vides, however, that "when the crime is committed by parties only one of whom is married both shall be punished."

It is true that a determination as to whether there has been the commission of adultery is dependent upon the law of the state in which the act occurred, Matter of Pitzoff, 10 I. & N. Dec. 35 (BIA, 1962); Dickhoff v. Shaughnessy, 142 F. Supp. 535 (S.D.N.Y., 1956). However, we are of the opinion that this rule relates only to the issue of the existence of the substantive offense, and not to questions of local pecularities of criminal procedure. Otherwise, the Congressional desire for uniformity of application of the Immigration and Nationality Act would be frustrated.

Counsel's reference to the case of Wadman v. INS, 329 F.2d 812 (9 Cir., 1964) is inapposite. In that case the court declined to find adultery where the extramarital intercourse was not of such a nature as to tend to destroy an existing marital relationship. In Wadman the alien's wife had deserted him and left the country. This is readily distinguishable from the present case, because the respondent was not separated from his wife during the period in which he engaged in such acts.

We accordingly agree with the decision of the special inquiry officer to deny suspension of deportation because the respondent could not establish good moral character for the requisite period. We also approve his decision to deny voluntary departure for failure to establish good moral character for the five years immediately preceding his application.

On April 23, 1971, the respondent's counsel submitted an application for termination of proceedings pursuant to section 241(f) of the Act. His application was discussed during oral argument. Counsel pointed out that the respondent has four legitimate United States citizen children in addition to his two illegitimate ones. It is counsel's claim that the fraud necessary to bring section 241 (f) into play is contained in the fact that the respondent, who had entered as a nonimmigrant, actually concealed his intention to remain in the United States as an immigrant. The fact that the respondent had used an assumed name under which he

1 Section 241 (f). The provisions of this section relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not apply to an alien otherwise admissible at the time of entry who is the spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence.

acquired Canadian citizenship is not germane to the resolution of this appeal.

During oral argument counsel acknowledged that the respondent had not been charged with excludability under section 212 (a) (20) as an immigrant without a visa nor under section 212 (a) (19) for fraud or misrepresentation. He pointed to the case of Lee Fook Chuey v. INS, 439 F.2d 244 (9 Cir., 1971), as authority for the proposition that the specific charge lodged against the alien is not important. Indeed, that case does purport to include any deportation charges resulting directly from misrepresentation regardless of the section of the Act under which it is brought, provided the alien was "otherwise admissible" as provided in 241 (f).

The Lee Fook Chuey decision has been endorsed and followed in two subsequent decisions of the Ninth Circuit, United States v. Osuan-Picos, 433 F.2d 907 (9 Cir., 1971), and Vitales v. INS, 443 F.2d 343 (9 Cir., 1971). A certiorari petition has been filed to review the latter, INS v. Vitales, No. 71-431. Thus, the Ninth Circuit's construction of section 241 (f) may soon be definitively reviewed. We are aware of no other circuit which has followed the Ninth Circuit's holding in Lee Fook Chuey. Until the matter has been definitively resolved, we are bound to accept the Attorney General's decision in Matter of Lee [Fook Chuey], Interim Decision No. 1960 (A.G., 1969). In fact, another court, in Gambino v. INS, 419 F.2d 1355 (2 Cir., 1970), cert. denied 399 U.S. 905, specifically endorsed the Attorney General's holding in Matter of Lee [Fook Chuey], supra.

The Attorney General's holding in Matter of Lee [Fook Chuey], supra, was that an alien who entered the United States without inspection upon a knowingly false claim of United States citizenship, thereby circumventing the visa-issuing process, is ineligible for relief under section 241 (f), since he is not "otherwise admissible" at time of entry. The Attorney General's opinion is consistent with two court decisions, Ferrante v. INS, 399 F.2d 98 (6 Cir., 1968), and Tsaconas v. INS, 397 F.2d 946 (6 Cir., 1968), both of which denied section 241 (f) relief to aliens who had entered as nonimmigrants.

The case of Muslemi v. INS, 408 F.2d 1196 (9 Cir., 1969), is relied upon by counsel in support of his claim that section 241 (f) relief is available to a nonimmigrant. However, as the appellate trial attorney correctly pointed out, in that case the charge was not that the immigrant had violated the conditions of his nonimmigrant status, as is charged in the present case, but that he

entered without an immigrant visa. We note that the court merely remanded the Muslemi case for an administrative determination of whether the alien was "otherwise admissible" at the time of his entry.

