Interim Decision #2174
MATTER OF BARK
In Deportation Proceedings
A-19031067
Decided by Board November 27 ? ibn
(1) Where the special inquiry officer who conducted respondent's original hearing at Honolulu, Hawaii, was regularly stationed at El Paso, Texas, and was
not assigned to Honolulu at the time of the reopened hearing 1 year and 9
months later, he was clearly "unavailable" within the meaning of 8 CFR
242.8(b) so as to permit a substitution of special inquiry officer. Further,
objection to substitution of special inquiry officers will not be entertained on
appeal to the Board of Immigration Appeals where no objection was made at
the hearing.
(2) Notwithstanding respondent is the beneficiary of an unrevoked visa petition
according. him immediate relative status upon the basis of his marriage to a
United States citizen, the Board of Immigration Appeals and the special
inquiry officer are not precluded from finding, in deportation proceedings, that
a bona fide marriage has not been established for discretionary relief purposes: hence, his applications for voluntary departure and for the bellefiLs of
sections 245, 241(f), and 212(1) of the Immigration and Nationality Act, as
amended, are denied.*
CHARGE:
Order: Act of 1952—Section 241(aX2) [8 U.S.C. 1251(a)(2)1—Remained longer,
nonimmigrant
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Jack Wasserman, Esquire Irving A. Appleman
902 Warner Building Appellate Trial Attorney
Washington, D. C. 20004
Attorneys of record:
Vincent H. Yano, Esquire
333 Queen Street, Suite 800
Honolulu, Hawaii 96813
(Brief filed jointly by
attorneys of record)
Elmer E. Poston, Esquire
770 Kapiolani Boulevard
Honolulu, Hawaii 96813
* Reversed and remanded, 504 F.2d 1030 (CA. 9, 1974).
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Interim Decision #2174
This is an appeal from an order of deportation entered by the
special inquiry officer, denying termination pursuant to section
241(f) of the Immigration and Nationality Act, denying adjustment
of status under section 245, denying a waiver under section 212(1),
and denying voluntary departure.
The record relates to a married male alien, a native and citizen
of Korea, 39 years of age, who entered the United States August
25, 1968 as a visitor for business. His status was subsequently
changed to that of student. He was authorized to remain in the
United States until July 4, 1969. Thereafter he was granted
permission to depart on or before September 26, 1969. He has
remained in the United States since that date without authority.
Respondent was married on May 26, 1969 to Yong Ja Mark, a
permanent resident of the United States who became a United
States citizen March 13, 1970. An application for adjustment of
status under section 245 was denied on September 8, 1969 on the
grounds that he had obtained his visitor's visa on the basis of
misrepresentations and that he had accepted unauthorized employment shortly after entering the United States, in violation of
his nonimmigrant status.
A deportation hearing was originally conducted before Special
Inquiry Officer A. K. Moe on October 10, 1969 at Honolulu, Hawaii.
During the course of the hearing, respondent renewed his application for adjustment of status under section 245. Decision was
reserved and it was stipulated that the hearing could be reopened
if investigation developed information derogatory to the respondent. The hearing was reopened and a new hearing was conducted
on July 15, 1971 before Special Inquiry Officer B. S. Karmiol who
stated that he had reviewed the record and was familiar with the
proceedings. No objection was made at the second hearing to the
substitution of special inquiry officers.
The investigation had revealed that respondent was not living
with his wife (Exh. 5) and that he had attempted to give $1,000 to
the officer investigating his case (Exh. 5B) On the basis of these
facts and the testimony given at the original and reopened
hearings, Special Inquiry Officer Karmiol found that respondent
had not established a bona fide marriage and that he did not
warrant the favorable exercise of discretion.
