Preponderance of Evidence in the Immigration Context (Matter of E-M-)


Introduction: Matter of E-M-, 20 I&N Dec. 77 (Comm. 1989)

On May 24, 1989, the former Immigration and Naturalization Service (INA) published one of the most cited immigration precedent decisions, Matter of E-M-, 20 I&N Dec. 77 (BIA 1989) [PDF version]. The decision is significant for its discussion of the “preponderance of the evidence” standard for the burden of proof, which appears in many immigration law provisions. The Commissioner held that, while the question of whether an alien satisfies his or her burden of proof by the preponderance of the evidence “will depend on the factual circumstances of each case,” the standard generally requires only that the alien establish that a fact “is probably true.”

In this article, we will examine the Matter of E-M-. To learn more about the burden of proof in the immigration context, please see our article index [see index]. To read about other immigration precedent decisions, please see our growing index on that subject [see index].

Factual and Procedural History: 20 I&N Dec. at 77-79

The applicant was a native and citizen of Jamaica. He filed a Form I-687, Application for Status as a Temporary Resident Under Section 245A of the INA, in order to seek former legalization benefits. The applicant submitted the following documentation with his application:

All documentation required under applicable regulations at 8 C.F.R. 245a.2(d) (1988);
Form I-94, Arrival-Departure Record;
Photocopies of pages from his passport; and
A number of affidavits to support his claim to eligibility.

The Commissioner explained that the applicant's Form I-94 indicated that he had been admitted to the United States on August 27, 1981, as a nonimmigrant visitor until September 21, 1981. The applicant submitted no evidence indicating his having received any extensions to his period of admission. INS records did “not indicate any departures or reentries of the applicant subsequent to August 27, 1981.” Legalization under section 245A(a) of the Immigration and Nationality Act (INA) was available only to aliens who could prove continuous unlawful presence since before January 1, 1982, making the applicant's date of entry and potential departures crucial to establishing his eligibility.

The INS examiner who interviewed the applicant recommended to the director that his application for legalization be approved. However, the examiner further recommended that the director require the applicant to submit additional documentation since the applicant had only submitted affidavits to support his claim for eligibility for legalization. The director followed the recommendation and requested that the applicant submit “proof of continuous residence in the U.S. from 1981 to the present” and “historical evidence, other than affidavits” to prove his residence. In response to the request, the applicant submitted seven affidavits, including one affidavit explaining why he could not obtain any other form of proof of his continuous residence.

The director denied the application for temporary residence status. The director explained that the application “did not contain sufficient evidence to render it approvable.” The director noted that under 8 C.F.R. 245a.2(d)(5), the applicant bore the burden of establishing “by a preponderance of the evidence that he or she has resided in the United States for requisite periods, is admissible to the United States …, and is otherwise eligible for adjustment of status.” The director concluded that the affidavits submitted by the applicant were “not corroborated by other credible evidence.” The director also concluded that, in meeting the preponderance of the evidence standard, the applicant “must provide evidence of eligibility apart from [his] own testimony and that of unsupported affidavits.” Because the director found that the applicant's evidence was insufficient for sustaining his burden of proof, the director denied the application.

The respondent appealed from the director's decision. In the appeal, the applicant did not dispute that he bore the burden of establishing eligibility for temporary resident status by a preponderance of the evidence, but rather argued that the director had erred in concluding that he had failed to sustain his burden by a preponderance of the evidence. The applicant also submitted 13 additional affidavits in support of his application.

Commissioner's Analysis of Preponderance of the Evidence Standard: 20 I&N Dec. at 79-80

The Commissioner explained that “the term 'preponderance of the evidence is not explained.'” “Whether an applicant has proved his eligibility by a preponderance of the evidence will generally depend on the factual circumstances of each case.” The commissioner stated that there are, nevertheless, “certain guiding considerations” for evaluating whether evidence establishes something by a preponderance of the evidence across different cases.

The Commissioner began his analysis by “contrasting [preponderance of the evidence] with other standard of proof.”

Preponderance of evidence is distinguishable from proof “beyond a doubt” in that “the director can still have doubts but, nevertheless, the applicant can establish eligibility.” We discuss the “clearly and beyond doubt” standard for establishing admissibility in our articles on applicants for admission [see article] and applicants for admission in removal proceedings [see article].

