CAMPOS

Interim Decision #1942

MATTER OF CAMPOS

In Deportation Proceedings

A-8960574

Decided by Board February 6, and February11, 1969

A motion to reopen the deportation proceedings is denied by the Board

where the identical issue raised was before the Court of Appeals when it

considered and dismissed respondent's petition for review. However, where

new evidence adduced since entry of the judgment of the Court of Appeals

is subsequently presented, proceedings are reopened for further action in

light of the new evidence.

DEPORTABLE: Act of 1952—Section 241(a) (9) [8 U.S.C. 1251 (a) (9)3—After

admission as a nonimmigrant and subsequent

change to another nonimmigrant status under

section 248 of the Act, failed to comply with

the conditions of changed status.

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:

Sidney Broffman, Esquire Reece B. Robertson

756 South Broadway, Suite 818 Trial Attorney

Los Angeles, Calif. 90014 (Brief filed)

(Brief filed)

BEFORE THE BOARD

(February 6, 1969)

The case comes forward upon motion of counsel to reopen, set

aside and vacate our order dated August 8, 1967; declare invalid,

set aside and vacate the Class "A" medical certificate of the

United States Public Health Service; and remand the case for a

further examination.

The respondent, a native and citizen of the Republic of the

Philippines, 32 years old, an unmarried male, last entered the

United States at the port of Honolulu, Hawaii on or about July

14, 1954 as a nonimmigrant visitor. His nonimmigrant status was

changed to that of a student and he was authorized to remain in

the United States until March 4, 1963. The respondent was

granted the privilege of _voluntary departure on July 28, 1966,

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Interim Decision * 1942

such departure to be effected on or before August 5, 1966. The re-

spondent failed to depart and concedes deportability.

The respondent applied for adjustment of his status to that of

a permanent resident alien under the provisions of section 245 of

the Immigration and Nationality Act. He was convicted on two

occasions under the laws of the State of California on charges re-

lating to public decency and lewd conduct (Exs. 5 and 6). The re-

spondent was examined by a medical officer of the United States

Public Health Service on January 12, 1966 and was certified on

March 26, 1966 as a Class A Sexual Deviate. A board of medical

examiners affirmed the medical findings pursuant to section 234

of the Immigration and Nationality Act on July 25, 1966. The

special inquiry officer found that the respondent was statutorily

ineligible for relief under section 245 because he was inadmissible

to the Unted States pursuant to section 212 (a) (4) of the Immi-

gration and Nationality Act. On appeal, on August 8, 1967, we

affirmed that finding.

Thereafter, the respondent filed a petition for review in the

Court of Appeals for the Ninth Circuit. Crisologo Redondo Cam-

pos v. INS, 402 F.2d 758. The court on October 28, 1968 held that

the dismissal of the petitioner's application for adjustment of sta-

tus to that of a permanent resident and of his application for sus-

pension of deportation was proper inasmuch as an alien seeking

to adjust his status to that of a permanent resident is assimilated

to the position of an alien seeking to enter the United States for

permanent residence except for entry documents and affirmed the

finding of inadmissibility under section 212 (a) (4) of the Act (8

U.S.C.A. 1182 (a) (4)). The court concluded that the petitioner's

contentions that he was treated unfairly and in violation of due

process of law, as guaranteed by the Fifth Amendment to the

United States Constitution, were without merit.

The main thrust of the present motion is the alleged failure to

comply with the procedures and regulations of the United States

Public Health Service and with the "Manual For Medical Exami-

nation of Aliens." However, these matters are not new but were

on the record as they existed prior to the petition for review of

the order of the Immigration and Naturalization Service, and

were .raised, by inference at least, in the appeal of the prior at-

torney which was disposed of by this Board in its decision of Au-

gust 8, 1967 and by the court in its decision of October 28, 1968.

A party ordinarily cannot bring repeated court proceedings

testing the same issues. Such repetitious litigation is precluded by

the principle of res judicata, which declares that a person cannot

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Interim Decision #1942

present to the courts an issue which was decided or could have

been raised in a previous litigation between the same parties. 1

There must be some finality to litigation. The respondent had his

opportunity in court. His complaint was dismissed. He cannot

now file substantially the same complaint and ask the court again

to consider the matter. The dismissal of the former complaint is

res juclicetta. 2

Counsel has cited the case of Matter of Caydam, 12 I. & N.

Dec. 528 (1967). However, Caydem was an administrative deci-

sion and the bar of res judicata does not apply to administrative

decisions. Here, the validity of the Public Health Service finding

had already been raised and the Court of Appeals for the Ninth

Circuit has sustained our prior order. The court's judgment is res

judicata. We cannot permit piecemeal litigation of issues. We

must defer to the judgment of the reviewing court. The motion

will be denied.

ORDER: It is ordered that the motion be and the same is

hereby denied.

BEFORE THE BOARD

(February 11, 1969)

Following entry of our order of February 6, 1969, but before

copies thereof were sent out, we received a letter dated February

5, 1969 from counsel for the respondent, enclosing a letter dated

January 29, 1989 from the Assistant Surgeon General concerning

the respondent. The letter of January 29, 1969 states, in part:

After review of the procedures used and the testimony taken at the previous

examination, it has been decided that the eSt_Se merits reexamination. this

will be done by a medical board made up of officers who have not previously

been involved with this case .

In his order of March 28, 1967, the special inquiry officer found

respondent ineligible for section 245 relief because he had been

certified by the United States Public Health Service as a Class

"A" Sexual Deviate. In our order of August 8, 1967, we rejected

respondent's challenge to that finding and our order was sus-

tained on judicial review, Campos v. INS, 402 F.2d 758 (9 Cir.

1968). Respondent's new attack on the Class "A" medical certifi-

cate was dismissed in our February 6, 1969 order because we con-

1 Gordon and Rosenfield, section 8.19, citing Commissioner v. Stinnett, 333

U.S. 591, 597 (1948) ; see U.S. v. Rangel-Perez, 179 F. Supp. 619 (S.D. Cal.

1959).

2 Frisina v. Esperdy, 61 Civ. 221 (S.D. N.Y. 1961).

150

eluded further review was barred on res judicata principles by

the Ninth Circuit's judgment.

The Assistant Surgeon General's letter of January 29, 1969,

though somewhat informally presented, undoubtedly constitutes

new evidence which has accrued since entry of the Ninth Cir-

cuit's judgment. Consequently, principles of res juclicata do not

preclude our consideration of this new evidence. It now appears

that the medical findings underlying the special inquiry officer's

conclusion of ineligibility are being reexamined. If this new evi-

dence had been presented before we entered our order of Febru-

ary 6, 1969, we would have directed reopening. No reason ap-

pears why we should not do so now.

It is irdered that our orders of February 6, 1969 and August 8,

1867, and the special inquiry officer's order of March 28, 1967, be

vacated, but only insofar as concerns the issue of respondent's eli-

gibilitY for section 245 relief; and that the case be remanded to

the special inquiry officer for such further proceedings as may be

appropriate in the light of the evidence now presented.

151