OVERVIEW
Se Jong Noh, a native and citizen of Korea, petitions for review of an order of the Board of Immigration Appeals (“BIA”) affirming an immigration judge’s (“IJ”) determination that Noh was not admissible to the United Statеs because, at the time of entry, he was not in possession of a valid nonimmigrant visa under 8 U.S.C. § 1182(a)(7)(B)(i)(II). Noh concedes that his nonimmigrant visa had been revoked by the Deputy Assistant Secretary for Visa Services of the United States Department of State (“Deputy Assistant”) prior to entry, but contends that the revocation was invalid because it was not based on a ground specified in the administrative regulation governing revocation of visas by consular officers. See 22 C.F.R. § 41.122. We have jurisdiction under 8 U.S.C. § 1105a. 1 Because the Deputy Assistant was not acting as a consular officer in revoking Noh’s visa, and he gave a faсially legitimate and bona fide reason for revoking the visa, we deny the petition for review.
BACKGROUND
The United States Embassy in Seoul, Korea, issued a student nonimmigrant visa to Noh on May 4, 1995. Noh entered this country on May 11, 1995, to attend Mont-clair School and College in Van Nuys, California. He returned to Korea for a visit in December of 1995, and attempted to reenter the United States on January 19, 1996. Unbeknownst to Noh, the Deputy Assistant had revoked Noh’s visa on September 8, 1995, on the ground that the visa had been “obtained illegally.” Noh was denied reentry into the United States pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I) and 8 U.S.C. § 1182(a)(7)(B)(i)(II) 2 and placed in exclusion proceedings on January 19,1996.
*940 The IJ found that Noh was inadmissible under 8 U.S.C. § 1182(a)(7)(B)(i)(II) because he was not in possession of a valid nonimmigrant visa at the time of entry. 3 The IJ concluded that she did not have authority to consider Noh’s argument that the revocation of his visa was invalid because it was not based on a ground enumerated in the administrative regulation governing revocation of visas by consular officers. See 22 C.F.R. § 41.122. The BIA dismissed Noh’s appeal of the IJ’s decision, concluding: “Our jurisdictiоn does not include review of a State Department official’s decision regarding the issuance or revocation of visas, which is within the domain of the Department of State.” This petition for review followed. 4
ANALYSIS
A 22 C.F.R. § lpl.122
Noh contends that the Deputy Assistant’s revocation of his visa was invalid because it was not predicated upon a ground set forth in 22 C.F.R. § 41.122, the regulation governing revocation of visas by consular officers. 5 This contention fails because the Deputy Assistant was not acting as a “consular officer” when he revoked Noh’s visa.
The Secretary of State or a consular officеr may revoke a visa at any time in his or her discretion. See 8 U.S.C. § 1201®. The Secretary of State delegatéd this statutory discretion to the Deputy Assistant pursuant to Delegation of Authority No. 74 and Redelegation of Authоrity No. 74-3-A. 6 The Deputy Assistant relied on this delegation of authority in revoking Noh’s visa:
This is to certify that I, the undersigned Deputy Assistant Secretary of State for Visa Services, acting in pursuance of the authority conferred by section 221® of the Immigration and Nationality Act (8 U.S.C. § 1201®), and by Delegation of *941 Authority No. 74-3-A, hereby revoke the nonimmigrant visas issued at the embassy of the United States in Seoul, Korea, to: ... Se Jong Noh.
Not only did the Deputy Assistant say he was revoking the visa pursuant to delegation from the Secretary of State, in the absence of anything to the contrary we must assume he was acting in that capacity beсause that is the only capacity in which his action would have been lawful.
See United States v. Chemical Found.,
We recognize that the definitiоn of “consular officer” under 22 C.F.R. § 40.1 includes the Deputy Assistant.
See
22 C.F.R. § 40.1 (“Consular officer, as defined in INA 101(a)(9) includes commissioned consular officers and the Deputy Assistant Secretary for Visa Services, and such other officers as the Deputy Assistant Secretary may designate for the purpose of issuing nonimmigrant and immigrant visas”);
see also
8 U.S.C. § 1101(a)(9) (“The term ‘consular officer’ means any consular, diplomatic, or other officеr or employee of the United States designated under regulations prescribed under authority contained in this chapter, for the purposes of issuing immigrant or nonimmigrant visas”). However, while a Deputy Assistant may be considered a consular officer for purposes of issuing visas, he need not serve as a consular officer in order to revoke a visa.
