A-10303848
Decided by Board March 26, 1958
Discretionary relief — Burden upon alien to establish eligibility — Refusal to testify under claim of privilege justifies denial of application.
An applicant for the exercise of discretion has the duty of making a full disclosure of all pertinent information. Where, under a claim of privilege pursuant to the Fifth Amendment, such applicant refuses to testify concerning prior false claims to United States citizenship, denial of his application is justified on the ground that he has failed to meet the burden of proving his fitness for relief.
CHARGES:
Warrant: Act of 1952 — Section 241 (a) (1) [ 8 U.S.C. 1251 (a) (1)] — Immigrant — No visa.
Act of 1952 — Section 241 (a) (5) [ 8 U.S.C. 1251 (a) (5)] — Failed to furnish alien address card.
Lodged: Act of 1952 — Section 241 (a) (9) [18 U.S.C. 1251 (a) (9)] — Seaman — Failed to comply with conditions of status.
BEFORE THE BOARD
Discussion: The respondent appeals from an order entered by the special inquiry officer September 23, 1957, directing his deportation as a seaman who failed to comply with the conditions of such status [section 241 (a) (9) of the Immigration and Nationality Act; 8 U.S.C. 1251 (a) (9)]. Exceptions have been taken to the denial of discretionary relief.
The record relates to a native and citizen of China, male, married, 53 years of age, who has resided continuously in the United States since his admission at Boston, Massachusetts, as a seaman on or about November 8, 1926. He was admitted for a period not to exceed 60 days and it was his intention to reship foreign in pursuit of his calling at the time of entry. The evidence of record affirmatively establishes the respondent's deportability on the lodged charge set forth in the caption above. No exceptions have been taken to the finding of deportability.
A warrant for the respondent's arrest in deportation proceedings was issued on January 18, 1954. He was accorded a hearing under this warrant on March 25, 1954. He appealed from an order entered by the special inquiry officer October 30, 1956, directing his deportation on the stated charge. After due consideration of respondent's appeal, this Board on March 15, 1957, remanded the case to the special inquiry officer for further proceedings. We stated that the record should be made to show the results of a character investigation, evidence of the proceedings that resulted in the respondent's acquittal for failure to register as an alien, as well as evidence showing that the respondent was not indicted for violation of section 911, Title 18, United States Code. A reopened hearing was accorded respondent on September 23, 1957.
Deportability on the stated charge is conceded. Respondent excepts to the finding that he has not met the burden imposed by 8 CFR 242.16 (e), to wit, "the burden of establishing his eligibility for discretionary relief."
Respondent has resided in the United States for 31 years. He is married to a citizen of the United States. He operates a restaurant at Mt. Vernon, New York. He is the sole support of his family consisting of his wife and 2 native-born minor children. He has no criminal record and a current character investigation is favorable to him. His prosecution for failure to register as an alien resulted in an acquittal. He has not been indicted for falsely claiming United States citizenship in violation of section 911 of Title 18, United States Code.
The finding that respondent has not met the burden of establishing his eligibility for discretionary relief stems from his refusal (claiming privilege under the Fifth Amendment to the Constitution) to answer questions concerning a claim of United States citizenship on his marriage license, a claim to birth at San Francisco, the obtaining of a delayed birth certificate, and a statement regarding his citizenship when answering a Selective Service questionnaire. Counsel argues, in substance, that since respondent's false claim to citizenship has been subjected to full inquiry by both the prosecuting and judicial branches of the Federal Government, there is no basis in law for an administrative attack upon their conclusion and, therefore, respondent's refusal to answer questions concerning his claim of citizenship is not material to a disposition of the issue of discretionary relief.
Counsel, in other words, urges that respondent has met the burden imposed with substantial evidence that he is a person of good moral character and not of a criminal class. He maintains that there is nothing in the statute nor regulations which requires an alien to involuntarily incriminate himself in order to establish eligibility for discretionary relief. This is so, he argues, because the ample documentary evidence of respondent's claim to citizenship, found in the record, is self-explanatory. A fortiori, since this Board has held that a false claim to citizenship does not involve moral turpitude, his refusal to answer questions on this subject is superfluous and immaterial.
We have carefully reviewed the authority cited by counsel in support of his position. They are not dispositive of the issue here under consideration and are distinguishable. The alien in Matter of K---- ( supra),fn1 made a full disclosure of his false claim to citizenship and was convicted by a Federal court. We held that he was not precluded from establishing statutory eligibility for voluntary departure by reason of the conviction.
Matter of K----, A-6092065, 3 IN Dec. 69, 71 (B.I.A., 1947); Matter of C---- Y---- C----, A-5124278, 3, I. N. Dec. 623 (B.I.A., 1950); Matter of G---- M----, A-8948706, Int. Dec. No. 762 (Atty. Gen. 1956).
The issue in Matter of C---- Y---- C---- ( supra),fn1 was whether a subsequent admission of perjury would support an order of deportation where there has been a judicial adjudication of the same charge which resulted in a dismissal. The alien in that instance also made a full disclosure of his false claim to citizenship. The issue of discretionary relief was not before us because the alien requested that deportation be deferred to permit naturalization.
Matter of G---- M---- ( supra),fn1 applies the rules set forth in the Solicitor General's opinion in Matter of J----, 56038/559, 2 IN Dec. 285 (1945), concerning the "admission of a crime," to that portion of section 212 (a) (9) ( 8 U.S.C. 1182 (a) (9)) of the 1952 act which provides for an alien's exclusion if he admits the "essential elements of a crime" involving moral turpitude. Since Matter of G---- M---- was an exclusion proceeding, the issue of discretionary relief was not involved. However, the opinions of this Board and the Immigration Service are clear that the alien made a full disclosure of a false claim to citizenship.
Unlike the cases relied upon by counsel we are here concerned with an administrative proceeding in which the Attorney General may exercise his discretion as distinguished from a finding of deportability or statutory eligibility. The question presented is whether an alien may refuse to answer pertinent questions on the ground that his answers may incriminate him thereby limiting the area of the Attorney General's inquiry. We agree with the special inquiry officer that the burden is upon the alien to establish his eligibility for discretionary relief and where he limits the area of inquiry by claiming privilege it cannot be found that he has met this burden. We have said that in the exercise of discretion an alien's refusal to answer questions on the ground that his answers might incriminate him does not indicate that he is a desirable resident ( Matter of M----, A-2669541,
5 IN Dec. 261 (B.I.A., 1953)). Our position was sustained by the Supreme Court ( 349 U.S. 302 (1955)).
Sections 244 (a) and (e) of the Immigration and Nationality Act ( 8 U.S.C. 1254) specifically provide that the Attorney General " may, in his discretion," suspend deportation or grant voluntary departure. An alien seeking a favorable exercise of discretion cannot limit the inquiry to the favorable aspects of the case and reserve the right to be silent on the unfavorable aspects. An exercise of discretion cannot be based upon speculation and a full disclosure of all pertinent information is inherent to an act of grace by the sovereign. It is our considered opinion that the action taken by the special inquiry officer is warranted under the circumstances. We may add that if respondent had testified fully in these proceedings and a ground of criminal inadmissibility developed his case would have been susceptible to consideration for adjustment under section 5 of Public Law 85-316 enacted September 11, 1957. The appeal will be dismissed.
Order: It is directed that the appeal be and the same is hereby dismissed.