P-N

                            MATTER OF P N

                       In EXCLUSION Proceedings
                                   A-6245275
                        Decided by Board October 7, 1959

17 ,vocation of visa—Not invalidated by lack of notice to alien or failure to effect
   physical cancellation—Evidence----State Department certification admissible.
(1) Revocation of visa by Secretary of State under authority of section 221(1)
   of the 1952 act, timely notice of which is communicated to the Attorney
   General, is not inralirlited by lack of notice to alien or failure to effect
   physical cancellation of the visa prior to his arrival in the United States.
(2) Certification by Department of State attesting to revocation of nonimmigrant visa prior to alien's app)Motion for admission to United States, despite objections as hearsay, is ach 'ssible in evidence in immigration pro-
 ' ceedings.
EXCLUDABLE: Act of 1952—Section 212 (a ) (26 ) t8 U.S.C. 118`... (a ) (26) 1—Nonimmigrant, no valid nonimmigrant visa.
                             BEFORE THE BOARD

   Discussion: The case comes forward on appeal from the order
of the special inquiry officer dated May 27, 1959, finding the applicant inadmissible on the ground stated above and directing that he
be excluded and deported from the United States.
   The facts of the case are fully set forth in the decision of the
special inquiry officer. The record relates to a native and citizer
of Cuba, 41 years old, male, who arrived at the port of Miami
Florida, on .January 24, 1959, and applied for admission to th,
United States as a temporary visitor for pleasure under the provi
sions of section 101(a) (15) (B) of the Immigration and Nationalit
Act of 1052. He presented a valid Cuban passport which containe
a nonimmigrant visa stamp (classification B-2) showing that
nonimmigrant visa was issued to him by an American Vice Cons ,
at Havana, Cuba, on October 4, 1957, valid for multiple applicatiu
for admission for 4 years from date. The applicant had been prel
ously admitted to the United States on August 6, 1946, for perm
nent residence but renounced his residence in the United Stal
about 1950 in a letter addressed to the Consul of the United Sta
at Havana. He makes no claim of being a permanent resident I
seeks admission solely as a nonimmigrant temporary visitor.
                                       456
     The record contains a document by the Acting Secretary of State
  authenticating a certification by the Deputy Director, Visa Office,
  Department of State, Washington, D.C., to the effect that on January 21, 1959, the American Consul at Kingston, Jamaica, British
  West Indies, was notified by telephone that the nonimmigrant visa
  previously issued to the appellant on October 4, 1957, by the American Consul at Havana, Cuba, had been invalidated by the Department of State in Washington, D.C., in accordance with the authority
  contained in section 221(i) of the Immigration and Nationality Act.
  It is further set forth that the said American Consul was directed
  to notify the appellant of the visa invalidation and, in addition,
  to notify appropriate transportation lines of the invalidation of the
  said visa, and further, to pursue such steps as necessary to effect
  physical cancellation of the visa. It was also indicated that notice
  of the visa invalidation was communicated to the Immigration and
  Naturalization Service of the Department of Justice. The communication enntaing informatinn that the American Embassy at Ciudad
 Trujillo had notified the applicant telephonically that his visa was
 invalidated.
     The appellant has denied that he received any notification of the
 invalidation of his nonimmigrant visa and it is conceded that there
 was no physical cancellation of the visa on January 24, 1959, at the
 time he applied for admission. The visa now bears a handwritten
 notice of cancellation placed thereon on January 25, 1959, by an
 immigration officer at San Juan, Puerto Rico. After being informed
 on January 24, 1959, that his nonimmigrant visa had been invalidated by the Department of State, the appellant elected to withdraw his application for admission and to return to the Dominican
 Republic. He returned by way of San Juan, Puerto Rico, where
 the cancellation stamp was placed upon his visa by the aforemen-
                                       -



