Introduction

The burden of proof and the standard of proof in section 240 removal proceedings differs based on whether the respondent is an “applicant for admission” or someone who has previously been admitted and has been charged as being removable. If the respondent is facing inadmissibility charges as an applicant for admission, the respondent bears the burden of proving that he or she is “clearly and beyond doubt” admissible. If the respondent is charged as removable, the Government bears the burden of establishing that the respondent is removable through either clear and convincing or clear, unequivocal, and convincing evidence (depending on the jurisdiction). For this reason, a respondent charged as being inadmissible as an applicant for admission is in a less favorable position in section 240 removal proceedings than is a respondent charged as being removable.

In this article, we will examine the respondent’s burden of proof in section 240 removal proceedings when he or she is charged as being inadmissible to the United States. We discuss the burden of proof for applicants for admission outside of section 240 proceedings in a separate article [see article].

Statutory and Regulatory Background

In order to understand the burden of proof for a respondent charged with inadmissibility in section 240 removal proceedings, we must first look to the Immigration and Nationality Act (INA).

If the alien is an “applicant for admission” rather than an alien who has previously been admitted into the United States, section 240(c)(2)(A) places the burden on the alien to establish that he or she “is clearly and beyond doubt entitled to be admitted and not inadmissible under section 212 of [the INA].” There is no provision for the burden of proof shifting to the Government.

Our article will focus on the above provision in section 240(c)(2)(A), which covers applicants for admission charged with inadmissibility in section 240 removal proceedings. However, before continuing, it is worth examining three other provisions for a fuller understanding of the subject.

Before the issue of the alien’s burden comes up, 8 C.F.R. 1240.8(c) makes clear that “[i]n the case of a respondent charged as being in the United States without being admitted or paroled, the [Department of Homeland Security] must first establish the alienage of the respondent.” Thus, the Government bears the initial burden of establishing that an alien accused of being present without having been admitted or paroled is actually an alien. Once the Government sustains its burden of establishing the alienage of the respondent, the burden then shifts to the respondent to prove admissibility.

Section 240(c)(2)(B) states that the respondent may, in lieu of establishing that he or she is clearly and beyond doubt entitled to be admitted and is not inadmissible, establish “by clear and convincing evidence that [he or she] is lawfully present in the United States pursuant to a prior admission.” In endeavoring to establish that he or she is lawfully present in the United States after having been previously admitted, the respondent “shall have access to [his or her] visa or other entry document, if any, and any other records or documents, not considered by the Attorney General to be confidential, pertaining to the alien’s admission or presence in the United States.” Under section 291 of the INA, “[i]n any removal proceeding … against any person, the burden of proof shall be upon such person to show the time, place, and manner of entry into the United States…” If the alien is not an applicant for admission, he or she may still be, depending on the facts of the case, charged as removable under one of the section 237 deportability grounds. However, where an alien is charged as deportable, section 240(c)(3)(A) places the burden of proof on the Government to “establish[] by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable.” For this reason, in terms of the burden of proof and applicable standard only (that is, not accounting for the facts of any particular case), an alien charged as deportable under section 237 is in a more favorable position in removal proceedings than is an alien charged as an arriving alien under section 212.

Determining Whether an Alien is an Applicant for Admission

Whether the burden of proof is upon the alien or the Government in removal proceedings depends on whether the alien is an applicant for admission. Section 240(c)(2)(B) makes clear that the alien shall have the opportunity to endeavor to prove that he or she is present in the United States after having been lawfully admitted. The Board has noted that “[i]n order to ascertain the appropriate burden of proof in removal proceedings, the Immigration Judge must determine whether the alien is an ‘applicant for admission’ under section 240(c)(2)(A) of the Act or ‘lawfully present … pursuant to a prior admission’ under section 240(c)(2)(B).” Matter of Rosas-Ramirez, 22 I&N Dec. 616, 622 (BIA 1999) [PDF version]. The United States Court of Appeals for the Third Circuit noted that the “clearly and beyond doubt” standard “does not apply to the predicate question of whether the alien is an applicant [for admission].” Doe v. Attorney General of U.S., 659 F.3d 266, 271 (3d Cir. 2011) [PDF version].