See
8 U.S.C. § 1201(i) (stating that a consular officer
or
the Secretary of State may revoke a visa) (emphasis added);
Mansur v. Albright,
Noh argues that our opinion in
Wong v. Department of State,
In light of the foregoing, it is clear that when the Deputy Assistant revoked Noh’s visa, he was acting in his capacity as a delegate оf the Secretary of State.
See Mansur,
B. Abuse of Discretion
Noh next contends that, even if the Deputy Assistаnt revoked his visa pursuant to a delegation of authority from the Secre
*942
tary of State, the Deputy Assistant abused his discretion because he cited “no facially legitimate reason whatsoеver” for revoking the visa. The INS maintains that the Secretary’s decision to revoke a visa is unreviewable because the Secretary’s decision to revoke a visa is committed to his discretion by statute,
see
8 U.S.C. § 1201 (i) (“After the issuance of a visa or other documentation to any alien, the consular officer or the Secretary of State may at any time, in his discretion, revoke such visa or othеr documentation.”), and there are no statutory or regulatory limitations on the Secretary’s discretion which would provide a meaningful standard against which to judge his exercise of discretion,
see County of Esmeralda v. United States Dep’t of Energy,
We nеed not decide whether the Secretary’s revocation decision would be unreviewable in all cases, because the Secretary offered a facially legitimate and bona fidе reason for revoking Noh’s visa, namely that the visa had been obtained illegally, thereby rendering his decision in this case unreviewable.
See Kleindienst v. Mandel,
Although Noh сomplains that the record does not contain any evidence regarding the circumstances leading to the revocation of his visa, that lacuna does not help him. It simply demonstrates there is nothing in the record to refute the Secretary’s facially legitimate and bona fide reason for revoking the visa. Even if resort to such evidence would be appropriate, that is a question we are not called upon in this case to decide.
PETITION FOR REVIEW DENIED.
Notes
. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ('IIRIRA”) repealed 8 U.S.C. § 1105a and replaced it with a new judicial review provision сodified at 8 U.S.C. § 1252. See IIRIRA § 306(c)(1), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), as amended by Act of Oct. 11, 1996, Pub.L. No. 104-302, 110 Stat. 3656. However, because the new review provision does not apply to petitioners whose proceedings commenced before April 1, 1997, this court continues to have jurisdiction pursuant to 8 U.S.C. § 1105a. See IIRIRA 309(c)(1).
. 8 U.S.C. § 1182(a)(7)(A)(i)(I) provides that “any immigrant at the time of application for admission ... who is not in possession of a valid unexpired immigrant visa ... is inadmissible.” Section 1182(a)(7)(B)(i)(II) provides that ”[a]ny nonimmigrant who ... is not in possession of a valid nonimmigrant visa or border crossing identification card at *940 the time of application for admission, is inadmissible.”
. The IJ found that the evidence ''[did] not sustain the charge under seсtion 212(a)(7)(A)(i)(I) charging that the applicant [was] an intending immigrant without a proper document.” (Emphasis added.)
. Although Noh’s visa expired on May 3, 1999, his petition for review is not moot because federal regulations permit a student visa holder to stay beyond his visa’s еxpiration date to continue his education. See 8 C.F.R. § 214.2(f)(1)(f), (0(7).
. Under 22 C.F.R. § 41.122, a
consular officer
may only revoke a nonimmigrant visa if the officer finds that the alien is not eligible for the particular visa classification or if the alien has been found ineligible for a visa under one of the inadmissibility provisions of section 212(a) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a).
See
22 C.F.R. § 41.122;
Wong v. Department of State,
. Delegation of Authority No. 74 provides:
Under the general direction of the Secretary of State ... the Administrator of the Bureau of Security, Consular Affairs and Personnel of the Department of State shall be charged with the administration and enforcement of the Immigration and Nationality Act and all other immigration and nationality laws relating to the powers, duties and functions of diplomatic and consular officers of the United States.
18 Fed. Reg. 7898 (1953).
Redelegation of Authority No. 74-3-A provides:
By virtue of the authority vested in the Secretary of State ... authority is hereby delegated to the Director, the Deputy Director and the Assistant Directors of the Visa Office of the Department of State to exercise individually the discretion conferred upon the Secretary of Stаte by [8 U.S.C. 1201(i)] to revoke visas or other documentation issued by consular officers.
25 Fed. Reg. 9959 (1960). The Director of the Visa Office is now known as the Deputy Assistant Secretary for Visa Services. See 56 Fed. Reg. 43551 (1991).
. 22 C.F.R. § 41.134 was a predecessor to 22 C.F.R. § 41.122.