Burden of Proof in Immigration Matters – An Advocate’s Guide
By: Lory D. Rosenberg
I. Definitions and Concepts
The burden of proof in immigration law matters refers to the duty of a party to provide probative evidence that satisfies the statutory or regulatory requirements necessary to establish a particular condition or status, such as an individual’s admissibility, inadmissibility, violation of immigration law, or qualification as beneficiary of a visa petition or discretionary relief.
There are two components of the burden of proof. The burden of production, which can shift, involves the burden of coming forward with certain evidence at different points in the proceeding. See Schaffer v. Weast, 126 S.Ct. 528, 533 (2005). The burden of persuasion, which does not shift, is the burden to convince the fact finder that the evidence produced supports a given proposition.
Presumptions in the law have an impact on the burden of proof. A presumption is a procedural rule for or against a factor, which affects the allocation of the burden of proof. For example, there is a presumption that treats all persons coming to the United States as intending immigrants. See INA § 214(b). This presumption applies to nonimmigrants seeking admission in visa categories B, E, F, J, M, O-2, P, Q, and TN. Whereas dual intent – or an intent to conform to the temporary nature of a given nonimmigrant visa designation as well as an immigrant intent — is allowed in other categories, it is the burden of those in the nonimmigrant classifications referenced above to prove that they do not have immigrant intent.
A rebuttable presumption exists when facts are established and no contrary evidence is produced, shifting the evidentiary burden of producing evidence to the party against whom the presumption is directed. See G. Weissenberger, & J. Duane, 1-301 FEDERAL EVIDENCE, note 4, § 301.1, 1-301.2 (2004). In contrast, a conclusive presumption cannot be rebutted.
The burden of proof is distinct from the standard of proof, but the two are related. The standard of proof refers to the degree of evidence required, or how much and what kind of evidence must be produced in order for the burden of proof to be met.
Best Burden Practices Tip #1
- Develop office practices to systematically:
- Review the statutory language
- Identify the burden and standard of proof
- Address & differentiate the burden of proof and presumptions in office intake forms, case preparation, and submissions
- Prepare necessary rebuttals
- Handle similar cases consistently & avoid reinventing the wheel
II. Allocation of the Burden of Proof in Removal Proceedings
Removal proceedings before an Immigration Judge are conducted to determine charges of deportability under the Immigration and Nationality Act (INA), which may be lodged against those noncitizens who have been admitted to the United States. These proceedings also are used to determine charges of inadmissibility under the INA in the cases of noncitizens who have not been admitted to the United States, but who are present and who are not classified as “arriving aliens.”
A. Burden on the Department of Homeland Security
In removal proceedings that involve charges of deportability lodged by the Department of Homeland Security (DHS or the Government), the burden is on the Government to prove by clear and convincing evidence that a noncitizen who is admitted to the United States is deportable as charged. See INA § 240(c)(3); 8 CFR § 1240.8(a). The burden also falls on the Government to establish if a lawful permanent resident (LPR) is seeking admission under INA §101(a)(13)(c). Matter of Rivens, 25 I&N Dec. 623 (BIA 2011). See Matter of Huang, 19 I&N Dec. 749, 754 (BIA 1988) (citing Woodby v. INS, 385 U.S. 276, 286 (1966)). If an LPR is not seeking admission but already is admitted, then Government bears the burden of proving the LPR removable.
The regulations provide an unusual deviation from the ordinary allocation of the burden of proof in removal proceedings, however. Invoking the concept of Immigration Judge satisfaction, the regulations allow a respondent to admit the allegations lodged by the Government, concede the charges and establish his/her own removability. In lieu of DHS meeting its burden actively, the regulations provide that the IJ may determine that removability as charged has been established by the admissions of the respondent, as long as the IJ is “satisfied that no issues of law or fact remain.” 8 CFR § 1240.10(c).