The immigration judge errs if he or she applies the incorrect burden of proof. In one unpublished decision, the Board remanded to the immigration judge after the immigration judge placed the burden of proof on the Government to establish through clear and convincing evidence that an arriving alien was deportable. IN RE: DANIEL AISPURO, 2013 WL 5872177 (BIA, Oct. 21, 2013). The Board noted that under statute, “the respondent bears the burden of establishing that he is clearly and beyond doubt entitled to be admitted into the United States and is not inadmissible under section 212…” Id.

The United States Court of Appeals for the Fourth Circuit explained the significance of the difference in burdens of proof by comparing the inadmissibility provision (section 212(a)(6)(C)(ii)(I)) with the deportability provision for false claims to U.S. citizenship (237(a)(3)(D)(i)): “Although the false claim bar[s] … contain identical legal standards, they differ with respect to the burden of proof. An alien bears the burden of proving admissibility, and therefore must prove ‘clearly and beyond doubt’ that the false claim bar does not apply … The burden of proof under [section 237(a)(3)(D)(i)] falls on the DHS, which must establish, by clear and convincing evidence, that the alien is deportable” for false claims to U.S. citizenship. Dakura v. Holder, 772 F.3d 994, 998 n.7 (4th Cir. 2014) [PDF version]. That is, although the inadmissibility and deportability grounds for false claims to U.S. citizen cover the same conduct, the burden of proof is different depending on whether the alien is treated as an applicant for admission or as a deportable alien.

The terms “admission” and “admitted” are defined in section 101(a)(13)(A) of the INA as meaning “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” Section 101(a)(13)(B) excludes from the ambient of the terms “admission” and “admitted” aliens who are paroled under section 212(d)(5) and aliens who are permitted to land in the United States temporarily as alien crewmen. The United States Court of Appeals for the Ninth Circuit concluded in one case that the immigration judge erred when he placed the burden of proof on the government where the respondent was a parolee. Altamirano v. Gonzales, 427 F.3d 586, 591 (9th Cir. 2005) [PDF version].

The most complicated cases often arise with regard to lawful permanent residents. Section 101(a)(20) of the INA defines the term “lawfully admitted for permanent residence” as meaning “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.” Section 101(a)(13)(C) provides that returning lawful permanent residents are generally not regarded as seeking admission except under six specified circumstances. The Board has held that where a lawful permanent resident is accused of having been inadmissible at the time of entry or adjustment of status, but does not fall under one of the six statutory exceptions in section 101(a)(13)(C), the alien cannot be charged as inadmissible under section 212. Matter of Pena, 26 I&N Dec. 613, 619 (BIA 2015) [PDF version]. However, in such a case, the Government may charge the alien as removable under section 237(a)(1)(A) for having been inadmissible at the time of entry or adjustment of status. Id.

The question of when a lawful permanent resident is considered to be seeking admission is a complex area of immigration law which we discuss fully in a separate article [see article].

In this article, we will continue to focus on the burden of proof in removal proceedings after the respondent has been found to be an applicant for admission.

Respondent’s Burden Never Shifts

Neither the statute nor regulations provides any provision for the shifting of the burden of proof from the respondent to the Government in removal proceedings involving inadmissibility charges.

In 2008, the U.S. Attorney General held that in removal proceedings involving an applicant for admission, “the burden is on respondent to establish ‘clearly and beyond doubt’ that he is ‘not inadmissible.’” Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2007) [PDF version]; vacated on other grounds by Matter of Silva-Trevino, 26 I&N Dec. 550 (A.G. 2015). The Board held that where the respondent is an applicant for admission charged with inadmissibility under section 212(a)(2)(A)(i)(I) (crime involving moral turpitude), “[t]he respondent bears the burden of establishing … that she is not inadmissible to the United States under section 212(a)(2)(A)(i)(I) of the [INA]…” Matter of Pinzon, 26 I&N Dec. 189, 192 (BIA 2013) [PDF version]. In Matter of Pinzon , the Board held that the respondent “must show that she has not been convicted of a crime involving moral turpitude.” Id.

