Interim Decision #2742 

MATTER OF GIANNOUTSOS 

In Rescission Proceedings 

A-13288520 

Decided by Board November 9, 1979 

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

numerical classification accorded him in his visa, it is not necessary that the Notice to 

Rescind allege ineligibility for the numerical classifications since this is a matter of 

affirmative defense. Matter of Suleiman,15 I&N Dec.784 (BIA 1974), overruled; Matter 

of Raqueno, Interim Decision 2713 (BIA 1979), followed. 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Stanley H. Wallenstein, Esquire Daniel Aleiser 

Schiano & Wallenstein Trial Attorney 

80 Wall Street 

New York, New York 10005 

By: Milhollan, Chairman; Maniatis, Maguire, and Farb, Board Members 

In a decision dated February 13, 1973, the immigration judge 

rescinded the now 52-year-old respondent's permanent resident status 

granted him on August 25, 1964, based on an approved visa petition as 

the nonquota spouse of a United States citizen. The immigration judge 

held that he was not entitled to nonquota status. Thereupon, the 

respondent, through previous counsel, appealed from that decision. 

Subsequently, on October 24, 1974, concurring in the immigration 

judge's conclusion that the Service had established the essential facts 

contained in the notice of rescission and that the respondent was 

ineligible for adjustment of status, inasmuch as an immigrant visa had 

not been readily available to him at the time he was granted his 

permanent residence status, we dismissed the respondent's appeal 

from that rescission. 

Now before us is the respondent's motion, submitted through new 

counsel on January 31, 1978, claiming (while relying on Matter of 

Buleiman,15 I&N Dec. 784 (BIA 1974)), that, inasmuch as the notice to 

rescind, dated August 18, 1968, contained no additional allegation that 

the respondent was ineligible for adjustment of status under section 

245 of the Immigration and Nationality Act, 8 U.S.C. 1255, under either 

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a preference quota or the nonpreference quota, the proceedings should 

be reopened and the record remanded. In its brief, dated October 20, 

1978, the Service expresses its opposition to the motion to reopen, 

claiming, inter alia, that the respondent (who is now in deportation 

proceedings) has not alleged in his motion that he was the beneficiary 

of an approved visa petition or was otherwise eligible for a preference 

or nonpreference quota under section 203(a) of the Act, 8 U.S.C. 

1153(a). 

In Matter of Suleiman, supra, we held 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 classifications. We relied on the case of 

United States v. Rossi, 299 F.2d 650 (9 Cir. 1962), for that proposition. 

The basis for that denaturalization proceeding was that Rossi (an 

Italian citizen who had personated his brother, a Chilean citizen) had 

not been lawfully admitted for permanent residence, a prerequisite for 

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. 

However, in reexamining this issue, we take note that the evidentiary and legal situation in rescission proceedings is unlike that in 

denaturalization proceedings. In rescission proceedings we may take 

official notice of the monthly Department of State Visa Bulletins 

announcing visa availability under numerical limitations in a stated 

month. Fed. Rules of Evid. 803(a)(8); Matter of DeVera,16 I&N Dee. 266 

(BIA 1977). Therefore, the respondent in rescission proceedings, who 

claims a visa was available to him under a classification (under section 

203(a) of the Act or by virtue of a priority date) other than that 

accorded him, should allege that claim as an affirmative defense. 8 

C.F.R. 246.3. Normally, the issue will be decided forthwith by reference 

to the visa bulletin. Additionally, in rescission proceedings under 

section 246 of the Act, the immigration judge is nut bound by judicial 

rules of evidence. 8 C.F.R. 246.3; Matter of DeVera, supra. Therefore, 

the holding in Rossi, supra, in a denaturalization proceeding, is not 

applicable in a rescission proceeding. Hence, the overruling of 

Suleiman, supra, is the necessary consequence of our decision in this 

case.' 

' In Matter of Raqueno, Interim Decision 2713 (BIA 1979), a deportation proceeding, 

we did not read our holding in Matter of Suleiman, supra, as having any applicability in 

deportation proceedings. Where that respondent was charged under section 241(a)(1) of 

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Under the pertinent provisions of 8 C.F.R. 3.8, motions to reopen 

shall state the new facts to be proved at the reopened hearing and shall 

be supported by affidavits or other evidentiary material. We conclude 

that the respondent, although his motion is supported by an affidavit, 

inasmuch as he has not stated new facts to be proved at the reopened 

hearing, nor averred that he was otherwise eligible for a preference or 

nonpreference classification under section 203(a) of the Act, has not 

presented a new motion sufficient under 8 C.F.R. 3.8 to require reopening of these proceedings. Therefore, the motion to reopen will be 

denied. 

ORDER: The motion is denied. 

the Act as an alien who entered without a valid document in violation of section 

212(a)(20) of the Act, we held that the Order to Show Cause was sufficient to inform that 

respondent of the charge with sufficient precision to allow her to properly defend herself. 

Hence, we found no need under the statute or regulations to contain in the Order to Show 

Cause allegations which exclude the possibility that a visa might have hen available to 

that respondent in a status other than that specified in the visa. An allegation of 

ineligibility for another numerical classification would be superfluous to that charge in 

the Order to Show Cause. 

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