given notice of the automatic 

revocation of the visa petition by the District Director. A cable was 

sent that same day to the Commissioner of the Service in Washington, 

D.C., informing him of the revocation so that the United States Consulate in Lima, Peru, could in turn be informed of the revocation. The 

visa petition shows that the petition was received by the Consulate on 

May 30, 1975. In the meantime, although the evidence is somewhat 

unclear, it would appear that the applicant had a conversation with his 

wife touching on the withdrawal of the visa petition, but not on the 

revocation of the visa petition. In November 1975, the applicant left the 

United States for Peru to receive his visa. The visa was issued to him 

on January 19, 1976. He was admitted as a lawful permanent resident 

on April 7, 1976, on the basis of that visa. In December 1977, he was 

divorced from his wife. He left the United States in March 1978. On 

August 10, 1978, when he attempted to reenter the United States, he 

was not admitted because the immigration inspector found that he was 

possibly excludable under section 212(a)(20) of the Immigration and 

Nationality Act, 8 U.S.C. 1182(a)(20), and he was referred to an immigration judge for an exclusion hearing. The immigration judge 

found that he was excludable under both section 212(a)(20) and (a)(19) 

of the Act, the first because he was not in possession of a valid 

immigrant visa when he attempted to enter in April 1976, and the 

second because he had willfully misrepresented the fact that he was 

the beneficiary of an approved visa petition. 

Before we consider the points raised by the respondent on appeal, it 

is necessary to resolve an initial question of the propriety of the 

exclusion proceedings in this case. The applicant as noted, was admitted as a lawful permanent resident in 1976, and remained in the United 

States until March 1978, when he traveled to several countries in 

Central and South America_ He remained outside the United States for 

about 5 months, apparently visiting his family and sightseeing in 

various places. Given the length of time he remained outside the 

United States, and his activities during that time, we have concluded 

that his departure was meaningfully interruptive of his permanent 

residence. Exclusion proceedings were, therefore, properly instituted 

against the respondent. Rosenberg v. Fleuti, 374 U.S. 449, 462 (1963); 

but see, Maldonado-Sandoval v. INS, 518 F.2d 278 (9 Cir. 1975). We can, 

therefore, go on to the issues presented by the applicant. 

On appeal, the applicant claims that he was found excludable under 

section 212(a)(19) of the Act although the Notice to Applicant for 

Admission Detained for Hearing Before Special Inquiry Officer (Form 

1-122) did not contain this charge. He also asserts that the finding of 

willful misrepresentation under section 212(a)(19) of the Act was 

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incorrect because he was in fact married when he obtained his visa. 

Finally, he contends that he received no notice of the revocation of the 

visa petition pursuant to section 205 of the Act. 

We do not agree that it was necessary for the Notice (Form 1-122) to 

contain a charge under section 212(a)(19) of the Act for it to be 

considered by the immigration judge. If, in the course of an exclusion 

hearing, a possible ground of excludability develops, it is proper for the 

ground to be ruled upon by the immigration judge, as long as the 

applicant is informed of the issues confronting him at some point in 

the hearing, and he is given a reasonable opportunity to meet them. 

See Matter of Healy and Goodchild, Interim Decision 2716 (BIA 1979). 

There is no provision in the Act or in 8 C.F.R. setting forth requirements such as those governing an Order to Show Cause in deportation 

proceedings. This point of appeal has, therefore, not been 

substantiated. 

Before the next two points of appeal are considered, however, it is 

necessary to discuss the burden of proof imposed in this case, as it 

directly affects the outcome of the proceedings. In his decision, the 

immigration judge states that the burden of proof was upon the 

applicant to establish that he was not subject to exclusion, and that he 

had failed to carry this burden. Since the applicant had a colorable 

claim to lawful permanent resident status at the time he attempted to 

enter, the burden in this case was upon the Service to show that he 

should be deprived of this status. Matter of Karte,15 I&N Dec. 258 (BIA 

1975). Given this burden, it was incumbent upon the Service in the first 

instance to show that the applicant had received notice of the revocation of the visa petition communicated through the Secretary of State 

to him as the beneficiary before he commenced his journey to the 

United States, or that he had actual notice of the revocation through 

other means, and in the second instance to show that he had misrepresented a material fact. 

