GIANNOUTSOS

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rescinded the now 52-year-old respondent's permanent resident status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 numeri-
cal classification accorded, it is essential that the notice allege ineligi-
bility 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 non-
quota 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 estab-
lished that Rossi would have been ineligible for a quota visa.
However, in reexamining this issue, we take note that the evidentia-
ry 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 reopen-
ing 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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