Matter of Salazar
| Decision Date | 09 November 1979 |
| Docket Number | Interim Decision Number 2741,A-30326095 |
| Citation | 17 I&N Dec. 167 |
| Parties | MATTER OF SALAZAR In Exclusion Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
(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that the applicant, a returning lawful permanent resident, knew that a visa petition filed by his wife had been withdrawn, the Service produced a cable to the Commissioner of the Service for relay to the Consulate in Peru.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 1976, and exclusion proceedings were terminated.
EXCLUDABLE:
Order: Act of 1952—Sec. 212(a)(20) [8 U.S.C. 1182(a)(20)] —No valid visa
ON BEHALF OF APPLICANT: David A. Kattan, Esquire, 419 Gravier Street, New Orleans, Louisiana 70130
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 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 I-122) did not contain this charge. He also asserts that the finding of willful misrepresentation under section 212(a)(19) of the Act was 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 I-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....
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