The evidence in this regard is unclear. The applicant testified that he 

was never asked any questions about the visa (Tr. p. 29). He also 

testified that when he left the United States in 1975 to go to Peru, he 

was separated from his wife, but that she had led him to believe that 

she would live with him when he returned. He also testified that she 

had not told him that she had withdrawn the visa petition, when he 

communicated with her while he was in Peru (Tr. pp. 28-31). In his 

statement to the Service investigator, dated August 31, 1978, he said 

that he knew that his wife had withdrawn the visa petition, but that he 

did not know the date. In addition, he also stated that he was asked no 

questions by the consul about a possible separation and that he did tell 

the consul that he was coming to the United States to join his wife, 

which was his actual intent. He also stated that a Service official told 

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him on June 4, 1975, that his wife had withdrawn the visa petition, that 

he did not know that the petition had been withdrawn before he left 

the United States in. November 1975, and that the same Service official 

who had informed him of the withdrawal of the petition also told him 

to return to Peru and get the visa (Ex. 4). Given this state of affairs, 

and the apparent uncertainty of his marriage at that time, it cannot be 

said that the Service has carried its burden in establishing that the 

applicant was in fact aware of what had transpired concerning his visa 

petition, and that his failure to volunteer information on the subject to 

the consul constituted a willful misrepresentation of a material fact. 

We also do not find that the Service has established that notice of the 

revocation of the approval of the visa petition was communicated to 

the applicant, or that he had actual notice of the revocation as set forth 

in section 205 of the Act which states: 

Sec. 205. The Attorney General may, at any time, fOr what he deems to be good and 

sufficient cause, revoke the approval of any petition approved by him under section 

204. Such revocation shall be effective as of the date of approval of any such petition. 

In no case, however, shall such revocation have e ffect unless there is mailed to the 

petitioner's last known address a notice of the revocation end unless notice of the 

revocation is communicated through the Secretary of State to the beneficiary of the 

petition before such beneficiary commences his journey to the United States. If notice 

of revocation is not so given, and the beneficiary applies for admission to the United 

States, his admissibility shall be determined in the manner provided for by sections 

235 and 236. (Emphasis added). 

The evidence relied on by the immigration judge is that contained in 

the applicant's testimony at the hearing and in the statement by him 

to the Service investigator taken on August 31, 1978 (Ex. 4). In that 

statement, as noted, the applicant relates his belief that his wife had 

withdrawn the visa petition, but that when he left the United States in 

November 1975, to go to Peru he did not know that the petition had 

been withdrawn. His testimony at the hearing was that he communicated with his wife on four or five occasions while he was in Peru 

waiting for his visa and she did not tell him that she had withdrawn 

the visa petition. He also testified that he did not receive any written 

notification from the Service or the State Department concerning 

revocation of the visa petition (Tr. pp. 27 -25). The testimony and the 

statement contain the major evidence on the question of whether or 

not the applicant was notified of the revocation of the visa petition. 

The Service has provided a copy of a cable addressed to the Commissioner of the Service for relay to the United States Consulate in Peru. 

But this in itself is not persuasive evidence that if received the cable 

was acted upon. In fact, quite the opposite conclusion could be drawn 

from the fact, that the visa was issued. Consequently, while there is a 

substantial amount of evidence showing that the applicant was aware 

that his wife may have with drawn the visa petition, awareness of this 

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fact cannot be equated with actual notice of the revocation on the part 

of the applicant, particularly in light of the testimony concerning the 

apparent uncertainty of the marriage. So although we do not agree 

with the applicant that written notice of revocation to a beneficiary 

outside the United States is necessary under the terms of section 205 of 

the Act, there must be proof of actual notice for the requirements of 

the provision to have been met. In this case, there is only evidence 

establishing that the applicant was aware that the visa petition may 

have been withdrawn. This is not sufficient to establish that actual 

notice of revocation was received by the applicant before he left Peru 

for the United States. Since this is true, the revocation had no effect, 

the applicant was appropriately admitted as a lawful permanent resident in 1976 and he is not excludable under section 212(aX20) of the 

Act. The appeal will accordingly be sustained. 

ORDER, The appeal is sustained, the exclusion proceedings are 

terminated and the applicant is admitted into the United States. 

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