The Board also distinguished “preponderance of the evidence” from the “clear, unequivocal, and convincing evidence” standard required by the Supreme Court of the United States for former deportation proceedings in Woodby v. INS, 385 U.S. 276 (1966) [PDF version]. The Commissioner held that “[a]n alien does not have to prove by clear, unequivocal, and convincing evidence that he has established eligibility under section 245A of the act.” This is because “[p]reponderance of the evidence requires a lesser showing…”

While the Commissioner held that preponderance of the evidence requires a lesser showing than the “beyond a doubt” or the “clear, unequivocal, and convincing” standards, he held that “[h]ow much of a showing is sufficient to establish eligibility by a preponderance of the evidence will often turn on the factual circumstances of each case.” The unique facts of individual cases mean that “[t]here are no magic words or mathematical formulas that can describe a preponderance of the evidence so it can be applied mechanically in every case.” The Commissioner did conclude, however, that because the purpose of the preponderance of the evidence standard “is to ascertain the truth … we can make certain generalizations.” The Commissioner illustrated by condensing the three main standards of proof:

When something has to be proved beyond a reasonable doubt, the proof must demonstrate that something must be almost certainly true;
When something has to be proved by clear and convincing evidence, the proof must demonstrate that it is highly probably true;
When something is to be established by a preponderance of the evidence it is sufficient that the proof only establish that it is probably true.

In considering whether the evidence supports the conclusion that something is “probably true,” an adjudicator must consider not only the quantity of evidence, but also its quality. In the context of legalization, 8 C.F.R. 245a.2(d)(6) (1988) provided that “[t]he sufficiency of all evidence produced by the applicant will be judged according to its probative value and credibility.” The Commissioner stated that “the application of the 'preponderance of the evidence standard' may require the examination of each piece of relevant evidence and a determination as to whether such evidence, either by itself or when viewed within the totality of the evidence, establishes that something to be proved is probably true.”

Applying Preponderance of the Evidence to Legalization Generally: 20 I&N Dec. at 280-281

The Commissioner stated that evidence submitted by applicants in support of applications under section 245A of the INA could generally be grouped into three categories:

1. The Form I-687 itself. Under 8 C.F.R. 245a.2(d)(6) (1988), applicants were required to “provide evidence of eligibility apart from [their] own testimony.” The applicant's own testimony was still evidence but could not be the only evidence in support of an approvable Form I-687. The Commissioner noted that section 245A(c)(6)'s providing for criminal penalties for the submission of fraudulent documents or false statements was a “built-in mechanism to discourage applicants from making false statements and submitting false documentation.”
2. Documentary evidence submitted by the applicant in support of his application and to corroborate the information of the Form I-687. 8 C.F.R. 245a.2(d)(3)(i) (1988) provided that affidavits in a specified format constituted evidence. One key requirement was that “the letter should be signed by an employer under penalty of perjury and 'shall state the employer's willingness to come forward and give testimony if requested.'” The Commissioner stated that affidavits that complied with this requirement would be afforded more evidentiary weight than affidavits that did not. The Commissioner further stated that “in determining the weight of an affidavit, it should be examined first to determine upon what basis the affiant is making the statement and whether the statement is internally consistent, plausible, or even credible. Most important is whether the statement of the affiant is consistent with the other evidence in the record.”
3. Applicant's oral testimony. 8 C.F.R. 245a.2(j) (1988) required that all legalization applicants over the age of 14 be interviewed by an INS examiner. Based on the interview, the examiner would complete the Form I-696 and then submit it along with a recommendation to the director, who would adjudicate the application. The Form I-696 included the examiner's recommendation and the basis for the recommendation. The weight that the director should then accord to the Form I-696 depended on the examiner's statement and the basis for the statement.

In considering whether the evidence supports a grant of legalization, the Commissioner held that the adjudicator should adopt a “balanced and flexible approach … in evaluating an applicant's testimony and the overall sufficiency and probative value of the evidence he or she has provided to support his or her claim to eligibility.” The INS held that Congress expected the INS to interpret the legalization provision with flexibility in Matter of C-, 19 I&N Dec. 808, 810 (Comm. 1988) [PDF version].