Several precedent decisions dealing with former exclusion proceedings addressed the alien’s non-shifting burden of proof when charged as being excludable. For example, the Board held in the exclusion proceeding context that “this burden never shifts, but is always on the applicant.” Matter of Arthur, 16 I&N Dec. 558, 560 (BIA 1978) [PDF version]. The Board first reached this conclusion in 1949. Matter of M-, 3 I&N Dec. 777, 781 (BIA 1949). The United States Court of Appeals for the Second Circuit recognized that, when facing exclusion proceedings, “the burden was on the [alien] to show that he did not belong to any of the excluded classes.” U.S. ex rel. De Sousa v. Day, 22 F.2d 472, 475 (2d Cir. 1927) [PDF version].

The Board has held that an alien applying for adjustment of status in removal proceedings has the burden of establishing that he or she is clearly and beyond doubt not inadmissible. Matter of Bett, 26 I&N Dec. 437, 440 (BIA 2014) [PDF version]. The Board distinguished the burden for seeking adjustment of status in proceedings from that for a deportable seeking other forms of relief from removal in proceedings, where an alien may instead be required to establish that he or she is not barred from relief due to inadmissibility by a preponderance of the evidence. IN RE: EZRA KIBICHII BETT, 2015 WL 3488716 (BIA, Apr. 17, 2015); distinguished from Matter of Espionza, 25 I&N Dec. 118, 121 (BIA 2009); abrogated on other grounds by Mellouli v. Lynch, 135 S.Ct. 1980 (2015). The Board reached the same result regarding the clearly and beyond doubt standard for adjustment of status in proceedings in a later case as well. Matter of Richmond, 26 I&N Dec. 779, 781 n.4 (BIA 2016) [PDF version] [see article]. However, it is worth noting that in order to move forward with an adjustment application in proceedings, an alien may only be required to show that he or she is not inadmissible on non-waivable grounds. Bazzi v. Holder, 746 F.3d 640, 643 (6th Cir. 2013) [PDF version].

The United States Court of Appeals for the Second Circuit addressed the burden in a case where an alien who had been found to be removable was subsequently denied adjustment of status in proceedings on the basis that he had failed to prove, clearly and beyond doubt, that he was not inadmissible for having made a false claim to U.S. citizenship. Crocock v. Holder, 670 F.3d 400 (2d Cir. 2012) [PDF version]. Here, the Second Circuit concluded that “the burden of demonstrating admissibility is squarely on [the alien].” Crocock, 670 F.3d at 403. Because there was evidence in the form of the alien’s Form I-9 to suggest that he had falsely claimed to be a U.S. citizen or national, the Second Circuit concluded that “Crocock was required to prove a negative-that he did not falsely claim United States citizenship.” Id. The Second Circuit concluded that the Board had not erred in concluding that the alien had failed to sustain is burden of establishing admissibility.

The 2007 edition of the Immigration Judge Benchbook noted that if the alien establishes both that he or she is not inadmissible and entitled to admission, the burden shifts to “DHS … to show by ‘clear and convincing evidence’ that the person is deportable.”

Appellate Review and Requirement that Inadmissibility Finding Must Have Evidentiary Basis

It is important to note that a finding of inadmissibility must have an evidentiary basis. The Board held in the exclusion proceedings context that a finding of inadmissibility “must be based on reasonable, substantial, and probative evidence.” Matter of Rico, 16 I&N Dec. 181, 185 (BIA 1977) [PDF version]. Regarding judicial review, the Supreme Court of the United States held that the decision to find that an alien was ineligible for asylum “must be upheld if ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) [PDF version]. The decision “can be reversed only if the evidence presented by [the alien] was such that a reasonable factfinder would have to concluded that the requisite fear of persecution existed.” Id. The Ninth Circuit has held that where the Board’s finding an alien is inadmissible for making a false claim to U.S. citizenship is supported by “substantial evidence,” the decision should be affirmed. Blanco v. Mukasey, 518 F.3d 714, 720 (9th Cir. 2008) [PDF version].

