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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Interim Decision #2522
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,
(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,
(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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