There are other burden-related complications that can arise during the pleadings phase of a removal hearing, despite the burden of proof being on the Government. For example, an attorney’s admission and concession on behalf of his/her client often is accepted by the IJ, and if later challenged by the respondent, may be treated as a strategic choice that is binding on the respondent. A respondent may challenge such a pleading, after the fact, as ineffective assistance of counsel if s/he was not informed and did not knowingly and voluntarily consent to his/her counsel alleviating the government’s burden of proof in this way.
It is important to note that the statutory language in INA § 240(c)(3)(B), Proof of convictions – In any proceeding . . . any of the following documents or records . . . shall constitute proof of a criminal conviction” refers only to proof of the fact of a conviction as defined under INA§ 101(a)(48), and not to the nature or type of conviction that is involved. The nature or type of conviction is determined according to the categorical approach, which is articulated in a series of recent Supreme Court decisions.
Best Burden Practices Tip #2
Create burden of proof checklists to
- Train interns and associates
- Help clients and staff prepare each case
Use burden of proof checklists to
- Determine the evidence your client needs – for proof & rebuttal
- Keep track of IJ and government errors
- Raise all issues to exhaust administrative remedies
- Develop an appeal outline
B. Burden on the Respondent To Prove Admissibility
In all removal proceedings, the Government must first prove alienage. 8 CFR § 1240.8 (c) provides, “Aliens [charged as being] present in the United States without being admitted or paroled” must be shown by the government to be “aliens.” Once alienage is established, the burden shifts.
A noncitizen who is an applicant for admission to the United States (also called the respondent in removal proceedings) bears the burden of proving that s/he is not inadmissible. INA § 240(c)(2). If seeking admission, an applicant must prove that s/he is clearly and beyond a doubt entitled to be admitted and is not inadmissible as charged or on any other ground under § 212. If s/he claims to be lawfully admitted, s/he must prove the prior admission by clear and convincing evidence.
In establishing this proof, the statute requires that the noncitizen shall have access to the visa or any other entry document, admission records and documents, as long as they are not considered by the Attorney General to be confidential.
It is important to note the distinction between this situation and that of an LPR under § 101(a)(13)(c), where the Government’s burden of proof is to establish that the noncitizen is seeking admission.
C. Burden on the Respondent to Prove Eligibility for Protection or Relief
The REAL ID Act of 2005 places the burden on the respondent to prove eligibility for relief or protection from removal. INA § 240(c)(4)(A). An applicant for such relief from removal must establish that s/he:
- satisfies the applicable statutory eligibility requirements; and
- where relief may be granted in the exercise of discretion, merits a favorable exercise of discretion.
The forms of protection and relief covered include asylum, withholding, CAT, cancellation, adjustment of status, voluntary departure, various waivers under 212(h), 212(i), 237(a)(1)(H), and other discretionary relief.
Best Burden Practices Tip #3
List each statutory element required to meet your client’s burden of establishing admissibility, or, eligibility for relief or protection, and
- Prepare your client to testify on each point
- Obtain evidence corroborating each factor or point of testimony
Create a standing (hard copy/digital) resource file, including
- Expert witnesses or their articles for each form of relief
- Other authoritative documentation
The burden of proving statutory eligibility for protection or relief means that the applicant must identify and prove the presence of each element of the relevant statute according to its terms in order to qualify for the relief sought.
In statutes that restrict or limit eligibility, the burden is on government to produce “some evidence” indicating a mandatory bar to relief before BIA deems the burden to shift to the respondent with respect to that bar. Matter of S-K-, 23 I&N Dec. 936, 941 (BIA 2006); Matter of R-S-H-, 23 I&N Dec. 629, 640 (BIA 2003). Some circuits, however, require a greater showing to shift the burden. 8 CFR § 1240.8(d) creates a rebuttable presumption: “If the evidence indicates any ground for mandatory denial, the applicant must prove by a preponderance of the evidence that such grounds do not apply.”
The statute provides that the applicant must submit the required information and documentation. INA § 240(c)(4)(B). The IJ will determine whether the testimony of the applicant or other witnesses “is credible, persuasive, and refers to specific facts sufficient to demonstrate that the applicant has satisfied” his/her burden of proof, and shall weigh this testimony with other evidence of record. Id. Weighing credible testimony along with other evidence of record, if the IJ determines that evidence corroborating otherwise credible testimony is needed, such evidence must be provided unless not reasonably available. Matter of L-A-C-,26 I&N Dec. 516 (BIA 2015).