On appeal to this Board, counsel contends that the substitution
of special inquiry officers was contrary to regulations and therefore improper, because the record does not establish that the first
special inquiry officer was unavailable. It has been held that a
special inquiry officer is unavailable when he is assigned to other
duties at the time of the reopened hearing, Carlisle v. Brownell,
149 F. Supp. 855 (D.D.C., 1957); Say v. Del Guercio,
237 F.2d 715
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Interim Decision #2174
(C.A. 9, 1956); Alexiou v. Rogers, 254 F.2d 782 (D.C. Cir., 1958);
Matter of C—,
5 I. & N. Dec. 743 (BIA, 1954). In this case it is
conceded by counsel that there was no special inquiry officer
regularly assigned to Honolulu, Hawaii. The original special inquiry officer's regular place of duty was El Paso, Texas. He was
not assigned to Honolulu, Hawaii at the time of the reopened
hearing, which took place one year and nine months after the date
of the original hearing. Therefore, we find that he was clearly
"unavailable" within the meaning of the regulation permitting
substitution, 8 CFR 242.8(b). Furthermore, we have held that we
will not entertain an objection to substitution of special inquiry
officers in cases, such as this, in which no objection was made at
the hearing, Matter of C— ; supra. Respondent has not shown that
he was prejudiced by the substitution of special inquiry officers.
Counsel further contends that this Board is bound, by the
principle of administrative res judicata, to recognize the bona fides
of respondent's marriage, because he is the beneficiary of an
unrevoked visa petition according him the status of spouse of a
United States citizen.' The purpose of res judicata is to provide
repose from relitigation of an issue previously fully determined; its
purpose is not to prohibit supervisory review of adminstrative
decisions. Executive acts have never been regarded as res judicata, Davis Administrative Law Treatise, 1958, section 18.08. Approval of a visa pptitinn is an PXPCtitive, administrative function.
The approval is based merely on review of an application form and
accompanying documents. A trial-type hearing is not required.
Here facts have been adduced which were not known at the time
of the approval of the visa petition.
... administrative res judicata should not apply where the Secretary's own
regulations do not require administrative finality.... A prior administrative
determination should not ... be ree judicata where new and material evidence is
offered which is of different determination, Leviner v. Richardson,
443 F.2d 1338
(4 Cir., 1971).
Furthermore, res judicata does not apply because there is no
identity of parties. Visa petitions are submitted by permanent
residents and United States citizens; adjustment of status applications are made by alien nonresidents, Matter of Sweed, 16 I. & N.
Dee. 668 (BIA,1964).
The special inquiry officer in considering an adjustment of
status application pursuant to section 245 is in much the same
A visa petition according respondent status as spouse of a lawful permanent
resident was approved October 10, 1969. That status converted automatically to
that of spouse of a United States citizen upon the naturalization of the
petitioner, 8 CFR 204.5(c).
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Interim Decision #2174
situation as he is when hearing an exclusion case. He must decide
whether the alien qualifies for entry, irrespective of any prior
determinations. It is the duty of the special inquiry officer to
determine whether an alien actually qualifies for the status into
which he has been classified. The special inquiry officer is not
bound by such prior classification in an exclusion hearing. His
authority is no less in a deportation hearing.
The statute specifically provides that the visa petition procedure
shall not be construed as entitling an immigrant to enter the
United States if at the time of arrival he is found not to be entitled
to the classification accorded him by the visa petition, section
204(e). An applicant for adjustment of status is assimilated to the
position of an applicant for entry, Campos v. INS, 402 F.2d 758 (9
Cir., 1968); Talanoa v. INS,
397 F.2d 196 (C.A. 9, 1968). Coniequently, we hold that this Board and the special inquiry officers
are not bound by prior determination of a visa petition that an
alien is entitled to a particular classification.
We further hold that, on this record, a bona Me marriage,
entitling an alien to benefits under the immigration laws, has not
been established. Investigation revealed that respondent and his
wife lived in separate quarters. While both testified that their
marriage was "a good marriage," their testimony as to how much
time they actually spent together was conflicting. The special
inquiry offic6r, who had respondent and his wife before him, and
thus was in the best position to assess their credibility, found them
not credible. On the basis of this record, we agree with his
conclusion.
Inasmuch as we hold that this is not a bona fide marriage,
respondent cannot claim any immigration benefits as a result of it,
either under section 245, 212(i) or 241(f).
Furthermore, section 241(f) would not avail respondent because
his entry was as a nonimmigrant. We have held that the benefits
of section 241(f) do not apply to persons who enter as nonimmigrants, Matter of Mangabat, Interim Decision No. 2131 (BIA., March
29, 1972).
The special inquiry officer was warranted in denying voluntary
departure as a matter of discretion on the facts of this case.
ORDER: The appeal is dismissed.
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