Interim Decision #2607
MATTER OF MARQUES
In Deportation Proceedings
A-17241244
Decided by Board August 18, 1977
(1) An applicant for adjustment of status under section 245 of the Immigration and
Nationality Act who meets the objective prerequisites is merely eligible for adjustment
of status. He is in no way entitled to adjustment. When an alien seeks favorable exercise
of the discretion of the Attorney General, it is incumbent upon him to supply the
information that is within his knowledge and relevant and material to a determination of
whether he merits adjustment.
(2) In this case, respondent was arrested on July 15, 1972 with $54,000 cash in his car and
$32,000 in bare( books. He Invoked the Fifth Amendment privilege when questioned
about the source of the money by the immigration judge adjudicating his section 245
application.
(3) Respondent had every right to assert his fifth amendment privilege. He also had a
requirement as an applicant for section 245 discretionary relief to provide information
relevant to the exercise of the Attorney General's discretion. The source of this money
was such a relevant factor. In refusing to disclose it, the respondent prevented the
immigration judge from reaching a conclusion as to respondent's entitlement to section
245 relief. Under these circumstances, respondent has failed to sustain the burden of
establishing that he is entitled to the privilege of adjustment of status, and his application was properly denied.
CHARGE!
Order Act of 1952—Section 241(a)(9) [8 U.S.C. 1251(a)(9))—Failed to comply with
conditions of nonimmigrant status
00 14 BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Ruth G. Finn, Esquire B. J. Rumaker
51 West Weldon Trial Attorney
Phoenix, Arizona 85013
BY: Milhollan, Chairman; Wilson, Appleman, and Maguire, Board Members
This is an appeal from an order of an immigration judge, dated
December 3, 1976, denying the respondent's application for adjustment
of status under section 245 of the Immigration and Nationality Act in
the exercise a discretion. The appeal will be dismissed_
The record relates to a single male alien, a native and citizen of Spain,
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Interim Decision #2607
43 years of age, who last entered the United States on July 23, 1964, as a
nonimmigrant sheepherder. He was found deportable because of his
failure to comply with the conditions of his nonimmigrant status- Thereafter, on March 11, 1975, we dismissed his appeal from denial of his
application for suspension of deportation. Then, on January 24, 1975,
the respondent's United States citizen brother filed an 1 - 130 petition
seeking fifth preference for his brother. The petition was approved. The
respondent next moved to reopen the proceedings to permit him to
apply for relief under the provisions of section 245 of the Act. In our
order we made the following observation:
. in applying for adjustment of status (just as in applying for suspension of
deportation) the respondent must bear the burden to establish eligibility and it will be
incumbent upon him to supply whatever evidence is necessary for proper adjudication of
his application.
The record discloses that the respondent was arrested on July 15,
1972, when he had $54,000 in the trunk of the automobile that he was
driving (mostly in bills of $100 and $50 denominations) and had bank
books for accounts totaling more than $32,000.
Tn his decision, the immigration judge noted that the respondent
invoked the privilege against self-incrimination when asked to state the.
source of ownership of the $54,000 he had in hispossession on July 15, '
1972, or the ownership of approximately $32,000 that was related to the
bank books in his possession, thus cutting off an important line of
inquiry required for a proper exercise of his discretion.
Counsel on appeal contends (1) that the immigration judge abused his
discretion in denying the section 245 application because the respondent
invoked his constitutional right against self-incrimination, and thus cut
off the line of the immigration judge's inquiry whether he merited the
privilege of adjustment of status; and (2) -that the immigration judge's
determination that the respondent's reliance on his constitutional right
against self-incrimination is an adverse factor and was erroneous and
contrary to modern constitutional law which forbids' any "penalty" for
invoking the Fifth Amendment. Counsel contends that the respondent
is entitled to adjustment of status under section 245 of the Act.
We have reviewed the record de nova and considered counsel's contentions on apical. We have decided that adjustment of status is not
warranted in the exercis e of discretion.
Section 245 of the Act reposes with the Attorney General and his
delegates the discretionary power to grant an adjustment of status.
