Criminal Defense of Immigrants

 

(A)  Burdens of Proof.  Who bears the burden of proof generally turns on whether the noncitizen is charged with grounds of inadmissibility[263] or deportability.[264]  However, the DHS always bears the initial burden of showing that the respondent is not a citizen or national of the United States and may be subject to removal as a matter of jurisdiction.[265]  The respondent always bears the burden of showing that s/he is eligible for relief from removal both statutorily and as a matter of discretion.[266]

 

                (1)  Deportability.  Once alienage is established, the respondent bears an initial burden to show, by clear and convincing evidence, that s/he is lawfully present in the United States “pursuant to a prior admission.”[267]  If this burden is met, the INA then requires the DHS to show, by clear and convincing evidence, that the respondent is subject to a ground of deportation.[268]  Prior case law required the immigration authorities to show deportability by “clear, unequivocal and convincing evidence.”[269]  This standard is still widely cited in judicial decisions.[270]

 

                (2) Inadmissibility.  Once alienage is established, the ultimate burden of proof generally lies with the noncitizen respondent to show that s/he “is clearly and beyond doubt entitled to be admitted and is not inadmissible”[271] under INA § 212, 8 U.S.C. § 1182.  Somewhat different rules apply to lawful permanent residents who are returning from a trip abroad,[272] and to those charged with inadmissibility because the DHS has “reason to believe”[273] the noncitizen (or a family member), is or has engaged in certain activities, such as drug trafficking,[274] money laundering,[275] and trafficking in persons.[276]

 

(3)  Relief.  Once removability is established, the noncitizen bears the burden of showing s/he is eligible for relief from removal, both statutorily and as a matter of discretion.[277]  Three circuits have found that relief may be denied on the basis of criminal convictions or acts that were not charged as triggering grounds of removal in the Notice to Appear.[278]  Because the determination of whether an offense triggers removal, applying divisible statute analysis,[279] may turn upon who bears the burden of proof, it is possible that a court could find a conviction not to be an aggravated felony (for example) for purposes of proving deportability, but find that it is an aggravated felony for purposes of barring relief from removal.

[263] See § 18.6-18.7, infra.

[264] See § 17.9 infra.

[265] Murphy v. INS, 54 F.3d 605, 608-609 (9th Cir. 1995).  See also Matter of Guevara, 20 I. & N. Dec. 238 (BIA 1991) (respondent’s refusal to make any statement regarding alienage is, alone, insufficient to meet the Government’s burden of showing alienage by clear, unequivocal and convincing evidence; burden does not shift to respondent).

[266] INA § 240(c)(4)(A), 8 U.S.C. § 1229a(c)(4)(A).

[267] INA § 240(c)(2)(B), 8 U.S.C. § 1229a(c)(2)(B).

[268] INA § 240(c)(3)(A), 8 U.S.C. § 1229a(c)(3)(A).

[269] Woodby v. INS, 385 U.S. 276 (1966).

[270] See, e.g., Pickering v. Gonzales, 465 F.3d 263, 268 (6th Cir. Oct. 04, 2006).

[271] INA § 240(c)(2)(A), 8 U.S.C. § 1229a(c)(2)(A).

[272] See § 17.6, 18.7 infra.

[273] See § 21.6, supra.

[274] See § 21.6, supra.

[275] See § 18.23, infra.

[276] See § 18.25, infra.

[277] INA § 240(c)(4)(A), 8 U.S.C. § 1229a(c)(4)(A).

[278] Salviejo-Fernandez v. Gonzales, 455 F.3d 1063 (9th Cir. Apr. 4, 2006); Brown v. Ashcroft, 360 F.3d 346 (2d Cir. 2004); Aalund v. Marchall, 461 F.2d 710 (5th Cir. 1972).

[279] See § § 16.9-16.14, supra.