Interim Decision #1942 

MATTER OF CAMPOS 

In Deportation Proceedings 

A-8960574 

Decided by Board February 6, and February 11, 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: 

Sidney Broffman, Esquire 

756 South Broadway, Suite 818 

Los Angeles, Calif. 90014 

(Brief filed) 

ON BEHALF OF SERVICE: 

Reece B. Robertson 

Trial Attorney 

(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 respondent 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 relating to public decency and lewd conduct (Exs. 5 and 6). The respondent 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 Immigration 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 Campos v. INS, 402 F.2d 758. The court on October 28, 1968 held that 

the dismissal of the petitioner's application for adjustment of status to that of a permanent resident and of his application for suspension 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 Examination 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 attorney which was disposed of by this Board in its decision of August 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 decision 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 sustained on judicial review, Campos v. INS, 402 F.2d 758 (9 Cir. 

1968). Respondent's new attack on the Class "A" medical certificate was dismissed in our February 6, 1969 order because we con1Gordon 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 Circuit'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 evidence had been presented before we entered our order of February 6, 1969, we would have directed reopening. No reason appears 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 eligibilitY 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