The United States Court of Appeals for the Eleventh Circuit reviewed a decision finding that an alien was inadmissible under section 212(a)(2)(C) because there was a reason to believe that he was an illicit trafficker in controlled substances. Garces v. U.S. Atty. Gen., 611 F.3d 1337 (11th Cir. 2010) [PDF version]. The Eleventh Circuit held that although the alien had the burden of proof in removal proceedings to prove clearly and beyond doubt that there was not inadmissible on trafficking grounds, its task on appeal was “to determine whether the BIA’s decision is supported by reasonable, substantial, and probative evidence.” Garces, 611 F.3d at 1346. The Eleventh Circuit held that “[b]urdens of proof notwithstanding, a finding of inadmissibility must be based on something more than the alien’s failure to prove a negative.” Id.

Thus, while the applicant for admission always carries the burden of proof to establish that he or she is not inadmissible in removal proceedings, the charges must still be “based on reasonable, substantial, and probative evidence.” In other words, for the alien’s burden to adhere, there must be some reason to believe that he or she is inadmissible on some particular ground. The burden does not require the alien to prove clearly and beyond doubt that he or she is not inadmissible under grounds for which there is no reason to believe that he or she is inadmissible. Regarding section 212(a)(2)(C), the Eleventh Circuit noted that “[w]e do not require every alien seeking admission to the United States to produce evidence proving clearly and beyond doubt that he is not a drug trafficker, unless there is already some other evidence-some ‘reason to believe’-that he is one.” Id. In the context of exclusion proceedings, the Board held that where there is no evidence to indicate that the alien is inadmissible under the ground charged, the alien should be found to have sustained his or her burden. Matter of D-L- & A-M-, 20 I&N Dec. 409, 412 (BIA 1991) [PDF version].

The United States Court of Appeals for the Ninth Circuit found that the Government does have an initial burden of proof where it believes that an alien is inadmissible but the alien has a visa. Abufayad v. Holder, 632 F.3d 623 (9th Cir. 2011) [PDF version]. Abufayad involved section 212(a)(3)(B)(i)(II) (where the Attorney General or Secretary of DHS knows or has reasonable ground to believe that the alien is likely to engage after entry in terrorist activity). Here, the alien had a visa, which “constitute[ed] prima facie evidence of admissibility.” Abufayad, 632 F.3d at 630. At this point, the Ninth Circuit held that “the burden shifts to the Government to submit ‘some evidence’ that [the alien] is not admissible under the charged grounds.” Id. The Ninth Circuit made clear that the Government does not bear this initial burden if the alien does not have a valid visa. Id. at 630 n.3. Where the Government meets its initial burden, “the applicant bears the burden of rebuttal in proving that he is ‘clearly and beyond doubt … not inadmissible.’” Id. at 630. The Ninth Circuit ultimately concluded that the BIA did not err in finding that the Government sustained its initial burden by “introducing ‘some evidence’ of [the alien’s] inadmissibility.” Id. at 631.

Well before the Ninth Circuit decision in Abufayad, the Board held “that once an alien has presented a prima facie case of admissibility, the service has the burden of presenting some evidence which would support a contrary finding.” Matter of Walsh and Pollard, 20 I&N Dec. 60, 63 (BIA 1989) [PDF version].

Finally, notwithstanding the alien’s burden, the Board has held that any finding of inadmissibility that would potentially render the alien permanently inadmissible to the United States must be subject to close scrutiny. Matter of Healy and Goodchild, 17 I&N Dec. 22, 29 (BIA 1979) [PDF version]. Thus, the Board, and appellate courts, may subject inadmissibility findings for which an alien has no prospect for future relief to higher scrutiny than findings of inadmissibility on less serious grounds.

Placement of Burden can be, but is Not Always, Decisive

In many cases, the placement of the burden of proof may be decisive. While we will examine the “clearly and beyond doubt” standard and discuss in brief how it compares to the Government’s burden of establishing deportability in section 240 proceedings, in many cases the placement of the burden is arguably more significant than the particularities of the different standards.

