Ahn Le applied for adjustment of status through his U.S.-citizen wife. Unfortunately for him, records existed to show that in 1991, he was arrested, convicted and fined for possession of cocaine in Canada. Though Le testified in Immigration Court that he had not been convicted of this offense, he produced proof that he had applied for a pardon in Canada for this offense, which was granted. On appeal, the Fifth Circuit identified three relevant issues: (1) whether the non-citizen or the Government bears the burden of proof in determining whether grounds for mandatory denial of Le’s application for relief do not apply; (2) whether the evidence shows that this burden has been met; and (3) what effect, if any, Le’s pardon has on his admissibility.
Le argued that while a non-citizen generally bears the burden of proving that grounds for denial do not apply and that he is eligible for relief from removal, he did not bear the burden of proof in this instance because the law only allocates the burden of proof concerning factual elements of eligibility to the non-citizen. Le contended that determining eligibility for adjustment of status, i.e., whether he was convicted of an offense relating to a controlled substance, is a question of law, and thus a burden which the Government must bear. Le also argued that because he could not obtain any additional information regarding his conviction, any ambiguity weighed in favor of finding that his offense did not relate to a controlled substance.
The Fifth Circuit noted that when an non-citizen’s prior conviction is at issue, the offense of conviction itself is a factual determination, not a legal one.” However, determining whether that conviction is a particular type of generic offense (i.e. a controlled substance offense) is a legal question. "In order for Le to meet his burden, he is required to first identify the statute under which his criminal offense arises, something Le has failed to do. Here, Le does not present evidence demonstrating whether he was convicted under a Canadian federal statute, a provincial law, or even a Toronto city ordinance. The record contains no judgment, and any documentation that the immigration judge and the BIA sought from Le in support of his position that his burden has been met is seemingly unavailable or cannot be produced. Despite Le’s contention that he could not have been convicted of such an offense, the record includes a conviction for possession of cocaine and Le provides no statutory basis for his 1991 conviction that comprises of something other than a drug offense. This presentation of an inconclusive record of conviction is insufficient to meet his initial burden of demonstrating eligibility." "Le’s burden to prove that his conviction did not relate to a controlled substance could have been met, for example, by showing either that he was not convicted of the listed offense, or that his conviction did not involve a drug listed in the federal controlled substance schedules. In the absence of anything to the contrary, Le has not met his burden."
The court also noted that foreign pardons are generally not recognized for immigration purposes.
The full text of Le v. Lynch can be found here: http://www.ca5.uscourts.gov/opinions/pub/13/13-60664-CV0.pdf