 tioned immigration officer. Subsequently he instituted a civil action
 in the United States District Court for the Southern District of
 Florida and the court directed that the applicant be returned to the
 United States for the purpose of testifying in the immigration adm inistrative proceedings to determine his admissibility. His return
to the United States on March 1, 1959, was pursuant to such court
order.
    The main point at issue is whether the nonimmigrant visa wa&
properly invalidated before the appellant applied for admission to
the -United States on January 24, 1959.        There is, of course, no
doubt that subsequent thereto, to wit, on January 25, 1959, the visa
was physically cancelled and the appellant had notice of such
physical cancellation. It is also apparent from the testimony of
record that the appellant's visa was not physically cancelled upon
the date of his application for admission on January 24, 1959.
                                 457
 There is conflicting evidence as to whether he waz aware that it had
 been invalidated by the Department of State prior to such date.
   The applicant for admission has the burden of establishing his
 eligibility for admission to the United States under the immigration
 laws. The appellant has done so by submitting the required documents and no qualitative grounds of inadmissibility have been
 urged. However, the record does contain the certification from the
 Department of State which establishes that the nonimmigrant visa
 had been invalidated prior to the appellant's application for admission to the United States by the Department of State at Washington, D.C. This document, despite objections as hearsay, is admissible as a properly authenticated copy by an official of the Depart-
   ,nt of State which must be accorded a presumption of regularity.
 In addition, this communication, as well as the communications
 from the Service, meets the test of admissibility in immigration
 proceedings, namely, that it is probative evidence of the fact of
 invalidation of the nc-Prrunigrant vim prior to the date of appellant's application for admission.
   The communication front the Department of State sets forth that
 revocation was pursuant to section 221(i) of the Immigration and
 Nationality Act. This subparagraph (i) provides that after issuance of a visa or other documentation to any alien the consular
 officer or the Secretary of State may at any tiniL, in his discretion,
 revoke such visa or other documentation; and further provides that
notice of such revocation shall be communicated to the Attorney
General, and such revocation shall invalidate the visa or other documentation from the date of issuance. It is to be noted that this
subparagraph contains no provision for notification to the alien of
the invalidation or revocation of the visa.
   However, counsel contends that the revocation is not valid because
it was not done pursuant to the State Department regulations
22 CFR 41.18, which deal with revocation and invalidation of non
immigrant visas and other nonimmigrant documentation. It i
believed, however, that the provisions of 22 CFR 41.18 are nc
applicable to the instant case. Section 221(i) provides that aft€
issuance of the visa the consular officer or the Secretary of Stagy
may at any time in his discretion revoke such visa and provides f(
notice to the Attorney General and that such revocation shall i
validate the visa from the date of issuance.
   The regulations referred to by counsel, 22 CFR 4-1.18, deal wi
revocation and invalidation by a consular officer. It is noted tl
the proviso to subparagraph (d) of 22 CFR 41.18 states that t
consular office which issued the visa shall be notified of the rev&
tion or the invalidation if such action was effected by any otl
consular office or by the Department of State.
                                 458
  It, therefore, appears that by statute and by regulation authority
is granted to the Department of State, as well as to consular officers,
to invalidate or revoke a visa prior to the arrival of the alien in
the United States. The regulations cited, 22 CFR 41.18, provide
the procedure for consular revocation, but even those regulations
provide in subparagraph (c) that notification and opportunity to
show cause why the visa should not be revoked shall be given, if
practicable. The failure to accomplish a physical revocation of the
visa does not affect the validity of any action taken to revoke or
invalidate a visa or other documentation (22 CFR 41.18(c)).
   In summary, we conclude that the record establishes that the
nonimmigrant visa in possession of the applicant was in fact invalidated before he arrived in the United States. There is no
requirement in the law that the applicant need be notified of such
revocation or be given a hearing where the Department revokes a
visa, and even the regulations governing consular revocation merely
provide that notice and opportunity to he heard shall be given only
if practicable. It, therefore, appears that Congress has seen fit not
to provide for a hearing procedure in cases of invalidation of nonimmigrant visas and has empowered the Secretary of State to revoke
in his discretion. The invalidation was, pursuant to the statute,
communicated to the Attorney General through his duly designated
representative. It is concluded that the evidence establishes that
the invalidation was effective prior to the arrival of the alien in
the United States and that he was not in possession of a valid nonimmigrant visa at the time he applied for admission. The appeal
will be dismissed. Compliance with the order of the court regarding
the alien's departure from the United States is the concern of the
Service.
  Order: It is ordered that the appeal be and the same is hereby
dismissed.




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