The significance of the non-shifting burden was highlighted by an interesting decision of the United States Court of Appeals for the Eighth Circuit. The issue was again whether the alien had sustained his initial burden of proving clearly and beyond doubt that he had not made a false claim to U.S. citizenship. Kirong v. Mukasey, 529 F.3d 800 (8th Cir. 2008) [PDF version]. The Board found the alien removable. However, in the final order of removal, the Board concluded that “the evidence in this case, at best, is equivocal as to whether [the alien’s] attestation [on the Form I-9] involved a claim of citizenship or nationality.” Kirong, 529 F.3d at 805. If the alien could establish that he only meant to claim that he was a national and not a citizen, he would not be inadmissible. The Eighth Circuit added in a footnote that the Board had held that “the DHS did not carry its burden of proving by clear and convincing evidence that [the alien] falsely represented himself as a United States citizen.” Id. at 805 n.2. However, because the burden of proof rested in this case with the alien, the Eighth Circuit concluded that “substantial evidence supports the BIA’s finding that [the alien] did not satisfy his burden of proving clearly and beyond doubt that he did not falsely represent himself as a United States Citizen…” Id. at 805. This case highlights that the placement of the burden of proof can be decisive in cases where the evidence for and against a charge is “equivocal.” Here, based on the Board’s conclusions, the Government would have been unable to sustain the burden of establishing removability by clear and convincing evidence had the alien been charged as removable rather than inadmissible. However, because the burden was on the alien, the alien was unable to prove clearly and beyond doubt that he was not inadmissible.

Addressing the lower “preponderance of the evidence” standard (more likely than not) in the context of former exclusion proceedings, the Board held that “where the evidence is of equal probative weight, the party having the burden of proof cannot prevail.” Matter of Rivero-Diaz, 12 I&N Dec. 475, 476 (BIA 1967) [PDF version].

Yet, in other cases, the placement of the initial burden of proof may make no difference. For example, the United States Court of Appeals for the First Circuit found it unnecessary to resolve the issue in one case: “In the end, though, nothing turns on whether the alien … bore the burden of establishing clearly and beyond doubt that he was not inadmissible or whether the government bore the burden; the outcome of the petition is the same. Even on the standard most favorable to the alien-that the government bore the burden-the [immigration judge’s] decision was amply supported by substantial evidence…” Valenzuela-Solari v. Mukasey, 551 F.3d 53, 56 (1st Cir. 2008) [PDF version]. In a separate case, the Ninth Circuit found that, although the immigration judge had improperly placed the burden of proof on the government where the alien had been paroled into the United States under section 212(d)(5), “the improper allocation of the burden of proof does not affect our ultimate disposition of the case.” Altamirano, 427 F.3d at 591. The United States Court of Appeals for the Fifth Circuit denied an alien’s petition for review of the Board’s decision that the Government had sustained its burden of proof that he was inadmissible while noting that both the immigration judge and the Board had incorrectly placed the burden of proof on the Government. Soriano v. Gonzales, 484 F.3d 318, 320 n.1 (5th Cir. 2007) [PDF version].

The resolution of each case depends on the specific facts involved. In Kirong, the Eighth Circuit’s decision hinged entirely on which party had the burden of proof. However, in Valenzuela-Solari, Altamirano, and Soriano, the allocation of the burden of proof would not have altered the outcome of the cases. In general, the less clear the evidence is for and against an alien’s inadmissibility or removability, the more important the allocation of the initial burden of proof is. The more strongly the evidence weighs in one direction or another, the less important the question is of which party bears the initial burden of proof. However, as a general rule, the party with the initial burden of proof has a more difficult task than the party lacking the burden.

