Introduction

When an alien applies for a visa, entry document, admission, or otherwise attempts to enter the United States, the alien bears the burden of establishing that he or she is admissible. In this article, we will examine the alien’s burden of proof of establishing admissibility in these contexts.

Please see our related article on the burden and standard of proof for respondents charged with inadmissibility in section 240 removal proceedings [see article].

Statutory Background — Section 291 of the INA

Under section 291 of the Immigration and Nationality Act (INA), an individual who applies for a visa, entry document, admission, or otherwise attempts to enter the United States bears the burden of proof “to establish that he is eligible to receive such visa or such document, or is not inadmissible under any provision of this chapter…” (Emphasis added.) In the context of establishing no inadmissibility, no person who applies for admission “shall … be admitted to the United States unless he establishes to the satisfaction of the [Secretary of Homeland Security] that he is not inadmissible. Section 291 also places the burden on the alien to establish eligibility for a visa or entry document. However, in this article we will focus primarily on the burden to establish no grounds for inadmissibility.

Burden Never Shifts

The Board of Immigration Appeals (BIA) has held that “[t]he burden is on the applicants to show that they are admissible to the United States. Section 291 of the [INA].” Matter of Walsh and Pollard, 20 I&N Dec. 60, 63 (BIA 1989) [PDF version]. This provision has been read as not providing for any burden-shifting from the alien to the Government. That is, the Government never has the burden of establishing that the alien is inadmissible.

The Board of Immigration Appeals (BIA) discussed the burden of proof in section 291 in the context of former exclusion proceedings. It held that “[t]he burden in exclusion proceedings is upon the applicant for admission to establish that he is not inadmissible under any provision of the Immigration and Nationality Act.” Matter of D-L- & A-M-, 20 I&N Dec. 409, 411 (BIA 1991) [PDF version]. The Board held “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 United States Citizenship and Immigration Services (USCIS) has incorporated the never-shifting burden into its Policy Manual (PM) at 8 USCIS-PM K.3(B).

Under a predecessor provision, the United States Court of Appeals for the Second Circuit recognized that 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].

Inadmissibility Finding Must Be Based on Probative Evidence

While the applicant for admission has the burden of establishing that he or she is not inadmissible, courts and administrators have recognized that an inadmissibility finding must be based on evidence. The Supreme Court of the United States articulated this very principle in the context of an application for asylum: “The BIA’s determination that [the applicant] was not eligible for asylum must be upheld if ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’” (Internal citations omitted.) INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) [PDF version]. Citing to Elias-Zacarias, the USCIS wrote in its Adjudicator’s Field Manual (AFM) at section 40.6.2(c)(2)(B)(i) that “there must be some evidentiary basis for a USCIS conclusion that an alien is inadmissible under section 212(a)(6)(C)(i) of the Act.” (Section 212(a)(6)(C)(i) provides for inadmissibility for fraud or willful misrepresentation of a material fact to procure any benefit under the INA.) The Board held that any finding of inadmissibility in exclusion proceedings “must be based upon reasonable, substantial, and probative evidence.” Matter of Rico, 16 I&N Dec. 181, 185 (BIA 1977) [PDF version]. The Board has held that the factual basis for an inadmissibility finding must be “subject to close scrutiny” if the inadmissibility finding would render the alien permanently inadmissible. Matter of Healy and Goodchild, 17 I&N Dec. 22, 29 (BIA 1979) [PDF version].

In Matter of D-L- & A-M-, the Board considered whether an alien was excludable for fraud or willful misrepresentation of a material fact. The Board held that the alien was not excludable “where there is no evidence that the alien presented or intended to present fraudulent documents containing material misrepresentations to an authorized official of the United States Government in an attempt to enter on those documents.” Matter of D-L- & A-M-, 20 I&N Dec. at 412. From this decision, the USCIS at AFM 40.6.2(c)(2)(B)(i) extrapolated the rule that, where there is no evidence that an applicant is inadmissible under a particular provision, “then USCIS should find that the applicant has met the burden of proving that he or she is not inadmissible [under the provision].”

The USCIS addresses inadmissibility for fraud and willful misrepresentation in its Policy Manual (PM) at 8 USCIS-PM J.3(D)(5). Here, the USCIS wrote that, when inadmissibility is an issue in a case, the USCIS does not bear the burden of proving that the alien is inadmissible. Rather, “[a]s long as there is at least some evidence that would permit a reasonable person to find an applicant inadmissible, the applicant must establish that the inadmissibility ground does not apply.”

The issue of inadmissibility charges in removal proceedings is not perfectly analogous to what we are addressing in this particular article. Nevertheless, both applicants for admission outside of proceedings and applicants in proceedings bear the burden of proving they are not inadmissible, and the burden cannot shift to the Government. In the context of removal proceedings involving inadmissibility charges, the United States Court of Appeals for the Eleventh Circuit held that “a finding of inadmissibility must be based on something more than the alien’s failure to prove a negative.” Garces v. U.S. Atty. Gen., 611 F.3d 1337, 1346 (11th Cir. 2010) [PDF version].