There is no presumption of credibility extended to applicants filing applications for protection or relief from removal. If no adverse credibility determination is explicitly made, however, and relief is denied, the applicant has a rebuttable presumption on appeal. INA § 240(c)(4)(C).
With respect to demonstrating that a favorable exercise of discretion is warranted, factors that may be considered include favorable equities and adverse factors relating to the applicant and/or his/her family, including
- Family relationships and responsibilities
- Exceptional achievements, contributions, recognition, service
- Reform and rehabilitation from criminal misconduct
- Financial, economic, career-related and employment needs/hardships
- Educational deprivations,
- Past and present trauma, emotional difficulties
- Health, advanced age, infancy, physical illness, infirmities
- Disastrous and dangerous country conditions
The exercise of discretion requires the Immigration Judge to review all of the evidence provided. Although s/he need not give all of the evidence equal consideration or weight, the adjudicator is expected to render a reasonable decision that indicates s/he considered the evidence and did not focus solely on any one factor.
Best Burden Practices Tip #4
Write up “mini” templates while preparing each case for use in sections of future trial briefs in similar cases and appeals, as well as in responding to future NOIDs and RFEs.
Collect case citations and authorities that may apply to the similar forms of relief that your next client may seek
III. Allocation of the Burden of Proof in Visa Petition and Benefits Proceedings
The burden of proof is on the applicant in all visa petition proceedings, including those for benefits sought on I-130, I-140, I-526, I-129B and other petitions, as well as in other affirmative applications for immigration benefits that require a showing of statutory eligibility. See Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). The burden of proof may involve proof of a relationship or the satisfaction of other statutory qualifications. Applicants also bear the burden of proving eligibility for adjustment of status and for change of status, which are discretionary processes that confer an immigrant or nonimmigrant status on an applicant.
The petitioner seeking approval in a particular visa category must establish his or her qualification for the classification sought by a preponderance of the evidence called for under the terms of the particular statute. Matter of Pazandeh, 19 I&N Dec. 884, 887 (BIA 1989). The petitioner must prove by a preponderance of evidence that the beneficiary is fully qualified for the benefit sought. Matter of Patel, 19 I&N Dec. 774 (BIA 1988); Matter of Soo Hoo, 11 I&N Dec. 151 (BIA 1965). The preponderance of the evidence standard means that the applicant bears the burden of proving eligibility for the classification sought by 51%, “except where a different standard is specified by law.” Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010).
IV. Burden of Proof and Standard of Proof
The standard of proof determines if the evidence provided by an applicant in satisfaction of his or her burden is adequate to meet the applicable burden.
For example, in asylum cases, the well-founded fear standard has been articulated as amounting to a one in ten chance of persecution, or 10%. In applications seeking withholding of removal or protection under the Convention Against Torture (CAT), the standard of proof is a clear probability of a threat to life or freedom, or of torture, amounting to 51%. As illustrated above, other showings of eligibility for a benefit or status typically require a showing of a preponderance of the evidence or at least 51%. As noted previously, deportability and admissibility call for clear and convincing evidence, or admissibility that is established clearly and beyond a doubt.
Best Burden Practice Tip # 5
Be ready for burden of proof triage – after the initial hearing/when the application already has been filed, including:
- Where an unrepresented client misunderstood his/her burden of proof
- If an applicant obtains previously unavailable evidence only after a decision
- If a prior attorney mishandled the removal hearing, consider a motion under Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).
- Where there was a failure of notice in an inabsentia case.
- Where an IJ states the law correctly but applies it incorrectly. See e.g., Ward
- Holder, 733 F.3d 601 (6th Cir. 2013).
Lory D. Rosenberg serves Of Counsel to Mona Shah & Associates. For her full bio, click here: https://mshahlaw.com//lory-d-rosenberg-esq-attorney/