Standard of Proof

The Board has, on at least one occasion, recognized that “clearly and beyond doubt” is a higher standard than preponderance of the evidence. Matter of Aceijas-Quiroz, 26 I&N Dec. 294, 301 (BIA 2014) [PDF version]. The former Immigration and Naturalization Service (INS) has held in a precedent decision that an alien establishes a fact by the “preponderance of the evidence” if he or she establishes that the fact is “probably true.” Matter of E-M-, 20 I&N Dec. 77, 80 (Comm. 1989) [PDF version] [see article]. The INS distinguished “preponderance of the evidence” from “beyond a doubt” in that “the director can still have doubts but, nevertheless, the applicant can establish eligibility.” Id. at 79.

The “clearly and beyond doubt” language has striking similarity to the “beyond a reasonable doubt” standard in criminal proceedings. In one published decision, the Ninth Circuit considered an appeal by an applicant for admission who had been ordered removed based on a finding that he was inadmissible for having made a false claim to U.S. citizenship. Valadez-Munoz v. Holder, 623 F.3d 1304 (9th Cir. 2010) [PDF version]. In order to sustain his burden of proving that he was not inadmissible for making a false claim to U.S. citizenship, the alien cited to three Ninth Circuit decisions wherein the Government had the burden of proving guilt beyond a reasonable doubt and the Court reversed on sufficiency of the evidence grounds each judgment of conviction for falsely representing oneself as a U.S. citizen, wherein the Government had the burden of proving guilt beyond a reasonable doubt. Valdez-Munoz, 623 F.3d at 1309. The Ninth Circuit found the reliance on the criminal cases unavailing for several reasons. First, because the three criminal cases “were criminal prosecutions where the defendant had to be found guilty beyond a reasonable doubt,” the Ninth Circuit explained that it was “very concerned about the quality of the evidence” presented by the Government. Id. However, in the civil immigration context where the alien was charged with inadmissibility, “the burden of persuasion is reversed for, again, the alien has the burden of proving that he is not inadmissible.” Id. Therefore, instead of the Government having the burden to submit evidence to prove guilt beyond a reasonable doubt, the alien had the burden of proving that he was “clearly and beyond doubt” not inadmissible for having made a false claim to U.S. citizenship.

The United States Court of Appeals for the District of Columbia Circuit described the “clearly and beyond doubt” standard in immigration court as being “much more favorable to the Government” than the “beyond a reasonable doubt” standard employed by military commissions (specifically with reference to potential inadmissibility under section 212(a)(3)(B)(i)(I)). Hamdan v. U.S., 696 F.3d 1238, 1255 (D.C. Cir. 2012) [PDF version]; overruled on other grounds by Al Bahlul v. U.S., 767 F.3d 1 (D.C. Cir. 2014). It is perhaps worth noting that the Hamdan decision was authored by then-Judge Brett Kavanaugh, now a sitting Justice of the Supreme Court.

In both of the aforementioned cases, the courts not only assessed the plain language of “clearly and beyond doubt” vs “beyond a reasonable doubt,” but also considered which party had the burden of proof. Regardless of the particularities of the terms, the most pertinent point is that in criminal proceedings, the defendant is presumed innocent and the Government must prove his or her guilt beyond a reasonable doubt, whereas in section 240 proceedings involving inadmissibility, the alien bears the burden of establishing that he or she is clearly and beyond doubt not inadmissible and entitled to admission.