Commissioner Finds That Applicant Sustained Burden of Proof by Preponderance of the Evidence: 20 I&N Dec. 881-83

The applicant stated that he had last entered the United States on August 27, 1981. The applicant submitted his original Form I-94 which was stamped by the INS showing that he was admitted to the United States as a B2 visitor in New York City on August 27, 1981. He stated that he had been self-employed as a handyman since his entry into the United States and had lived at three different addresses. The applicant submitted documents to support his claims, including: affidavits from acquaintances, a statement from a doctor, and a statement from a pastor. The Commissioner added that most of the documents were notarized and all of the affiants stated that they were willing to come forward and testify if called upon to do so.

As we noted earlier in the article, the examiner recommended that the application be approved but also recommended that the applicant submit additional documentation. The Commissioner explained that the examiner “had some doubt because he suspected fraud.” The examiner wrote in his statement to the director: “[The applicant] has only affidavits from 1981-1987 & a doctor's statement to prove his residence. I suggest more documentation to prove residence…” The Commissioner stated that this recommendation was “puzzling when considered in the context of his other observations.” The Commissioner noted that the examiner, having interviewed the applicant, “had the opportunity to view the demeanor of the applicant and to pursue whatever line of questioning was necessary.”

The Commissioner held that “[t]o the extent that the examiner recommended a grant, such evidence should be accorded much weight on the issue of the applicant's credibility absent some contrary information in the record.”

The applicant submitted additional information to the director, including “a notarized statement by an acquaintance who states he has known the applicant from 1981 until the present in New Jersey.” The applicant explained that he was unable to submit additional proof of his continuous residence because he had lived with his relatives in New Jersey and did not pay any rent. On appeal, the applicant submitted 13 additional affidavits. While the Commissioner reiterated that “the volume of evidence is not necessarily the decisive factor in the search for truth,” all of the affidavits submitted by the affiants “have explained the circumstances under which they came to know the applicant,” and all of the affiants “have stated their willingness to come forward and testify if necessary.”

The Commissioner held that ,”[w]hile it is reasonable to expect an applicant who has been residing in this country since prior to January 1, 1982, to provide some documentation other than affidavits, the absence of contemporaneous documentation is not necessarily fatal to an applicant's claim to eligibility.” The legalization regulations listed affidavits and “[a]ny other relevant document” among the evidence that could support an application (8 C.F.R. 245a.2(d)(3)(iv)(L) (1988)). The Commissioner concluded that “[t]he legal conclusion of the director that the applicant cannot meet his burden of proof by his 'own testimony and that of unsupported affidavit” was inconsistent with the regulation noted above.

The Commissioner found that the applicant's presence in the United States prior to January 1982 was established conclusively by official government documents. His continuous presence in the United States since entry was “documented by a number of affidavits ranging from acquaintances to employers to a priest.” All of the affiants stated that they were willing to come forward and testify if necessary. The information in the affidavits corroborated the information provided by the applicant on his Form I-687 regarding his continuous presence in the United States since August 27, 1981, through the filing of the Form I-687. The director did not challenge the applicant's credibility or the authenticity of the documents in denying the application.

The Commissioner concluded, based on the official documents, the applicant's testimony, and the affidavits, that the applicant had “probably been unlawfully residing in the United States since prior to January 1, 1982.” For this reason, the Commissioner sustained the applicant's appeal and found that the applicant had established eligibility for temporary resident status under section 245A by a preponderance of the evidence.


Matter of E-M- is one of the most oft-cited immigration precedent decisions. It establishes a general framework for evaluating whether evidence in any particular case establishes something by a preponderance of the evidence. Although the instant case dealt with legalization, the preponderance of the evidence standard shows up in many areas of immigration law. In general, the party bearing the burden of proof must show that something is “probably true,” or, in other words, that it is more likely true than not, to sustain the burden by a preponderance of the evidence. The evidence required to show that something is true by a preponderance of the evidence will depend on the provision at issue and the facts of the particular case. In all cases, evidence may be afforded different weight depending on its probative value.