SALAZAR

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  permanent resident, knew that a visa petition filed by his wife had been withdrawn,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

 (1963);
but see, Maldonado-Sandoval v. INS, 

 (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,

 (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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