We will focus on comparing the pertinent standards for arriving aliens and deportable aliens in removal proceedings in a separate article [see article]. However, the issue is worth examining in brief here. Under section 240(c)(3)(A) of the INA, the Government bears the burden of establishing that an alien is deportable under section 237 of the INA through “clear and convincing evidence.” However, the Supreme Court of the United States held that the standard in former deportation proceedings was “clear, unequivocal, and convincing evidence.” Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 286 (1966) [PDF version]. There is currently a disagreement among the circuits about which standard applies and what the substantive difference between the standards is. The Ninth Circuit has taken the difference that “clear and convincing” and “clear, unequivocal, and convincing” are identical for all intents and purposes. Mondaca-Vega v. Lynch, 808 F.3d 413, 420 (9th Cir. 2015) (en banc) [PDF version]. Notably given our comparison of “beyond a reasonable doubt” and “clearly and beyond doubt,” the Ninth Circuit rejected the idea that “clear, unequivocal, and convincing” could mean a more rigorous standard than “beyond a reasonable doubt.” Id. at 420-421. However, other Circuits, such as the Sixth, have held that the “clear, unequivocal, and convincing” standard remains the applicable standard and that it represents “a more demanding degree of proof than the ‘clear and convincing’ standard.” Ward v. Holder, 733 F.3d 601, 605 (6th Cir. 2013) [PDF version]. The Board has, in the context of former deportation proceedings, held that “clear, unequivocal, and convincing” is a higher standard than “clear and convincing” and that it “require[s] that the evidence be unequivocal or of such a quality as to dispel all doubt.” Matter of Patel, 19 I&N Dec. 744, 783 (BIA 1988) [PDF version]. The Supreme Court had held that the standard requires that the evidence “does not leave the issue in doubt.” Schneiderman v. U.S., 320 U.S. 118, 135 (1943) [PDF version].

The Board has no directly addressed which standard applies in removal proceedings, although it has referenced the “clear and convincing” standard in several recent precedent decisions. See e.g., Matter of Chairez, 26 I&N Dec. 819, 825 (BIA 2016) [PDF version] [see article]; Matter of H. Estrada, 26 I&N Dec. 749, 754 (BIA 2016) [PDF version] [see article]. In 2010, Board Member Roger Pauley wrote an unpublished opinion wherein he took the position that “there is no indication that IIRIRA intended to perpetuate the [clear, unequivocal, and convincing] standard, to the extent it includes the term ‘unequivocal.’” IN RE: RAMIRO VALERO-PENA, 2010 WL 2224532 (May 20, 2010) (Pauley, concurring). He added that “[t]he practical difference, if any, between the two tests is, however, ephemeral and elusive at best…” Id. The latter point made by Board Member Pauley was echoed by the conclusion reached years later by the en banc Ninth Circuit.

By the plain language of the terms, “clearly and beyond doubt” suggests a higher standard than “clear, unequivocal, and convincing,” much less “clear and convincing.” Considering that the courts are not all in accord on what standard is applied in deportability cases, and in light of the fact that “clearly and beyond doubt” standard has not been as thoroughly examined as the more commonly-used standards, it is difficult to delineate the exact parameters of the standard other than to note that “clearly and beyond doubt” is, by its own terms, more stringent. As we noted in the previous section, the question of which party bears the burden of proof is often, if not always, more pressing than whether the standard is “clearly and beyond doubt” or one of the two variations of “clear and convincing.”

One tangentially related issue may indirectly shed light on the “clearly and beyond doubt” standard. Where an alien who has been admitted is charged with having procured his admission or adjustment of status through fraud or willful misrepresentation of a material fact, he or she must be charged under the deportability provision in section 237(a)(1)(A) of the INA. Matter of Pena, 26 I&N Dec. at 619. This means that even though the alien is charged with having been inadmissible at the time of entry or adjustment, the burden rests with the Government to establish the alien’s deportability. The Board addressed the issue in the deportability context in Matter of Bosuego. Matter of Bosuego, 17 I&N Dec. 125 (BIA 1979, 1980) [PDF version]. Applying the Woodby standard, the Board held that the Government had the initial burden of establishing that the alien’s misrepresentation was material. Id. at 131. However, “after the [Government] has shown that facts possibly justifying the denial of a visa or admission to the United States would have likely been uncovered and considered but for the misrepresentation is the alien is required … to establish that no proper determination of inadmissibility could have been made by the consul or the inspecting immigration officer.” Id. While noting that this rule applies specifically to cases where an alien is charged with having procured his or her admission or adjustment through fraud or willful misrepresentation, the language used to describe the alien’s burden once the Government meets its initial burden appears to be in accord with the “clearly and beyond doubt” standard. Matter of Bosuego requires the respondent to show that he or she could not have been found to be inadmissible at the time of entry or adjustment. When an alien is actually charged as being inadmissible and placed in proceedings, the alien must show clearly and beyond doubt that he or she is not inadmissible, or in effect, that there is no way that an inadmissibility finding could be sustained. The Board recently reaffirmed its conclusion in Matter of Bosuego. Matter of D-R-, 27 I&N Dec. 105, 113 (BIA 2017) [PDF version] [see article].

