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) 

nonimmigrant 

ON BEHALF OF RESPONDENT: 

Jack Wasserman, Esquire 

902 Warner Building 

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 

[8 U.S.C. 1251(a)(2)1—Remained longer, 

ON BEHALF OF SERVICE: 

Irving A. Appleman 

Appellate Trial Attorney 

* 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. 

240