BARK

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 hear-

ing 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 pur-

poses: 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 em-

ployment 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 applica-

tion 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 respond-

ent. 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 there-

fore 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 in-

quiry 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 judi-

cata, Davis Administrative Law Treatise, 1958, section 18.08. Ap-

proval 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 applica-

tions 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). Conie-

quently, 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 nonimmi-

grants, 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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