The Second Circuit addressed an interesting issue regarding the applicable standards in Crocock. In that case, the alien argued that the “clearly and beyond doubt” standard was too harsh and that the Board appeared to have simultaneously applied the lower “preponderance of the evidence” standard. Crocock, 670 F.3d at 403 n.3. The Second Circuit explained that the Board had instead held that the alien had necessarily failed to clearly and beyond doubt establish that he was not inadmissible for having made a false claim to U.S. citizenship because he had failed even to demonstrate by a preponderance of the evidence that he had not held himself out to be a U.S. citizen. Id. Regarding the alien’s challenge, the Board held that “he appears to confuse the substantive standard for establishing admissibility with the evidentiary burden that he has satisfied the applicable substantive criteria.” Id. In short, the Second Circuit found that the issue of whether an alien satisfies his evidentiary burden on a specific point is separate from whether he or she establishes clearly and beyond doubt that he or she is not inadmissible. Requiring an alien to demonstrate one point or several points by a preponderance of the evidence does not change the fact that the alien must prove that he or she is clearly and beyond doubt not inadmissible.

Finally, it is worth examining a case where the language “clearly and beyond doubt” appeared in another provision of the immigration laws. In 1959, the Board considered an airline’s appeal of an administrative penalty for having presented a passenger for admission in transit without a visa (TRWOV) when the passenger was not eligible (note, this case deals with former INA provisions). Matter of Paa Plane “Flight 896/10”, 8 I&N Dec. 498 (BIA 1959) [PDF version]. The Board explained that the applicable standard was whether the passenger was “clearly and beyond doubt admissible to some country other than the United States.” Id. at 499. The passenger was a native of England and holder of an unrenewed New Zealand passport that had expired. Id. at 498. In dismissing the airline’s appeal of the fine imposed against it, the Board noted that the agreement entered into by the airliner with the U.S. Government provided that an alien presented for admission TRWOV must have “a valid visa, passport or other travel document authorizing his [or her] entry into a country beyond the United States as required by such country.” Id. at 499. In the instant case, the Board explained that the passenger possessed an expired New Zealand passport which did not guarantee that she would be admitted into England. Furthermore, because the passport contained a notation that it would not be renewed unless the passenger produced evidence of her birth in England, the Board found that “there was reason to doubt that she would be admitted to New Zealand if she applied there.” Id. It was for these reasons that the Board concluded that “the passenger was not clearly and beyond doubt admissible to some country other than the United States.” Id. The Board’s reasoning is compelling in that it discusses the evidence in the airliner’s favor — the alien’s birth in England and possession of an expired New Zealand passport — and then explains why the evidence was insufficient for establishing that the alien was clearly and beyond doubt admissible to either England or New Zealand.

Conclusion

Applicants for admission in section 240 removal proceedings face a very difficult task in establishing clearly and beyond doubt that they are not inadmissible as charged and entitled to admission. The first reason is because the alien, rather than the Government, bears the burden of proof. Thus, where the evidence is equivocal at best, the alien necessarily cannot prevail (compare to a similar situation with section 237 charges where the Government may not prevail). The second reason is because the “clearly and beyond doubt” standard is significant, regardless of how a particular adjudicator may interpret it. It requires the alien to more or less completely rebut the evidence against him or her suggesting inadmissibility.

Any alien facing section 240 removal proceedings should consult with an experienced immigration attorney immediately. An attorney will first assess whether the alien may have grounds for establishing that he or she is not an applicant for admission and thus that the burden in proceedings should be placed on the Government rather than the alien. If the alien is to be treated as an applicant for admission, an attorney may nevertheless ensure that the alien’s rights and interests are protected and present the best case under the circumstances on his or her client’s behalf.

To learn more about related issues, please see our website’s section on removal and deportation defense [see category].