MATTER OF MARQUES In Deportation Proceedings A-17241244 Decided by Board March 11, 1975 When a respondent 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. CHARGE: Order: Act of 1952-Section 241(a)(9) [8 U.S.C. 1251(a)(9)]—failed to comply with conditions of nonimmigrant status. ON BEHALF OF RESPONDENT: Galen H. Wilkes, Esquire 3550 N. Central Ave., Suite 404 Phoenix, Arizona 85012 ON BEHALF OF SERVICE: 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 nonimmigrant 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. 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. 1 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, 1967). Counsel's argument suggests that the respondent is being penalized for invoking the Fifth Amendment. There 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 I. & 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). Kimm 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, 77 S. Ct. 618 (1957), must, upon the request of the Attorney General, supply such information 1 See Spevak v. Klein, 385 U.S. 511 (1967); Malloy v. Hogan, 378 U.S. 1 (1964), cases not cited by counsel. 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. MATTER OF MCDONALD AND BREWSTER In Exclusion Proceedings A-13461595 A-20655555 Decided by Board March 13, 1975 (1) Applicants who entered this country in possession of six marijuana cigarettes brought for personal use were not excludable under section 212(a)(23) of the Immigration and Nationality Act because there had been no conviction for illegal possession of marijuana and because the evidence did not sustain a finding of excludability on that basis. (2) Applicants were not excludable under section 212(a)(27) of the Act on the basis of the possession of the marijuana cigarettes because while the importation of the marijuana cigarettes may be prohibited by law, it is not an activity which is inimical to the internal security of the United States, and thus section 212(a)(27) is inapplicable. (3) Mitigated forfeiture pursuant to 19 U.S.C. 1595a and 21 U.S.C. 952 is a civil, not a criminal penalty and thus does not invoke the provisions of section 212(a)(23) of the Act. EXCLUDABLE: Act of 1952-Section 212(a)(23) [8 U.S.C. 1182(a)(23)]—Illicit traffic in marijuana. Act of 1952-Section 212 (a)(27) [8 U.S.C. 1182(a)(27)]—An alien seek ON BEHALF OF APPLICANTS: Pro se ing to enter the United States to engage in activities prejudicial to the public interest or welfare, safety, or security of the United States (both applicants). ON BEHALF OF SERVICE: The female applicant appeals from the December 5, 1973 decision of the immigration judge finding her excludable under section 212(a)(27) of the Immigration and Nationality Act. The male applicant was found excludable by the same immigration judge on the same ground in a separate hearing on the same date but waived his right to appeal. The immigration judge certified his case to this Board for review pursuant to 8 CFR 3.1(c). The appeal of the female applicant will be sustained, and the decision of the immigration judge in the case of the male applicant will be reversed. The two applicants are natives and citizens of Canada. The female applicant is a commuter, employed in Detroit, Michigan. On November 30, 1973 the applicants attempted to enter the United States together by automobile just to spend the evening. They were held for secondary inspection, at which time the inspector found six marijuana cigarettes belonging to the male applicant in the possession of the female applicant. The male applicant paid $100 in mitigated forfeiture pursuant to 19 U.S.C. §1595a (1965) 1for violation of 21 U.S.C. §952 (1972), a provision prohibiting the importation of controlled substances, including marijuana. This was a civil sanction and not a criminal conviction.2 United States v. One (1) 1969 Buick Riviera Automobile, 493 F.2d 553 (C.A. 5, 1974). Both applicants were held in exclusion proceedings. Each applicant was originally charged under section 212(a)(23) of the Act on suspicion that he was or had been an illegal trafficker in marijuana. However, in each case the immigration judge concluded that the applicant was not excludable under that subsection of the statute, as there had been no conviction, and the charge of illicit traffic in marijuana was not sustained by evidence of record. We agree with those conclusions. Each applicant was subsequently charged with being excludable under section 212(a)(27). That subsection provides for the exclusion of "[a]liens who the consular officer or the Attorney General knows or has reason to believe seek to enter the United States solely, principally, or incidentally to engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety, or security of the United States." The immigration judge found them to be excludable under that subsection. We disagree. The Service position is that the language of subsection 212(a)(27) is very similar to that of 21 U.S.C. 801(2), in which Congress made the following finding and declaration: "The illegal importation, manufacture, distribution, and possession and improper use of controlled substances [marijuana among them] have a substantial and detrimental effect on the health and general welfare of the American people." Section 952 of Title 21, U.S.C., under which the male applicant was fined, makes reference to the subchapter in which the above declaration is contained. We see a difference between the "health and general welfare of the American people" 3 and the "welfare, safety, or security of the United States." The latter language, coming from the Immigration and Nationality Act, refers not to the personal health and welfare of individuals or groups of persons but to the welfare and security of the United States. The Senate and House Committees which recommended the 1 Tariff Act of 1930, as amended. 2 The criminal penalties for violation of 21 U.S.C. §952 (1972) are set forth in 21 U.S.C. §960(a) and (b) (1972). 3 21 U.S.C. 801(2) * Section 212(a)(27), Immigration and Nationality Act |