Interim De zision #2352 

MATTER OF MARQUES 

In Deportation Proceedings 

A-17241244 

Decided by Board March 11, 1975 

When a responient is seeking the discretionary benefit of suspension of deportation under 

section 244(a)(1) of the Immigration and Nationality Act, and the discretionary relief of 

voluntary departure under section 244(e) of the Act, he must establish that his deportation would result in extreme hardship and that he has been a person of good moral 

character during the requisite period of time. Where during the course of the deportation proceedings it was disclosed that when he was stopped for a traffic violation in 1972, 

he had about $54,000 in his possession, and he claimed the Fifth Amendment privilege 

against self incrimination concerning the ownership and source of the money, and the 

only evidence presented to show extreme hardship related to loss of future access to 

financial benefits, he failed to meet his burden to establish eligibility for the benefits he 

sought. 

Cl/AEG= 

Order: Act 1952—Section 241(a)(9) [8 U.S.C. 1251(a)(9)J—failed to comply with 

conditions of nonimmigrant status. 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Galen H. Wi.kes, Esquire William E. Weinert, Esquire 

3550 N. Cenral Ave., Suite 404 Trial Attorney 

Phoenix, Arizona 85012 

This is an appeal from the immigration judge's decision denying the 

respondent's application for suspension of deportation pursuant to section 244(a)(1) of the Act and denying voluntary departure. The appeal 

will be dismissed. 

The record relates to a single male alien, 41 years of age, a native and 

citizen of Spain. The respondent entered the United States as a nonhnmigrant sheepherder. He was charged with deportability for failure to 

comply with the conditions of his nonimmigrant status, and was found 

deportable on that ground by the immigration judge in a decision entered on April 16, 1971. A timely appeal was not taken from that 

decision. The respondent thereafter moved to reopen. That motion was 

denied by the immigration judge on May 24, 1971. The Board on August 

9, 1971 dismissed the respondent's appeal from the denial of his motion. 

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Interim Decision #2352 

On November 26, 1971, the Board granted a new motion which he had 

filed, which sought reopening to permit him to apply for suspension of 

deportation. The proceedings were reopened; a new hearing was conducted before the immigration judge, at which the respondent applied 

for suspension of deportation. The case is now before us on appeal from 

the immigration judge's order of November 6, 1972 denying the respondent's application for suspension of deportation. 

During the course of the reopened hearing, the respondent testified 

that he was in possession of about $54,000 when stopped by police for a 

traffic violation on July 15, 1972. The respondent invoked his constitutional privilege against self incrimination under the Fifth Amendment in 

response to questions concerning the ownership or source of the money. 

The respondent contends that he has established eligibility for suspension of deportation notwithstanding his refusal to answer further 

questions concerning the money. He further contends that his right to 

invoke the Fifth Amendment is "illusionary [sic] and valueless" if deportation results from invoking that right. 

There is no question that the respondent had the right to invoke his 

constitutional privilege under the Fifth Amendment in this proceeding, 

Valeros v. INS, 387 F.2d 921 (C.A. 7, 196'7). Counsel's argument 

suggests that the respondent is being penalized for invoking the Fifth 

Amendment. 1There is a distinction, however, between a case such as 

this one and cases in which an adverse inference is drawn from the 

invocation of the privilege, Griffin v. California, 380 U.S. 609 (1965), or 

in which a person suffers adverse consequences because of official annoyance at the invocation of a constitutional privilege. See Matter of 

Tsang, 14 L & N. Dec. 294 (BIA 1967). Here, the respondent is seeking 

relief for which he is not entitled as a matter of right. Suspension of 

deportation is granted as a matter of the Attorney General's discretion, 

section 244(a). The burden lies with the applicant to establish eligibility 

for the benefits he seeks. 

The same issue was present in the case of Kimm v. Rosenberg, 363 

U.S. 405 (1960). Munn sought suspension of deportation, but invoked 

his privilege against self incrimination and refused to answer the question of whether he was a member of the Communist Party. The statute 

required a showing that the applicant was not a member of the Communist Party. The Supreme Court held that Kimm, by refusing to 

answer the question, failed to establish his eligibility under the statute. 

The Court said: 

". .. an applicant for suspension `a matter of discretion and of administrative grace,' 

U.S. ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 77,1 L. ed 2d 652, 656, 'TT S. Ct. 

618 (1957), must, upon the request of the Attorney General, supply such information 

See Spevak v. Klein, 385 U.S. 511 (1967); Malloy v. Hogan, 378 U.S. 1 (1964), cases 

not cited by counsel. 

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that is within his knowledge and has a direct bearing on his eligibility under the 

statute," at page 408. 

We find that the respondent has likewise failed to establish his statutory eligibility. He must establish that his deportation would result in 

extreme hardship. The hardship the respondent alleges is related to his 

future access to financial benefits (insurance and an Arizona Industrial 

Commission award of $11.01 per month), which he alleges would not be 

available to him if he is deported, and of which he alleges need. The facts 

of record, however, suggest that he is a man of substantial means. 

Hence, he has failed to establish the hardship alleged. 

The appeal makes no reference to the immigration judge's denial of 

voluntary departure. Voluntary departure was properly denied. 

ORDER: The appeal is dismissed. 

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