Interim Decision #2184
MATTER or MoLoam
In Deportation Proceedings
A=17894515
Decided by Board February 22,1978
An objection to substitution of special inquiry officers will lie only when the
objection is made at the deportation hearing. Furthermore, substitution of
special inquiry officers is authorized under 8 CFR 242.8(b) where, as in the
instant case, the original special inquiry officer regularly stationed elsewhere
was unavailable for the renewed hearing.
CHARGE:
Order: Act of 1952 — Section 241(a)(2) 18 U.S.C. 1251(a)(2)1—Nonimmigrant
visitor for pleasure—remained longer than permitted
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Elmer E. Poston, Esquire Gary ,Y. Fujiwara
770 Kapiolani Blvd. Acting Thal Attorney
Honolulu, Hawaii 96813 (Brief filed)
(Brief filed)
Respondent moves for reconsideration of our decision entered
March 13, 1972 wherein we found her deportable and denied her
the discretionary relief of adjustment of status. We granted her
the privilege of voluntary departure. On April 21, 1972, she filed a
declaratory judgment action in the United States District Court
for the District of Hawaii requesting a finding that the denial of
her application for adjustment of status was arbitrary, an abuse of
discretion and contrary to the law. The declaratory judgment
action was dismissed by the court for lack of jurisdiction, on the
ground that review of a Board decision should be sought •in the
United States Court of Appeals. Respondent brought no action in
the United States Court of Appeals but moves us to reconsider our
decision.
The record relates to a married female alien, a native and
citizen of Japan, 36 years of age, who entered the United States as
a nonimmigrant visitor for pleasure on March 12, 1967 for a period
to expire on July 12, 1967. On June 28, 1967 she married a citizen of
the United States.
283
Interim Decision #2184
The United States citizen spouse submitted a visa petition
(Form 1-130) to accord respondent immigration benefits as his
spouse. Spouses of United States citizens who are the beneficiaries
of approved visa petitions are exempt from the numerical limitations and from the requirement of presenting a labor clearance
certifying that their employment would not adversely affect the
United States labor market. Together with the visa petition; the
respondent submitted an application to adjust her status to
permanent resident. Thereafter, the respondent's spouse withdrew
the visa petition. The application for adjustment of status was
then denied on the ground that respondent was not eligible under
section 245 of the Act because, absent an approved visa petition,
an immigrant visa was not immediately available to her. She was
granted until August 25, 1968 to depart the United States voluntarily. She did not depart.
A deportation hearing was conducted April 16, 1969 before
Special Inquiry Officer 13. S. Karmiol. At that hearing, the respondent renewed her application for adjustment of status, claiming that her husband was willing to resubmit a petition on her
behalf. The special inquiry officer noted that she had not established eligibility for adjustment of status but stated that he was
going to continue the case to give her an opportunity to submit
either a visa petition or a labor clearance. The respondent's
husband did submit a visa petition vn April 26, 1969, which was
approved November 20, 1969, whereupon respondent's application
for adjustment of status was processed and an investigation
conducted. As a result of the investigation, the Service uncovered
evidence suggesting that her marriage was not bona fide.
A new hearing was scheduled May 13, 1970 before Special
Inquiry Officer J. C. Craig, who stated at the commencement of
the hearing that he had familiarized himself with the record.
Respondent did not object to the substitution of special inquiry
officers. She did object to the presentation of any new evidence on
the ground that the hearing had previously been "closed." Special
Inquiry Officer Craig denied the objection and proceeded to receive evidence. He denied her application for adjustment of status
as a matter of discretion. She appealed to us, and we remanded for
consideration pursuant to Matter of Arai, 13 I. & N. Dec. 494 (B1A,
1970). The special inquiry officer again denied adjustment and we
affirmed. After an unsuccessful action in the United States District Court for Hawaii, she moves us to reconsider our decision.
On this, her third attempt at review by this Board, respondent
raises for the first time an objection to the substitution of special
inquiry officers, claiming error because there was no showing that
the original special inquiry officer was unavailable at the time of
284
Interim Decision #2184
the second hearing. If respondent •wished to raise a legal objection
to the substitution of special inquiry officers, the had the opportunity to raise this point before. All bases of appeal should be raised
together for our consideration, rather than presented piecemeal.
Even if she had raised this point previously, however, she would
not have prevailed. An objection to substitution of special inquiry
officers will lie only when the objection is made at the deportation
hearing. Respondent did not object to the substitution of special
inquiry officers at the commencement of the hearing before the
second special inquiry officer; therefore, she cannot object later,
Matter of Bark, Interim Decision No. 2174 (BIA, November 27,
1972); Matter of C—, 5 I. & N. Dec. 743 (B IA, 1954). Furthermore,
substitution of special inquiry officers is authorized when the
original special inquiry officer is unavailable, 8 CFR 242.8(b). We
have held that a special inquiry officer stationed elsewhere is
unavailable, Matter of Bark, supra. This was the case here.
Respondent cannot complain that additional evidence was received at the second hearing, because the case had been continued
for the presentation of additional evidence. There was nothing
improper in receiving additional evidence at a hearing rather than
off the record. Nor was it improper to receive evidence in addition
to that for which the case was continued. In view of the fact that
the Service became aware of facts of which it previously had no
knowledge, and in view of the passage of time (more than one
year) between the hearings, it was correct to schedule a continued
hearing to clarify and bring up to date the record upon which a
decision was to be based. Anyway, most of the evidence received at
the second hearing consisted of respondent's own testimony.
At the time of the first hearing respondent was not statutorily
eligible for the relief she requested. At the time of the second
hearing, on the basis of the evidence presented, she was found not
meriting the favorable exercise of discretion.
Counsel complains that the procedure followed below was in
error in that a new hearing should not have been conducted
without a motion to reopen. A motion to the special inquiry officer
to reopen was unnecessary because at the conclusion of the first
hearing the case was continued, not decided_ Even if there was
error in the procedure below, it was harmless error. The hearing
below was fair and respondent's application was fully considered.
This Board reviewed the record and independently decided that
respondent did not merit the discretionary relief of section 245.
Oral argument was requested on the present motion. Oral
argument on a motion to reconsider is not a matter of right, 8 CFR
3.8(a). Inasmuch as it would serve no useful purpose, the request
for oral argument is denied.
285
Interim Decision #2184
ORDER: The request for oral argument is denied. The motion
to reconsider is denied.
286