There is an additional reason why we are not bound to follow the Ninth Circuit's holding in the Lee Fook Chuey case, supra. As we stated in Matter of Amado and Monteiro, Interim Decision No. 1951 (BIA, 1969), "the fact that a lower federal court has rejected a legal conclusion of this Board does not require us to recede from that conclusion in other jurisdictions." The same principle would apply with at least equal vigor to an opinion of the Attorney General, such as the Attorney General's decision in Matter of Lee [Fook Chuey], supra.

Hence, we shall affirm the special inquiry officer's decision to deny the respondent suspension of deportation and voluntary departure. We also shall deny his application for termination of proceedings under section 241 (f). The appeal will be dismissed and the following order will be entered. ORDER: The appeal is dismissed.

MATTER OF GODFREY

In Deportation Proceedings

A-12793739

Decided by Board November 29, 1971

(1) Where no foundation was laid for such questioning, cross-examination concerning alleged improper Service methods of investigation was properly restricted by the special inquiry officer during the alien's deportation hearing.

(2) Unsubstantiated allegations of official misconduct should not be urged on appeal to the Board of Immigration Appeals in deportation proceedings but should be substantiated by specification under oath in support of a motion to reopen the proceedings. CHARGE:

Order: Act of 1952-Section 241(a) (1) [8 U.S.C. 1251 (a) (1)]—Excludable at time of entry—no labor certification.

The special inquiry officer found the respondent deportable as charged in his order of February 12, 1971. He denied voluntary departure as a matter of administrative discretion. From his order the respondent appeals. Her appeal will be dismissed.

The record relates to a 40-year-old female, native and citizen of Jamaica, B.W.I., who entered the United States on or about June 21, 1966 as a special immigrant granted exemption from the labor certification requirement of section 212 (a) (14) by virtue of her marriage to a United States citizen. The special inquiry officer found that the marriage was entered into solely for the purpose of evading the labor certification requirement and that the respondent, therefore, was not exempt from the provisions of section 212 (a) (14). The special inquiry officer, therefore, found her deportable as charged. We agree and uphold the special inquiry officer's decision that deportability has been shown with evidence that is clear, convincing and unequivocal.

The Government's case against the respondent was based entirely upon her prehearing sworn statement in which she

admitted that there had been a sham marriage. She attempted to repudiate this statement during the hearing before the special inquiry officer, claiming that it had been involuntary and was obtained in violation of her right to counsel. The investigator who took the statement testified at great length and related how the statement had been voluntarily given, and that the respondent had been fully advised as to her right to counsel. The record indicates that the respondent has a knowledge of the English language. Her statement (Ex. 2) contains a warning as to her rights, and a waiver, which she signed. The special inquiry officer, who considered the many inconsistencies in her story, conIcluded that her claim that the statement was taken by force and by means of threats to her personal liberty was totally unworthy of belief. We note that the special inquiry officer heard the evidence and was in the best position to observe the demeanor of the witnesses and assess their credibility. After a careful review of the record, we conclude that there was no error and that the determination of the special inquiry officer to receive the statement in evidence was correct.

Counsel for respondent at oral argument had initially participated in the hearing before the special inquiry officer but was replaced by another lawyer from the same firm during a portion of the proceedings. The part he missed included the testimony of the Service investigator. Present counsel contends that the sole issue on appeal is whether the Service investigator advised the respondent of her right to counsel before he took her prehearing statement. Counsel sought to have the respondent testify anew at oral argument as to the circumstances under which the statement in question was taken.

We did not permit her to testify at oral argument for two reasons. First, this Board is not equipped to receive oral testimony. Second, we ordinarily confine our review to a consideration of the record alone, although in exceptional cases we do receive and consider additional affidavits or other documents not previously available.1

During the proceedings before the special inquiry officer respondent's previous counsel attempted to impeach the testimony

1 In Matter of SS. Captain Demosthenes, Interim Decision No. 1995 (BIA, 1969), we considered new material which came into being subsequent to the date of the special inquiry officer's decision, since the authenticity of the information was not in question and because we desired to avoid unnecessary delay by disposing, in a timely fashion, of all aspects of a multi-faceted case. See also Bovinas v. Savoretti, 146 F. Supp. 274 (S.D. Fla., 1956).