Thus, while the burden is always on the applicant to establish no inadmissibility, and never on the USCIS to establish inadmissibility, any inadmissibility finding must be based on “reasonable, factual, and probative evidence.” The USCIS PM language is interesting in that it indicates that, while the applicant does bear the burden of proof, this burden generally kicks in where there “is at least some evidence that would permit a reasonable person to find an applicant inadmissible…” It appears that the USCIS policy is in line with the Eleventh Circuit decision in Garces. While the alien always has the burden of establishing no inadmissibility grounds, the alien cannot be found to be inadmissible for merely failing to prove a negative. If there is no evidence suggesting inadmissibility under an inadmissibility provision, the USCIS should find that the applicant has sustained his or her burden of proof.

Standard of Proof

Under section 240(c)(2)(A) of the INA, a respondent in removal proceedings who has been charged as being inadmissible has the burden of establishing that he or she is admissible “clearly and beyond doubt.” As we will see, the standard appears to be generally lower outside of removal proceedings.

The Board held with regard to former exclusion proceedings “that the applicant must establish admissibility by at least a preponderance of the evidence.” Matter of Rivero-Diaz, 12 I&N Dec. 475, 476 (BIA 1967) [PDF version]. In other words, the applicant must, at a minimum, show that it is more likely than not that he or she is admissible. Because the applicant always bears the burden of proof and the applicant must establish that he or she is more likely than not admissible, the Board explained that, “where the evidence is of equal probative weight, the party having the burden of proof cannot prevail.” Id. Thus, if the evidence for and against admissibility “is of equal probative weight,” the applicant will be found to have not sustained his or her burden of establishing no ground of inadmissibility. In the context of fraud and willful misrepresentation of a material fact, the USCIS continues to take the position that where the evidence for and against inadmissibility under section 212(a)(6)(C)(i) “is of equal and probative weight,” the applicant has failed to establish that he or she is not inadmissible on this ground. See AFM 40.6.2(c)(2)(B)(i); 8 USCIS-PM J.3.

At AFM 40.6.2(c)(2)(B)(i), the USCIS took the position that “[t]he burden of proof during the immigration benefits seeking process is always on the alien to establish by a preponderance of the evidence that he or she is not inadmissible.” Thus, the AFM generally adopted the rule — without citation — from Matter of Rivero-Diaz. Interestingly, the AFM said that the standard was “preponderance of the evidence” rather than at least the preponderance of the evidence. This AFM section stated unequivocally that an alien suspected of being inadmissible under section 212(a)(6)(C)(i) for fraud or willful misrepresentation is required to establish he or she is not inadmissible by a preponderance of the evidence. Interestingly, the term “preponderance of the evidence” appears nowhere in the 8 USCIS-PM J.3, which has supplanted the AFM guidance on inadmissibility for fraud and willful misrepresentation of a material fact. Instead, the PM requires the applicant to prove one of several points to rebut possible inadmissibility for fraud or willful misrepresentation of a material fact. However, while the PM does not clearly articulate the standard of proof, it cites to Matter of Rivero-Diaz for the proposition that an applicant who does not rebut an inadmissibility finding “is therefore inadmissible because he or she has not satisfied the burden of proof.” This at least strongly suggests that the USCIS continues to view the preponderance of the evidence as the proper standard in the section 212(a)(6)(C)(i) context.

However, the USCIS-PM articulates a higher burden in cases where the USCIS officer determines that the applicant is inadmissible for falsely claiming U.S. citizenship. At 8 USCIS-PM K.3(B)(3), the USCIS states that “[i]f the officer determines that the applicant is inadmissible based on a false claim to U.S. citizenship, the applicant has the burden of establishing [one of serval facts] clearly and beyond doubt.” (Emphasis added.) The Board specifically applied the “clearly and beyond doubt” standard to this inadmissibility ground in Matter of Bett, albeit in a case where an applicant in removal proceedings was seeking adjustment of status. Matter of Bett, 26 I&N Dec. 437, 440 (BIA 2014) [PDF version]. However, prior to a formal inadmissibility determination, 8 USCIS-PM K.3(B)(2) examines where evidence suggests that the applicant may be inadmissible under this ground. Here, the PM states that “[i]f there is evidence that would permit a reasonable person to conclude that the applicant is inadmissible under this ground, the officer should find that the applicant has not successfully met the burden of proof.” Here, it is worth noting that the applicable precedent in Matter of Rivero-Diaz stated that an alien in exclusion proceedings has the burden of establishing admissibility at least through the preponderance of the evidence. The rule suggests that the standard may be higher in some cases. This is perhaps reflected in the USCIS’s apparently different treatment of inadmissibility for fraud or willful misrepresentation and inadmissibility for false claims to U.S. citizenship.

Conclusion

Applicants for admission into the United States bear the burden of establishing that they are not inadmissible. This burden can never shift to the Government. The same holds true for applicants for adjustment of status. Applicants for visas and entry documents bear a similar burden to establish that they are eligible for a visa or entry document, respectively.

Notwithstanding the applicant’s non-shifting burden, an applicant is generally only called upon to establish no inadmissibility where “reasonable, substantial, and probative evidence” suggests that he or she is inadmissible under a particular provision. As the Eleventh Circuit noted, an applicant cannot be found to be inadmissible for failure to prove a negative in the absence of evidence of inadmissibility.

Those seeking visas, entry documents, admission, and/or adjustment of status should consult with an experienced immigration attorney for case-specific guidance. This is especially important where the applicant is likely to be found to be inadmissible or has specific concerns regarding his or her admissibility. Where potential inadmissibility is an issue, an experienced attorney will be able to assess the facts of the case and advise his or her client on how he or she should proceed.