Thomaidis v. INS, 431 F.2d 711 (9 Cir. 1970), cert. denied
401 U.S. 954
(1971); Matter of Arai, 13 I. & N. Dec. - 494 (BIA 1970). Adjustment of
status is, therefore, a matter. of administrative grace, not mere statutory eligibility. Hintopoutos v. Sletcuyhmessy,
363 U.S. 72 (1957); A/724207.-
jar v. INS,
438 F.2d 1028 (3 Cir. 1971). Thus, an applicant who meets
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Interim Decision #2607
the objective prerequisites is merely eligible for adjustment of status;
he is in no way entitled to such relief. Jarecha v. INS, 417 F.2d 220 (5
Cir. 1969); Chen, v. Foley,
385 F.2d 929 (6 Cir. 1967), cert. denied
393
U.S. 838 (1968). The burden of proof is squarely upon the respondent to
establish not only that he meets all statutory requirements for eligibility but also that he ie worthy of the exercise of discretion in his favor. 8
C.F.R. 242.17(d); Ameeriar, supra, at 1030;
Thomaidis, supra, at 712;
Chen, supra, at 934. See, Jarech,a, supra, 4223. Since the adjustment
of status of an alien is an extraordinary relief, it should be granted only
in meritorious cases. Ameeriar, supra,, at 1032;
Chen, supra, at 934.
We have consistently taken the position that when an alien seeks the
favorable exercise of the Attorney General's discretion, it is incumbent
upon him to supply such information that is within his knowledge and is
relevant and material to a determination of whether he merits the relief.
Matter of Mariani,
11 I. & N. Dec. 210 (BIA 1965); Matter of De Lucia,
11 I. & N. Dec. 565 (BIA 1966); Matter of Francois,
10 I. & N. Dec. 168
(BIA 1963); Matter of Pires Da Silva,
10 I. & N. Dec. 191 (BIA 1963).
This position has been judicially upheld; De Lucia v. INS,
370 F.2d
305 (7 Cir. 1966); Kimm v. Rosenberg,
363 U.S. 405 (1960); United
States v. Anastasio,
120 F. Supp. 435 (D. N.J. 1954), reversed on other
grounds
226 F.2d 912, cert. denied
351 U.S. 931.
There is, as counsel argues, no proof of illegality or immorality with
respect to the "unexplained large sum of money" which was found in the
respondent's possession at the time of his arrest for a traffic violation.
Good moral character is not a statutory requirement for relief under
section 245, as is the case, for example, with suspension of deportation
(244). Nevertheless, an explanation of how one in the respondent's
circumstances acquired such a large sum of money-is obviously relevant
to the exercise of the Attorney General's discretion. Lacking this information, the immigration judge was thereby prevented from reaching a
conclusion about the respondent's entitlement to the discretionary relief
he seeks. The respondent had every right to assert his claim under the
Fifth Amendment. However, in so doing he runs the risk that he may
fail to carry his burden of persuasion with respect to his application for
discretionary relief. In these circumstances, the respondent failed to
sustain the burden of establishing that he is entitled to the privilege of
adjustment of status. In Jimenez v. Barber,
252 F.2d 550 (9 Cir. 1958),
the court stated, at p. 554 as follows:
. . . the refusal to answer questions was in a proceeding in which the applicant
sought nothing to which was entitled as a matter of right. He asked only for an act of
grace, dependent upon an official exercise of sound discretion. The hazards in adopting
an obstructive attitude in such proceedings must be at least as great as those involved in
eases where established rights are sought to be enforced or prnteetod
Counsel cites Spevack v. Klein, 385 U.S. 511 (1967), for the proposi-
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Interim Decision #2607
tion that an attorney at a bar disciplinary hearing had a full right to
invoke the Fifth Amendment without the imposition of a "penalty,"
which makes that right costly. We do not perceive the analogy of any
penalty in this factual situation. The respondent here had no right to an
adjustment of his status, a purely discretionary matter. We adhere to
the reasoning in Rin2117, V. Rosenberg, supra. He had a right to file an
appliCation and to hdve it fairly considered on the evidence laid before
the immigration judge and this Board. This we have done and find a
serious gap leaving a question in our minds as to his suitability for the
Attorney General's largesse. That doubt we will not resolve against the
government as, in effect, he asks us to do. See Jay v. Boyd,
351 U.S.
345, 354 (1956); U.S. ex rel. Kaloudis v. Shaughnessy,
180 F.2d 489 (2
Cir. 1950). Accordingly, the following order will be entered.
ORDER: The appeal is dismissed.
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