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 

0014 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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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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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 proposi216 
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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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